Punjab-Haryana High Court
Dilraj Singh vs State Of Punjab on 17 October, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla, Amol Rattan Singh
Criminal Appeal No.D-168-DB of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) Criminal Appeal No.D-168-DB of 2012
Date of Order:17th October, 2014
Dilraj Singh son of Amrik Singh ...Appellant
Versus
State of Punjab ..Respondent
(2) Criminal Appeal No.D-205-DB of 2012
Inderjit Singh @ Lada son of Kulwant Singh
..Appellant
Versus
State of Punjab ..Respondent
(3) Criminal Appeal No.D-209-DB of 2012
Sahib Singh son of Sohan Singh
..Appellant
Versus
State of Punjab ..Respondent
(4) Criminal Appeal No.D-303-DB of 2012
Avtar Singh son of Gurmej Singh
..Appellant
Versus
State of Punjab
..Respondent
NARESH KUMAR
2014.10.29 16:37
I attest to the accuracy and
authenticity of this document
Chandigarh
Criminal Appeal No.D-168-DB of 2012 -2-
(5) Criminal Appeal No.D-357-DB of 2012
Nirmal Singh son of Harbans Singh
..Appellant
Versus
State of Punjab
..Respondent
(6) Criminal Appeal No.D-660-DB of 2012
1. Lal Singh son of Surjit Singh
2. Karaj Singh son of Gurnam Singh
3. Ranjit Singh son of Dyal Singh
4. Gurdeep Singh son of Somraj Singh
5. Kirandeep Singh son of Charan Singh
6. Satnam Singh son of Gurnam Singh
7. Satnam Singh son of Sohan Singh
8. Gurpreet Singh son of Mohan Singh
9. Dharminder Singh son of Gulzar Singh
10. Satnam Singh son of Mahabbat Singh
11. Balwinder Singh son of Dhanna Singh
..Appellants
Versus
State of Punjab
..Respondent
NARESH KUMAR
2014.10.29 16:37
I attest to the accuracy and
authenticity of this document
Chandigarh
Criminal Appeal No.D-168-DB of 2012 -3-
(7) Crl. Revision No.77 of 2014
Bikramjit Singh
..Appellant
Versus
State of Punjab
..Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. Vinod Ghai, Senior Advocate with
Mr. Simardeep Singh, Advocate,
(in Crl. Appeal No.D-168-DB of 2012)
Mr. Ajay Majithia, Advocate and
Mr. Ish Puneet Singh, Advocate,
for the appellants
(in Crl. Appeal No.D-660-DB of 2012 and
Crl. Appeal No.D-303-DB of 2012).
Ms. Isha Goyal, Advocate, for
Mr. Vikram Chaudhary, Senior Advocate,
for the appellants
(in Crl. Appeal No.D-205-DB of 2012)
Mr. Veneet Sharma, Advocate,
for the appellants
(in Crl. Appeal No.D-209-DB of 2012 and
(in Crl. Revision No.77 of 2014).
Mr. Mohinder Kumar, Advocate,
for Mr. L.M.Gulati, Advocate,
for the appellants in
(in Crl. Appeal No.D-357-DB of 2012)
Ms. Manjari Kaul Nehru, Addl. A.G.,Punjab.
for the respondent-State.
RAJIVE BHALLA, J.
By way of this order, we shall decide six appeals and one revision petition. The appellants, challenge judgment of conviction NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -4- dated 14.01.2012 and order of sentence dated 14.01.2012, convicting and sentencing the appellants in the following terms:-
Name of the Under Sentence Fine In default of convicts payment of fine Sections Lal Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months 302 IPC Life Rs.5000/- S.I. 1 year Imprisonment 302/149 IPC Life Rs.5000/- S.I. 1 year Imprisonment 307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Avtar Singh @ 148 IPC R.I. 3 years Rs.1000/- S.I. 2 months Malli 302/149IPC Life Rs.5000/- S.I. 1 year Imprisonment 307 IPC R.I.10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I. 15 days 27 Arms Act R.I. 3 years Rs.1000/- S.I 6 months Karaj Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months 302/149 IPC Life Rs.5000/- S.I. 1 year Imprisonment 307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Nirmal Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Satnam Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months
son of Sohan
Singh
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Ranjit Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -5- Name of the Under Sentence Fine In default of convicts payment of fine Sections 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Satnam Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Kirandeep 148 IPC R.I 3 years Rs.1000/- S.I 2 months
Singh
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Balwinder 148 IPC R.I 3 years Rs.1000/- S.I 2 months
Singh
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Sahib Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Gurdeep 148 IPC R.I 3 years Rs.1000/- S.I 2 months
Singh
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Satnam Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months
son of
Mohabbat
Singh
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -6- Name of the Under Sentence Fine In default of convicts payment of fine Sections Dharminder 148 IPC R.I 3 years Rs.1000/- S.I 2 months Singh 302/149 IPC Life Rs.5000/- S.I. 1 year Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Inderjit Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months
alias Ladda
302 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Dilraj Singh 148 IPC R.I 3 years Rs.1000/- S.I 2 months
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307 IPC R.I. 10 years Rs.2500/- S.I. 6 months
506 IPC R.I. 1 year Rs.100/- S.I.15 days.
Gurpreet 148 IPC R.I 3 years Rs.1000/- S.I 2 months
302/149 IPC Life Rs.5000/- S.I. 1 year
Imprisonment
307/149 IPC R.I. 10 years Rs.2500/- S.I. 6 months 506 IPC R.I. 1 year Rs.100/- S.I.15 days.
All sentences were ordered to run concurrently. Criminal Revision No.77 of 21014, has been filed by Bikramjit Singh, challenging order dated 21.07.2008, passed by the Juvenile Justice Board, holding that he was not a juvenile on the date of the offence.
The Medical Officer, Civil Hospital, Ajnala, forwarded information to Police Station, Ajnala, that Saroop Singh son of Gurnam Singh, resident of Issapur and Harpreet Singh son of Lal Singh, resident of Othina, have succumbed to fire arms NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -7- injuries and Sarabjit Singh son of Dial Singh, resident of Issapur, is admitted in hospital, in a precarious condition.
SI/SHO Jaswant Singh, Officer Incharge, Police Station, Ajnala, rushed to the hospital with ASI Chain Singh and other police officials and recorded, Ex.PA, a statement, made by PW1 Sarabdial Singh son of Mohinder Singh that Gurudwara Baba Wadhawa Singh was managed by Lal Singh son of Surjit Singh, resident of Kasel, Patti Harbanspura, Police Station, Sarai Amanat Khan but as his management and maintenance was unsatisfactory, inhabitants of the village removed Lal Singh and in his place, entrusted management of the Gurdwara to Baba Paramjit Singh son of Sawinder Singh, resident of Bhullar, P.S.Lopoke, but as Baba Lal Singh was annoyed, he wanted to take control of the Gurdwara. At about 12.30 a.m.(night), when Sarabdial was sleeping in his house, situated near the Gurdwara, he heard the sound of gun fire and abuses etc. followed by an alarm raised by Paramjit Singh Granthi that Baba Lal Singh has come with his supporters. Sarabdial Singh came out of his house and saw Baba Lal Singh armed with a gun, Avtar Singh s/o Gurmet Singh, resident of Issapura, armed with a .12 bore gun, Dilraj Singh s/o Amrik Singh, resident of Issapur, armed with a gun, Satnam Singh son of Sohan Singh, Ranjit Singh son of Dial Singh, resident of Thathgarh, Satnam Singh son of Gurnam Singh resident of Kasel Nirmal Singh son of NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -8- Harbans Singh, resident of Dhand, Harsharan Singh @ Charan son of Mohinder Singh Cheema, Gurpreet Singh son of Sohan Singh, resident of Othian, Karaj Singh son of Gurnam Singh, resident of Thathgarh, Bhagat Singh son of Bhola Singh, resident of Kasel, Balwinder Singh @ Ladi son of Dhanna Singh, caste Majbi, r/o Ranewali, Gurdeep Singh son of Somraj, Caste Majbi, resident of Bohru, Police Station Sadar, Amritsar, Sahib Singh son of Sohan Singh, resident of Raiwali, Jagjit Singh son of Udham Singh, resident of Basarke, Kirandeep Singh son of Charan Singh, resident of Kasel, Dharminder Singh son of Gulzar Singh, resident of Nanehara Tehsil Khurmana, Bikramjit Singh son of Sahib Singh, Majbi, resident of Ranewali, Satnam Singh son of Mohabbat Singh, resident of village Basarke, all armed with sticks(Dangs), sota, swords, threatening Granthi Paramjit Singh, making vulgar remarks and abusing, him. At this, Saroop Singh, Surinder Singh sons of Gurnam Singh and Sarabjit Singh son of Dial Singh, residents of Issapur went to the roof of the langar hall of the Gurdwara and started throwing brick-bats. Harpreet Singh son of Lal Singh, resident of Othian also went on the roof of Gurdwara and started throwing brick bats. Baba Lal Singh fired a shot at the roof of the Langar Hall which hit Saroop Singh on the forehead near the eyebrow,who fell down. Sarabjit Singh received injuries and moved back. Avtar Singh @ Malli fired a gun shot from a 12 bore gun towards NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -9- Sarabjit Singh, who received various grievous injuries in this incident. Thereafter, a supporter of Baba Lal Singh namely Inderjit Singh @ Ladda son of Kulwant Singh, whose house is at the rear of Gurdwara climbed the roof of his cattle shed and fired a gun shot from his 12 bore rifle which hit Harpreet Singh on the rear side of his head, Dilraj Singh also fired a gun shot from his rifle which hit Harpreet Singh. The injured raised an alarm "Maar Ditta, Maar Ditta". The assailants who had parked their vehicles on the other side fled from the spot with their respective weapons, in vehicle Tata 207, PB-02-AQ-9918, and Mohindra Bolero camper, PB-02-AR-9512. Saroop Singh and Harpreet Singh expired, on the way to the hospital. Sarabjit Singh was referred to Civil Hospital, Amritsar. After examining Saroop Singh and Harpreet Singh, the doctor declared both of them dead. The cause of the dispute is that Baba Lal Singh wanted to take forcible possession of Gurdwara Wadhawa Singh.
The statement, Ex.PA, was reduced into writing at 3.45 AM and was vide endorsement Ex.PA/1 forwarded by the SHO to the police station, where FIR, Ex.PA/2 was registered by Jaswant Singh. The Investigating Officer prepared inquest reports, Ex.PH and Ex.PL, pertaining to Sarup Singh son of Gurnam Singh and Harpreet Singh son of Lal Singh, respectively. The SHO forwarded applications Ex.PW13/1 and PW13/2, through HC Surjit Singh and HC Inderjit Singh, for post NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -10- mortem. The Investigating Officer, Sarbdial Singh and other police officials, visited the place of occurrence at village Issapur, picked up blood stains from the roof of the langar hall and converted them into a parcel, Ex.P1, sealed with the seal "KK' and took the parcel into possession vide memo Ex.PW17/B. The Investigating Officer also picked up blood stains from the place where Sarabjit Singh was injured and converted them into a parcel, sealed with seal 'KK', which was taken into possession, vide memo Ex.PW17/A. The Investigating Officer took into possession 3 empty 12 bore cartridges from the roof of the langar hall and one live .315 bore cartridge from the roof of Gurdwara and converted them into parcels, sealed with the seal 'KK', which were taken into possession, vide memo Ex.PW17/D. The parcels are Ex.P3 and Ex.P4. The memos were attested by Mahabir Singh and ASI Harpal Singh. The Investigating Officer also took into possession blood stains from the roof of the Gurdwara, from the corner of the southern side, where deceased Harpreet Singh had fallen, which was converted into a parcel and sealed with seal 'KK' and taken into possession vide memo Ex.PW17/C. The parcel is Ex.P5. The Investigating Officer also prepared a rough site plan, Ex.PW13/2. HC Surjit Singh produced the clothes of the deceased Saroop Singh and Harpreet Singh, before the Investigating Officer, which were converted into parcels and sealed with the seal 'KK' and taken NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -11- into possession, vide memo Ex.PW16/A and PW16/B, respectively. The parcels are, Ex.P6 and Ex.P7. Karaj Singh, Nirmal Singh, Satnam Singh, another Satnam Singh, Sahib Singh, Ranjit Singh, Kirandeep Singh, Bhagat Singh, Bikram Jit Singh, Balwinder Singh, Jagjit Singh, Dharminder Singh, Gurdeep Singh and Harsharan Singh were arrested by the Investigating Officer from the Langar Hall of Gaggo Mahal Gurdwara. A kirpan each was recovered from Karaj Singh and Nirmal Singh, which was taken into possession, vide memo Ex.PW16/C and Ex.PW16/D, respectively, after preparing rough sketches. The rough sketches of kirpans, are Ex.PW16/E and Ex.PW16/F. The kirpans are Ex.P8 and P9. The Investigating Officer also took into possession a TATA 207 vehicle, bearing registration No.PB-02-AQ-9918, vide memo Ex.PW16/G. On 02.09.2007, the Investigating Officer filed an application Ex.PH/1, seeking the opinion of the doctor whether Sarabjit Singh is fit to make a statement. The doctor opined that Sarabjit Singh is unfit to make a statement. On 03.09.2007, The Investigating Officer, arrested Avtar Singh along with his double barrel gun from Adda Mehal Mukhari. The double barrel gun contained two live cartridges, which were recovered after unloading the gun. The gun and cartridges were taken into possession, vide memo Ex.PM, attested by ASI Darshan Singh and HC Suba Singh. The parcel of the gun and cartridges is NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -12- Ex.P10. A memo of arrest and intimation served upon Avtar Singh, is Ex. P13/3. The case property was handed over to the MHC of the police station.
On 08.09.2007, the Investigating Officer filed an application, seeking opinion whether Sarabjit Singh is fit to make a statement, but the doctor once again declared him unfit. On 23.09.2007, on an application Ex.PL/1, the doctor declared Sarabjit Singh fit to make a statement, vide endorsement Ex.PL. The Investigating Officer recorded the statement of Sarabjit Singh on 23.09.2007. The concerned doctor handed over a container containing pellets recovered from the injuries to Sarabjit Singh, to the Investigating Officer, which was deposited with the MHC. A licence recovered from Avtar Singh is Ex.PS. On 06.09.2007, while searching for the accused, Lal Singh came to the bridge of the drain of village Karyal Dharamkot in a Bolero vehicle bearing No.PB-02-AR-9552 and was arrested. On his personal search a .315 bore country made pistol was recovered from the right pocket of his underwear(Kachhera) and on unloading of the pistol a live .315 bore cartridge was recovered. A live cartridge was recovered from the right pocket of the shirt of Baba Lal Singh. The pistol and cartridges were converted into a parcel, sealed with the seal 'KK' and taken into possession vide memo Ex.PW17/E. The memos were attested by ASI Harpal Singh and HC Naresh Kumar. The parcel of the NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -13- pistol and cartridges is Ex.P11. On recovery of this pistol, a separate FIR No.151 of 2007 was registered against Baba Lal Singh. The Bolero vehicle was taken into possession vide memo Ex.PN. The memo of arrest is Ex.PW13/4. The case property was deposited with the MHC. The Investigating Officer recorded the statements of witnesses after which he was transferred and investigation was concluded by SI Naurang Singh who filed the final report and also filed a supplementary report after the arrest of Gurpreet Singh. The final report led to commitment to the Court of Sessions, where after satisfying itself as to the offences committed, charges were framed under Sections 148, 302, 307 read with Section 149 of the IPC, 506 and 27 of the Arms Act, but as the accused pleaded not guilty and claimed trial, the prosecution was directed to adduce evidence.
The prosecution has examined twenty witnesses and produced a large number of documents.
PW1 Sarabdial Singh, is the complainant, who has deposed in essence in accordance with his statement, Ex.PA, made to the police.
PW2 Sarabjit Singh, is the injured eye witness, who has deposed about his injuries and the incident in detail.
PW3 Paramjit Singh, another eye witness, has deposed that prior to the occurrence he was working as Granthi NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -14- with Baba Lal Singh in Gurdwara Baba Wadhawa Singh village Issapur. Baba Lal Singh misused donations of the Gurdwara and in his place the villagers appointed Paramjit Singh as sewadar of the Gurdwara. Baba Lal Singh, therefore, harbored a grudge against Paramjit Singh. Baba Lal Singh had come to the Gurdwara on one or two earlier occasions and threatened Paramjit Singh that he would beat him with shoes. He has also deposed about the incident as an eye witness.
PW4 Dr. Satinder Pal Singh, Medical Officer, Civil Hospital, Ajnala, conducted post mortem on Saroop Singh and Harpreet Singh, deceased and found the following injuries on Saroop Singh:-
"1. A wound measured 1cm x .5 cm on forehead just above the left eyebrow.
2. A wound measured 1 cm x 0.5 cms at the centre of forehead at the root of nose
3. 0.5 cm x 0.5cm wound was present just lateral to the right eye brow.
4. Two wounds measured 0.5 cm x 0.5 cm on the right side of the nose and right eye brow.
5. 1.5 cm x 1 cm wound at the base of neck left side over the clavicle."
Dr. Satinderpal Singh, deposed that in his opinion the cause of death is instant damage to the brain and bleeding NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -15- within the brain caused by gun shot injuries which were ante mortem and sufficient to cause death in the ordinary course of nature.
Dr. Satinderpal Singh also conducted the post mortem of Harpreet Singh son of Lal Singh and found the following injuries:-
" 1. Wound measured 3 cm x 3 cm was present on right side of skull and behind right pinna of ear.
2. Wound of exit measured 8 cms x 7 cms was present on the upper part of the occipital wound. Brain matter was coming out from the wound."
Dr. Satinderpal Singh proved carbon copy of the post mortem report Ex.PD and pictorial diagram Ex.PE as well as opined that cause of death is instant damage of the brain caused by a gun shot which was ante mortem and sufficient to cause death in ordinary course of nature.
PW5 HC Major Singh, PW8 HC Jang Bahadur, PW14 HC Surjit Singh, PW17 (wrongly numbered) ASI Dharminder Singh and PW18 HC Harjit Singh, have tendered affidavits Ex.PF, Ex.PO, Ex.PU, Ex.PV, Ex.PW17/A and Ex.PW18/A, respectively to link the chain of the prosecution evidence. PW12 Rishi Ram, Draftsman, proved the site plan Ex.PT, which he prepared at the instance of Sarbdial Singh, the complainant, after visiting the place of occurrence.
NARESH KUMAR2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -16-
PW6 Dr. Harmohinder Singh Nagpal, Consultant Surgeon, Hartej Maternity and Nursing Home, Ranjit Avenue, Amritsar, operated upon Sarabjit Singh son of Dial Singh and deposed as to injuries on the person of Sarabjit Singh. His notes prepared during the operation are as follows:-
"1. The patient was operated on Ist of September, 2007.
2. The patient was put under anesthesia and mid line incision made extending both above and below umbilicus.
3. The peritoneal cavity full of blood clots and intestine contents.
4. Two big perforation on terminal part of ileum about 6 inches proximal to Ileocaecal Junction and about 3 inches apart. One on the mesenteric and other on anti mesenteric, about 2 cms in diameter.
5. Rest of the abdominal viscera were normal."
The part of ileum bearing perforation was resected as the viability around the margins was doubtful. Continuity restored by end to end anastamosis with 3/0 vicryl and silk.
Pertoneal cavity mopped up and rinsed with about 10 litres of warm saline. Complete NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -17- haemostasis ensured and wound closed in layers with two abdominal drains in peritoneal cavity.
Wound on the right buttock about 2 cms in diameter was explored and a foreign body (bullet) was recovered. The tip of bullet was medial. Wound in the left inguinal region explored, debrided and stitched."
The doctor also proved bed head ticket Ex.PG and declared the patient fit to make statement vide endorsement Ex.PL.
PW7 ASI Darshan Singh, deposed that on 03.09.2007, while he was posted at Police Station, Ajnala, he along with SHO Kuldip Kumar and other police officials raided Adda Mehal Mukhari, where Avtar Singh was apprehended by the SHO. His personal search led to recovery of a 12 bore double barrel gun, along with its licence and two cartridges, which were taken into possession vide memo Ex.PM. Darshan Singh further deposed that on 06.09.2007, Lal Singh was apprehended and Bolero Camper was taken into possession vide memo Ex.PN.
PW9 Dr. Manpreet Kaul, Lecturer, Department of Forensic Medicine, Government Medical College, Amritsar, deposed that on 10.09.2007, she conducted the medico legal NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -18- examination of Sarabjit Singh son of Dial Singh and observed as many as five injuries as detailed in the medico legal report. She also proved the carbon copy of MLR as Ex.PP as well as her opinion Ex.PR.
PW10 Lakhwinder Singh, Clerk, D.C. Office, Amritsar, proved licence of .12 bore double barrel gun, Ex.PS, which was issued by the Additional District Magistrate, in the name of Avtar Singh son of Gurmej Singh, resident of village Issapur, District Amritsar.
PW11 Harjinder Kumar, Clerk, DTO Office, Amritsar, deposed that as per their record, vehicle no.PB-02-AQ-9918, which is a bus, was registered in the name of Sandhu Highways Transport Co-operative Society Limited, 233, Hide Market, Amritsar,. Harjinder Kumar further deposed that Mahindra Pick up bearing registration No.PB-02-AR-9552 was registered in the name of Nirmal Mahajan son of Buta Mal Mahajan, 113, Pawan Nagar, Batala Road, Amritsar.
PW13 Inspector, Kuldeep Kumar, who had retired by then, has deposed with respect to the recording of statement of the complainant, the post mortem, the inquest report, lifting of blood stained soil, preparation of site plan, arrest of the accused, recovery of weapons, recording of statements of the complainant, the injured eye witnesses and other witnesses, but as we have already more or less narrated his deposition while NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -19- narrating facts that led to the filing of a final report, it is not necessary to repeat his deposition.
PW15 Poonam Ohri, has deposed that on 13.10.2007, while posted as Radiologist at Civil Hospital, Amritsar, she gave radiological opinion regarding Sarabjit Singh son of Dial Singh and proved her report Ex.PW and three sikagrams Ex.PX, Ex. PY and Ex.PZ, respectively.
PW19 SI Naurang Singh, deposed that in the month of November, 2007, the investigation of this case was entrusted to him and on 22.11.2007 he recorded the statement of MHC Danwinder Singh, HC Major Singh and others, on 26.11.2007, the statement of draftsman Rishi Ram and on completion of the investigation challan was presented in the court.
PW20 Ranjit Singh, Retired Sub Station Operator, deposed that as per record, the electricity supply on the intervening night of 31.08.2007/01.09.2007 remained regular to village Issapur and the surrounding villages. No interruption was noticed as per the official record.
The prosecution, thereafter, closed its evidence. The incriminating circumstances appearing in the prosecution evidence were put to the appellants under Section 313 Cr.P.C.
Karaj Singh, Satnam Singh son of Sohan Singh, Satnam Singh son of Gurnam Singh and Satnam Singh son of Mohabbat NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -20- Singh, appellants in Criminal Appeal No.D-660-DB of 2012, stated that they are Sewadars of the Gurdwara and were sleeping in the Gurdwara at the time. The occurrence had taken place on the roof of the adjacent house. They did not open the door during the night. In the early morning, they were made to open the door by the police. They further stated that Baba Lal Singh was never ousted from Gurdwara and who did not stay in the Gurdwara during the night because he is resident of Gurdwara Thathgarh.
Baba Lal Singh stated that he is heading Gurdwaras in various cities of Punjab and at no time was he asked to leave the Gurdwara by residents of village Issapur. Paramjit Singh, in connivance with Jaswinder Singh etc. wanted to take forcible possession of the Gurdwara. On the night of the alleged occurrence, he was not present in the Gurdwara. He had already filed a Civil Suit against Prabhjot Singh, Jaswinder Singh, in which status quo was ordered. He was present at the Reliance Petrol Pump when he was called to the police station through a sewadar and on reaching the Police Station, in a Bolero jeep, he was detained. The Sewadars including Karaj Singh told him about the incident on 31.04.2007 etc. The story has been made up. The country made pistol has been planted by the police.
Avtar Singh co-accused stated that the complainant party harboured a grudge against him for correction of khasra girdwari of land under cultivation of Surinder Singh, brother of the complainant. He was picked up by the police on 02.09.2007 from his house along with a gun and cartridges and falsely implicated. NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -21-
In defence, the accused examined DW1 Kabal Singh, DW2 Tilak Raj and DW3 Ravinder Kumar.
After considering the evidence on record, the trial court accepted the story put forth by the prosecution, rejected the defence and convicted and sentenced all the accused in terms referred to in the opening part of the judgment.
Counsel for the parties have addressed separate arguments but as most of the arguments are common, we shall refer to their separate arguments only where necessary.
Counsel for the appellants submit that though no overt act is attributed to most of the appellants, they have been convicted with the aid of Sections 148/149 of the IPC for being members of an unlawful assembly and a few of them for the death of two persons and for injuries to another. Apart from the appellants who are alleged to have fired gun shots, the other accused have not been attributed any injury whether to the deceased or the injured. The motive as alleged is that as Baba Lal Singh was ousted from Gurdwara by the villagers and management was entrusted to Paramjit Singh, he wanted to take forcible possession. The prosecution has not produced any evidence to prove that Baba Lal Singh was ousted from the Gurdwara or that he wanted to take forcible possession. In fact Baba Lal Singh had already filed a Civil Suit, in which, vide order dated 13.08.2007, an injunction had been granted. Therefore, there was no reason for Baba Lal Singh or his so called supporters to make an attempt to take possession on the night intervening 30th August and Ist of September, 2007. This apart, the prosecution has NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -22- not adduced any evidence of any proceedings taken by villagers to oust Baba Lal Singh from the Gurdwara and install Paramjit Singh, in his place. The prosecution having failed to prove the very genesis of the dispute, the entire case is rendered doubtful and must, therefore, be discarded.
Another argument advanced by counsel for the appellants, is that the three eye witnesses, namely, PW1 Sarabdial Singh, PW2 Sarabjit Singh and PW3 Paramjit Singh, have deposed that after Baba Lal Singh and his supporters entered the Gurdwara, Saroop Singh, Sarbdial Singh, Surinder Singh and Harpreet Singh climbed the roof of the langar hall and started throwing brick bats, thereby proving that the incident if at all it occurred in the manner projected, by the prosecution commenced with the complainant side throwing brick bats. The aforesaid admission rules out any culpability much less applicability of Sections 148 and 149 of the IPC.
It is further submitted that prosecution witnesses have admitted that Karaj Singh, Satnam Singh, Gurpreet Singh, Nirmal Singh, Bhagat Singh, Sahib Singh, Bikramjit Singh, Gurdip Singh etc. are sewadars and reside in the Gurdwara. Therefore, there is no question of their being part of the unlawful assembly or harbouring any common object, to take possession of the Gurdwara. An unlawful assembly inhers a common object. In the absence of any proof of the common object much less object to take possession, the trial court has wrongly convicted and sentenced the appellants by invoking Section 148 of the IPC.
NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -23-
It is further contended that even if it is presumed that gun shots were fired by persons said to be armed with fire arms as no overt act is attributed to any of the other accused, who were said to be armed with 'sotas' gandasis' etc., they cannot be held liable for murder by invoking Sections 148 and 149 of IPC, as mere presence without any overt act does not translate into common object particularly when there is no evidence of this common object and participation in any overt act. The appellants, who have not committed any overt act, may, therefore, be acquitted.
As regards individual offences, it is submitted that a .315 bore pistol was recovered from Baba Lal Singh, who is alleged to have fired a shot at Saroop Singh. The injury on Saroop Singh reveals the presence of pellets, which can only be fired from a 12 bore gun. Sarabjit Singh is said to have suffered two injuries, one an exit and the other an entry wound but this one injury is attributed to both Baba Lal Singh and Avtar Singh. The injury to Sarabjit Singh also shows blackening and the entry and the exit wounds are parallel, thereby indicating a close range shot fired by some one standing at the same level as Sarabjit Singh. The prosecution story is that the gun shots that hit Sarabjit Singh were fired from the ground at Sarabjit Singh, who was standing on the roof. In case the gut shot had been fired from the ground, the bullet after entry would have taken an upward trajectory instead of the parallel trajectory detected by the doctor.
Avtar Singh is also alleged to have fired at Sarabjit Singh but the same injury is attributed to Baba Lal Singh. The gun shot is NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -24- alleged to have been fired from the roof of Avtar Singh's cow shed but the injury discloses blackening and as the entry and exit wounds are parallel, prove that the prosecution version is false. It is further submitted that Avtar Singh has proved that he had a dispute with the brother of Paramjit Singh relating to correction of khasra girdawari of a parcel of land, thereby establishing the reason for his false implication. A .12 bore double barrel gun was recovered from Avtar Singh whereas the injury suffered by Sarabjit Singh is not by a .12 bore cartridge. The injury, therefore, could not have been inflicted by Avtar Singh.
As regards Inderjit Singh, it is alleged that he was allegedly armed with a rifle and fired at the head of Harpreet Singh but the gun has not been recovered, thereby proving that a false case has been foisted upon Inderjit Singh, a supporter of Baba Lal Singh. Furthermore, prosecution witnesses have alleged that Inderjit Singh fired from .12 bore gun but medical evidence proves that Harpreet Singh died of a bullet injury, thereby casting a serious doubt on the prosecution version. It is further submitted that during investigation, Inderjit Singh was declared innocent but was summoned under Section 319 of Cr.P.C. As regards, Dilraj Singh, it is argued that he was allegedly armed with a rifle and fired a shot which is said to have hit the face of Saroop Singh. The weapon was neither recovered nor does the injury on Saroop Singh tally with the weapon alleged. Saroop Singh as per medical evidence, suffered pellet injuries that can only be fired from a .12 bore double barrel gun.
NARESH KUMAR
Dilraj Singh was declared innocent by the police, during 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -25- investigation and was only summoned under Section 319 Cr.P.C.. The appellants have been falsely implicated and as there is no evidence that the appellants made an attempt to take forcible possession of the Gurdwara or had a common object to commit murder and inflict injuries, the judgment and order recorded by courts below by misreading prosecution evidence, may be set aside and the appellants may be acquitted.
Counsel for the State of Punjab submits that the appellants armed with weapons, like pistols, rifles, kirpans, dangs etc. constituted an unlawful assembly, and as per the deposition of three eye witnesses, stormed the Gurdwara, fired gun shots, which led to two deaths and one seriously injured witness. The gun shot injuries are corroborated by medical evidence and recovery of guns, cartridges etc. The prosecution has proved its case in its entirety. The discrepancies in the deposition of eye witnesses as to guns, pistols, rifles and .12 bore double barrel guns, are but natural as prosecution witnesses are not experts in weapons and cannot be expected to distinguish between a rifle and a .12 bore gun etc., particularly in the middle of the night when they were under attack by Baba Lal Singh and his supporters. The shots that led to the death of Saroop Singh and Harpreet Singh and serious injuries to Sarabjit Singh, are proved by medical evidence. The mere fact that recoveries were not effected from two of the accused, who are alleged to have fired gun shots, is not sufficient to record an order of acquittal as prosecution witnesses particularly the injured eye witness has clearly deposed about their presence in the Gurdwara NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -26- and firing of shots. It is further submitted that prosecution has proved motive and the mere fact that Baba Lal Singh may have obtained an injunction is not sufficient to discard the depositions of prosecution witnesses. The impugned judgment and order may be affirmed and the appeals may, therefore, be dismissed.
Counsel for the petitioner in Criminal Revision No.77 of 2014, filed by Bikramjit Singh submits that Bikramjit has been ordered to remain in Special Home for two years. There is no evidence that Bikramjit Singh entered the Gurdwara, was armed with any weapon much less a gun or a rifle or a pistol and no overt act has been attributed to him. Bikramjit Singh has already undergone 340 days of incarceration during trial and is in custody since 09.12.2013. The revision may, therefore, be allowed.
We have heard counsel for the parties, perused the impugned judgment and order, appraised the entire evidence and considered arguments advanced for and against the impugned findings.
The prosecution alleges that an attempt to take forcible possession, of a Gurdwara, has led to the death of Saroop Singh and Harpreet Singh and near fatal injuries to Sarabjit Singh.
The evidence adduced by the prosecution broadly speaking falls into the following categories:- (a) evidence of motive, (b) medical evidence, namely, post mortem reports of the deceased and medical reports of the injured, (c) depositions by eye witnesses, including depositions of an injured eye NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -27- witness, (d) disclosure statements leading to recovery of weapons,(e) recoveries from the site of the incident; (f) reports received from the Forensic Science Laboratory and link evidence.
At the outset, we shall deal with the motive and the argument that the prosecution has not adduced any evidence to prove that Baba Lal Singh was ousted from the Gurdwara and as Baba Lal Singh had already been granted an injunction by a Civil Court, on 13.08.2007, there was no reason for him to make an attempt to take forcible possession of Gurdwara and or evict Paramjit Singh. The evidence on record, namely, deposition by PW1Sarabdial Singh, the complainant, PW2 Sarabjit Singh, the injured eye witness and PW3 Paramjit Singh, a person, who was handed over management of the Gurdwara, reveals that management of the village Gurdwara was entrusted to Baba Lal Singh, appellant No.1 in Criminal Appeal No.D-660-DB of 2012, but as residents of the village were not satisfied with his management, Baba Lal Singh was removed and the management of the Gurdwara was entrusted to Paramjit Singh. Baba Lal Singh was incensed by this insult and as deposed by PW3 Paramjit Singh, the person now incharge of the Gurdwara, visited the Gurdwara once or twice and threatened to beat Paramjit Singh with shoes. PW1 Sarabdial Singh, the complainant, has also deposed that Baba Lal Singh was NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -28- removed from the management of the Gurdwara and management was entrusted to Paramjit Singh. Baba Lal Singh was, therefore, annoyed and wanted to take control of the Gurdwara. PW2 Sarabjit Singh, the injured eye witness, has also deposed along similar lines. The fact that Baba Lal Singh was removed from the management of the Gurdwara is not only established from the depositions by PW1, PW2 and PW3, but from the fact that Baba Lal Singh filed a civil suit regarding his ouster from the Gurdwara and the injunction was granted by a Civil Court on 13.08.2007, thereby proving that there was a serious dispute between Baba Lal Singh and residents of the village regarding management of the affairs of the Gurdwara. An argument that as an injunction had already been granted to Baba Lal Singh, there was no reason for him to take forcible possession does not merit acceptance. The filing of the suit as already held proves that there was a serious dispute with respect to management and control of the Gurdwara, a fact also admitted by Baba Lal Singh in his statement recorded under Section 313 Cr. P.C. After obtaining the injunction, Baba Lal Singh and his supporters apparently emboldened, decided to forcibly enter the Gurdwara, so as to present the residents of the village with a fait accomplii and therefore, armed with guns, gandasas,and sotas etc., entered the Gurdwara in the dead of the night with the object to overpowering the management and NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -29- taking possession of the Gurdwara. Another argument that no documentary evidence has been produced to prove that Baba Lal Singh was removed from the management and control of the gurdwara must also be rejected, as filing of the civil suit proves that a dispute regarding management of the Gurdwara was subsisting but as motive, as always, is a double edged sword that may be reason for an offence as well as reason for false implication, we need not delve any further on the question of motive as the alleged incident that led to the death of two and near fatal injury to one is sought to be proved by deposition of three eye witnesses. However, before we deal with the depositions of eye witnesses, it would be necessary to reproduce the medical evidence in detail as the depositions of eye witnesses is also sought to be impeached by reference to medical evidence.
The medical evidence consists of depositions by PW4-Dr. Satinderpal Singh, who conducted post mortem, PW6- Dr. Harmohinder Singh Nagpal, who operated upon PW2 Sarabjit Singh, the injured eye witness, PW9-Dr. Manpreet Kaur, who medico legally examined PW2 Sarabjit Singh, injured eye witness and deposition by PW15 Dr. Poonam Ohri, Radiologist, Civil Hospital, Amritsar.
PW4 Dr. Satinderpal Singh, Medical Officer, Civil NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -30- Hospital, Ajnala, conducted post mortem of Saroop Singh and Harpreet Singh, proved copies of the post mortem reports, Ex.PB & Ex.PD and pictorial diagrams Ex.PC and Ex. PE, pertaining to the injuries on the person of Saroop Singh and Harpreet Singh, which are as follows:-
Saroop Singh "1. A wound measured 1cm x .5 cm on forehead just above the left eyebrow.
2. A wound measured 1 cm x 0.5 cms at the centre of forehead at the root of nose
3. 0.5 cm x 0.5cm wound was present just lateral to the right eye brow.
4. Two wounds measured 0.5 cm x 0.5 cm on the right side of the nose and right eye brow.
5. 1.5 cm x 1 cm wound at the base of neck left side over the clavicle."
Harpreet Singh " 1. Wound measured 3 cm x 3 cm was present on right side of skull and behind right pinna of ear.
2. Wound of exit measured 8 cms x 7 cms was present on the upper part of the occipital wound. Brain matter was coming out from the wound."
During his cross-examination, the doctor admitted that Harpreet Singh suffered a bullet injury which cannot be NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -31- caused from a .12 bore gun. With respect to Saroop Singh, the doctor admitted that the gun shot was fired from a distance as pellets were spread but stated that as he is not an expert in the field and, therefore, cannot state whether injuries on Harpreet Singh were suffered from a distance of 10-15 feet or whether the victim was standing on the roof or at a place higher than the assailants but admitted that in case the assailant was standing on the ground and the injured on the roof, injuries are likely to be oblique. The doctor also admitted that he did not find any 12 bore pellet from the body of Saroop Singh.
Dr. Harmohinder Singh Nagpal, Consultant Surgeon, Hartej Maternity and Nursing Home, Amritsar, treated and operated Sarabjit Singh son of Dial Singh and deposed as per his operation notes, which are as follows:-
"1. The patient was operated on Ist of September, 2007.
2. The patient was put under anesthesia and mid line incision made extending both above and below umbilicus.
3. The peritoneal cavity full of blood clots and intestine contents.
4. Two big perforation on terminal part of ileum about 6 inches proximal to Ileocaecal Junction and about 3 inches apart. One on the NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -32- mesenteric and other on anti mesenteric, about 2 cms in diameter.
5. Rest of the abdominal viscera were normal."
The part of ileum bearing perforation was resected as the viability around the margins was doubtful. Continuity restored by end to end anastamosis with 3/0 vicryl and silk.
Pertoneal cavity mopped up and rinsed with about 10 litres of warm saline. Complete haemostasis ensured and wound closed in layers with two abdominal drains in peritoneal cavity.
Wound on the right buttock about 2 cms in diameter was explored and a foreign body (bullet) was recovered. The tip of bullet was medial. Wound in the left inguinal region explored, debrided and stitched."
PW6 Dr. Harmohinder Singh Nagpal deposed that a bullet was recovered and tip of the bullet was medial. In his cross-examination, he admitted that he could not say if pellets were visible, but as per imaging report pellets were found in the pelvis. In cross-examination on behalf of Dilraj Singh, Avtar Singh and Inderjit Singh, the doctor deposed that he did not remove the pellets seen during surgery and except for pellets NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -33- seen during imaging, he did not see any pellets.
PW9 Dr. Manpreet Kaul, Lecturer, Department of Forensic Medicine, Government Medical College, Amritsar, deposed that she found the following injuries on the person of Sarabjit Singh, injured eye witness:-
"1. 3.5x1.5 cms lacerated wound, irregular in shpare present on back of right gluteal region, vertivally palced 14 cms below and posterior to right anterior superior iliac spine, pus was present in wound.
2. 1.5 cms long stitched wound with two stitches intact, was present on right iliac region 15 cms above and medial to right anterior superior iliac spine and was obliquely placed and drain was present in situ.
3. 24 cms long stitched wound with sixteen stitches intact, was present on medial line vertically placed, gaping of the wound was present at lower 1/3rd area and lower end of wound was 1.5 cms above pubic symphsis.
4. 2 cms long obliquely placed stitched wound with one stitch intact was present on left side of abdomen, 9 cms above and medial to left anterior superior iliac spine.NARESH KUMAR
2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -34-
5. 1 cm long stitched wound with one stitch intact was present on left inguinal region, 9 cms above and medial to left anterior superior iliac spine and was obliquely placed. Slight blackening was present."
The witness also deposed that injuries no.1 to 5 were collectively declared dangerous to life and that injuries had been inflicted with a fire arm. Injury no.1 is an exit wound and injury no.5 is entry wound, and admitted that no bullet was recovered.
A perusal of the medical evidence reveals that the death of Saroop Singh and Harpreet Singh and the near fatal injury to Sarabjit Singh were caused by fire arms. Saroop Singh, deceased, suffered injuries from a shot fired by using a .12 bore cartridge, whereas Harpreet Singh succumbed to an injury from a bullet. Sarabjit Singh suffered a firearm injury and as deposed by the doctor, injury no.5 was said to be an entry wound, whereas injury no.1 was an exit wound. PW6 Dr.Harmohinder Singh Nagpal, Consultant Surgeon, who operated upon Sarabjit Singh opined that he removed the bullet and as per imaging report, pellets were seen in the pelvis but were not removed. Having narrated the medical evidence, it would be appropriate to examine the deposition by eye witnesses so as to ascertain whether their depositions are corroborated by medical evidence.
PW1 Sarabdial Singh, the complainant, PW2 Sarabjit NARESH KUMAR Singh, and PW3 Paramjit Singh have been produced by the 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -35- prosecution as eye witnesses of the occurrence. PW1 Sarabdial Singh, is not only an eye witness but is also the first informant and lodged the complaint with the police at 3.45 A.M., which led to the registration of the FIR.
PW1 Sarabdial Singh, the complainant, after deposing about the background of the case, has deposed in the following terms:-
"On the night of 31.08.2007, while I was sleeping at my house, at about 10.30 in the night, I heard gun shots and got up once and ran towards the langar hall and through the staircase close to my residence I reached to the roof of langar hall. Sarabjit Singh (injured), Saroop Singh (deceased) and Surinder Singh were alredy present at roof of langar hall. On the roop top of Gurdwara Paramjit Singh and Harpreet Singh were already present. In front of the door of the Gurdwara Lal Singh was present with rifle in his hands. Avtar Singh Malli was present with the rifle, Dilraj Singh was also present with rifle. Harsharan Singh was armed with Kirpan, Karan Singh was armed with Kirpan, Satnam Singh was also present while armed with a stick, Satnam Singh son of Mohabbat Singh was also armed with dang. Bhagat Singh son of Bhola Singh, Gurdip Singh son of Som Nath, Satnam Singh son of NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -36- Sohan Singh, Dharminder Singh, Nirmal Singh, Sahib Singh, Bikramjit Singh, Balwinder Singh alias Palwinder Singh, Jagjit Singh, Ranjit Singh, Kirandip Singh, Inderjit Singh alias Ladda was armed with rifle, and Gurpreet Singh were present. All these accused were armed with different weapons and were hurling abuses and started throwing brick bats towards Paramjit Singh, standing on the roof top. Paramjit Singh also started hurling abuses at the accused when he was attacked with brick bats. Paramjit Singh etc. also threw 4-5 bricks bats from the roof top towards the accused persons. Lal Singh fired a shot from his rifle which hit Saroop Singh. Lal Singh again fired another shot which hit Sarabjit Singh. Avtar Singh Malli fired a fun shot from his rifle which hit Sarabjit Singh on his back. Dilraj Singh also fired from his rifle which hit Saroop Singh on his face. Sarabjit Singh and Saroop Singh fell down due to receiving injuries from gun shots. Inderjit Singh whose house is at the backside of Gurdwara reached the roof top of his cow shed, who fired a gun shot from his rifle which hit Harpreet Singh on his back. Lal Singh also fired a gun shot from his rifle which hit Harpreet Singh."
A perusal of the examination of Sarabdial Singh, reveals NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -37- that he has deposed that Lal Singh, Avtar Singh Malli and Dilraj Singh, were armed with "rifles". Harsharan Singh and Karaj Singh were armed with "Kirpans", Inderjit Singh was also armed with a "rifle", whereas others were armed with sticks. The accused began hurling abuses and throwing brick bats towards Paramjit Singh, who was standing on the roof. Paramjit Singh also hurled abuses and threw brick bats from the roof. Baba Lal Singh fired a shot from his "rifle", which hit Saroop Singh (deceased) followed by another shot, which hit Sarabjit Singh (injured). Baba Lal Singh is, therefore, alleged to have fired two shots. Avtar Singh Malli fired a gun shot from his "rifle", which hit Sarabjit Singh (injured) on his back. Dilraj Singh fired from his "rifle", which hit Saroop Singh (deceased) in his face. Inderjit Singh climbed the roof of his cow shed and fired a gun shot from his "rifle", which hit Harpreet Singh (deceased). Baba Lal Singh is also alleged to have fired a gun shot from his "rifle", which hit Harpreet Singh (deceased). Sarabdial Singh, during his cross- examination, stated that he cannot distinguish between a .12 bore "gun" from a "rifle" and does not know whether a bullet is fired from a "rifle" and a cartridge containing pellets from a "gun". Sarabdial Singh also admitted that he could not distinguish the nature of weapons carried by Avtar Singh, Inderjit Singh, Dilraj Singh and Baba Lal Singh. Sarabdial Singh was shown the "pistol", allegedly recovered from Baba Lal Singh by the police, and stated that he has not seen the "pistol" with any of the accused and is aware of the difference between a "pistol" and a "gun". On further cross- NARESH KUMAR examination, Sarabdial Singh clarified that he had not referred to 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -38- a .12 bore gun but has used the word "bandook/gun" Sarabdial Singh was confronted with his statement recorded before the police where it is recorded that Avtar Singh was holding a .12 bore gun. The defence, thereafter, showed the weapons recovered by the police to Sarabdial Singh, who stated that these are the guns and the pistol he saw at the time of the occurrence but all these weapons were referred to by him as "guns". Sarabdial Singh admitted that they had thrown brick bats at the accused. He also admitted that there was a dispute regarding change of khasra girdwari between son of his father's brother and Avtar Singh and in those proceedings, they had surrendered possession.
PW2 is Sarabjit Singh, injured eye witness, who after deposing as to the removal of Baba Lal Singh from the management of the Gurdwara has deposed as follows:-
"I was present in the Langar Hall, when Baba Lal Singh armed with pistol and Avtar Singh Malli armed with rifle, along with Dilraj Singh, Gursharan Singh, Satnam Singh, Karaj Singh, Jagjit Singh, Dharminder Singh, Bhagat Singh, Satnam Singh, Nirmal Singh, Bikramjit Singh, Kirandeep Singh, Gurpreet Singh, were present and all these accused were armed with swords, dangs, gandasis, and sticks etc. Dilraj Singh was armed with rifle. Saroop Singh, Sarbdial Singh, Surinder Singh were also present on the rooftop of Langar Hall. Baba NARESH KUMAR Paramjit Singh, Harpreet Singh were standing on 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -39- the rooftop of Gurdwara. Baba Lal Singh fired from his pistol which hit in my stomach. Avtar Singh Malli fired from his rifle which hit my back as I was receding towards backside. Harsharan Singh snatched the rifle from Avtar Singh Malli and fired at Saroop Singh which hit on his forehead. Dilraj singh fired a shot at Saroop Singh which hit his face. Inderjit Singh Ladda who is resident on the backside of Gurdwara climbed on the roof top of cow shed and fired gun shots from his rifle which Harpreet Singh. Baba Lal Singh fired from his pistol at Harpreet Singh, which hit him on the right side of his head. All the accused fled away along with their weapons from the spot on their vehicles."
Sarabjit Singh was cross-examined in detail and stated that he received a fire arm injury from a shot fired by Baba Lal Singh and another shot fired by Avtar Singh. He was confronted with certain portions of his statement made before the police but denied having made any such statement and further stated that a shot fired by Baba Lal Singh hit on the right side of the head of Harpreet Singh as Baba Lal Singh had fired two shots.
A perusal of the statement reveals that Sarabjit Singh has deposed that Baba Lal Singh was armed with a "pistol", Avtar Singh Malli was armed with a "rifle", Dilraj Singh with a "rifle" and Inderjit Singh Ladda was also armed with a "rifle", whereas others were armed with "gandasis, dangs, sticks and swords" etc. It would be NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -40- appropriate to point out that though PW1 has stated that Baba Lal Singh was armed with a gun, but PW2 Sarabjit Singh has stated that Baba Lal Singh was armed with a "pistol". Sarabjit Singh has also deposed that Baba Lal Singh fired from his "pistol", which hit him (Sarabjit Singh) in his stomach. Avtar Singh Malli fired from his "rifle" which hit him (Sarabjit Singh) in the rear. Harsharan Singh snatched the rifle from Avtar Singh Malli and fired at Saroop Singh which hit Saroop Singh's or his forehead. Dilraj Singh fired a shot at Saroop Singh, which hit the latter's face. Inderjit Singh Ladda climbed on the roof top of his cow shed and fired gun shots which hit Harpreet Singh. Baba Lal Singh fired from his pistol at Harpreet Singh, which hit Harpreet Singh's on the right side of his head.
PW3 Paramjit Singh son of Sawinder Singh, has deposed as follows:-
"On 31.08.2007, at about 12.30 night, Baba Lal Singh, Avtar Singh alias Malli, Dilraj Singh alias Mintu, armed with guns, Karaj Singh, Bhagat Singh, Nirmal Singh, Ranjit Singh, Dharminder Singh, Gurdip Singh and three persons namely Satnam Singh, accused, Sahib Singh, Bikramjit Singh, Inderjit Singh were armed with Kirpans, gandasis also came with Lal Singh and other persons also known to me but I do not know their names. The gate of Gurdwara at that time was closed and lights of Gurdwara were on. They started throwing brick NARESH KUMAR bats towards the roof of Gurdwara Sahib and when 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -41- we heard the roulla and abusing, I along with Harpreet Singh went on the roog of Gurdwara Sahib. Thereafter, I raised roulla that Baba Lal Singh came in the Gurdwara along with other persons. Sarabdial Singh whose house is adjoining with the Langar Hall and he also came on the roof of Langar Hall, along with Saroop Singh and Surinder Singh. Sarabjit Singh was already sleeping under the roof of Langar Hall. Thereafter, Baba Lal Singh fired from the gun towards Langar Hall which hit on Sarabjit Singh and Saroop Singh. Thereafter, Avtar Singh also fired from his gun which hit on the backside of Sarabjit Singh. Thereafter, the gun was snatched by Harsharan Singh from Avtar Singh and fired which hit on Saroop Singh. Dilraj Singh alias Mintu also fired from the gun which hit on Saroop Singh. Thereafter, supporter of Baba Lal Singh namely Inderjit Singh came on the roof of his cattle shed and fired from the gun which hit to Harpreet Singh on the right side of his forehead. Thereafter, Baba Lal Singh fled away with the supporters."
A perusal of the deposition reveals that Baba Lal Singh, Avtar Singh Malli, Dilraj Singh, were armed with guns, whereas others were armed with "kirpans, gandasis". Inderjit Singh was also armed with a 'gun'. As far as the guns shots, he has deposed in NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -42- accordance with the statements made by PW1 and PW2, but has not used the word "rifle" or .12 bore "gun" and has repeatedly used the word "gun" while describing weapons used by the appellants.
A due consideration of the arguments advanced with respect to depositions of eye witnesses reveals that these depositions are criticised on the ground that description of the weapons do not tally with the injuries, as PW1 and PW3 have deposed that Baba Lal Singh was armed with a 'gun" whereas PW2 has deposed that Baba Lal Singh was armed with a pistol but the police have recovered a "pistol". It is also argued that the gun shot which is alleged to have been fired from the ground floor at the deceased and injured standing on the roof of the Gurdwara but the trajectory of the bullets do not suggest that the gun shots were fired by a person standing in the courtyard at a person(s), standing on the roof. It is also contended that blackening of the injury suggests a close range shot.
A perusal of the depositions by eye witnesses and the medical evidence does not enable us to accept the argument that the so called discrepancies in description of weapons, are sufficient to cast a doubt on the prosecution case. Apart from the fact that it is not possible for a lay man to distinguish between a 12 bore gun and a rifle, to expect prosecution witness to depose with mathematically certainity as to weapons used and the exact number of gun shots fired would require us to ignore the fact that the attack took place in the middle of the night when the complainant and the eye witnesses were asleep. The sewadars in the Gurdwara, who were supporting NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -43- Baba Lal Singh, opened the gate for Baba Lal Singh and his supporters to enter the Gurdwara. The sudden nature of the attack where everyone was shouting, abuses were being exchanged, brick bats were being thrown, gun shots were being fired, would render near impossible for an eye witness to depose with a degree of certainty as to the exact nature of the weapon used, the mode and manner of firing the gun shots and, therefore, these discrepancies, in our considered opinion are not fatal to the prosecution. A common man using colloquial language does not used the word "gun' or "rifle" but uses the word "bandook" and more often than not a layman may not be able to distinguish between a 12 bore "gun" and a "rifle" and, therefore, in our considered opinion, nothing much would hinge upon these so called discrepancies in the description of weapons by eye witnesses or the trajectory of the bullet, except to require us to appraise the evidence carefully so as to rule out any false implication.
The deposition by eye witnesses and the medical evidence, in our considered opinion, proves that the deceased suffered fire arm injuries and as per the first version, the appellants who were said to be armed with fire arms are alleged to have fired from their weapons, causing injuries to the deceased and the injured eye witnesses. The mere fact that a reference may have been made to a rifle and one stage and a pistol at another, in our considered opinion, is not sufficent to doubt the deposition by eye witness particularly the deposition by PW2 who has himself suffered injuries that were sufficient to cause death. It would also be appropriate to NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -44- point out that eye witnesses have pointed out that Baba Lal Singh, Avtar Singh, Dilraj Singh, Harsharan Singh and the other appellants, who entered the Gurdwara, were armed with fire arms, dangs, sotis and kirpans. The first version given to the police within three hours, i.e. 3.45 AM, essentially is the same as deposed to by PW1, PW2 and PW3, thereby clearly establishing the truth of their depositions. The tendency to rope in as many people as possible is a well documented fact, noticed in innumerable judgments but we are unable to discern any such fact as would enable us to infer false implications. The control of Gurdwaras, unfortunately is often the cause of such disputes with each party supported by a multitude of its supporters and, therefore, it is not uncommon for the party out of possessions to make an attempt to take forcible possession.
An argument has been raised that apart from the persons, who were allegedly armed with fire arms and inflicted gun shot injuries, there is no deposition as to the role of the other persons armed with 'Kirpans, dangs, and sotis etc. and therefore, even if it is true that gun shots were fired by some of the appellants, there is no evidence of an overt act that could translate into a common object viz-a-viz these accused. The aforesaid contention, in our considered opinion, is entirely misplaced. The appellants, were armed with 'dangs, sotis and gandasis" and entered the premises of the Gurdwara in the dead of night along with persons armed with fire arms to take possession "by any means" including forcible eviction of persons managing the affairs of the Gurdwara The common object NARESH KUMAR of an unlawful assembly is to be inferred from the number of 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -45- persons present, the arms in their possession, and the eventual result. The appellants entered the Gurdwara in the middle of the night armed with deadly weapons, i.e., fire arms, gandasis, dang and lathis etc. with the common object of taking possession of the Gurdwara, at any cost. The mere fact that an injury may not be attributed to the appellants, who were armed with 'gandasis, dandas, and lathis' in our considered opinion is not sufficient to draw an inference that they did not harbour an object common with the appellants who fired gun shots as there was reason for them to have entered the premises of the Gurdwara in the middle of the night, armed with weapons.
As regards the plea that Karaj Singh, Satnam Singh, Gurpreet Singh, Nirmal Singh, Bhagat Singh, Sahib Singh, Bikramjit Singh, Gurdip Singh etc., who are sewadars and were present inside the Gurdwara, cannot be attributed a common object, does not merit acceptance as they opened the door of the Gurdwara and let Baba Lal Singh and his armed supporters into the Gurdwara. Their role in opening the gate and allowing Baba Lal Singh and other persons accompanying him, who had reached the Gurdwara in two vehicles, to enter the Gurdwara cannot be said to be an innocent act, unaware of the fact that Baba Lal Singh and others intended to take possession of the Gurdwara by any means, which included using fire arms and causing fatal injuries.
The argument that if a .12 bore gun shot is fired from a distance, as alleged, blackening would not be visible, in our NARESH KUMARconsidered opinion, cannot be a ground to doubt the deposition 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -46- by prosecution witnesses, who have deposed in unison with respect to injuries on the forehead of Saroop Singh. In the heat of the moment, particularly when the occurrence takes palce in the dead of night, witnesses may mistake the distance from which a gun shot is fired.
An argument that two of the appellants, namely, Dilraj Singh and Inderjit Singh were declared innocent by the police, in our considered opinion, cannot enure to their benefit as it has been proved, by depositions of eye witnesses that they were active participants and have been allegedly fired gun shots at the deceased. The fact that weapons may not have been recovered from them, is no ground to exonerate them, as even the learned trial court has recorded that despite an enquiry conducted by a senior police officer, no efforts were made to trace the weapons or to get the rifle recovered from the father of Dilraj Singh, forensically examined.
As regards Inderjit Singh, three eye witnesses have clearly deposed that he fired a gun shot which hit Harpreet Singh, deceased, thereby proving that during the incident, Inderjit Singh climbed on to the roof of his cow shed, which adjoins the Gurdwara and fired the fatal gun shot.
In view of what has been recorded hereinabove, we have no hesitation in holding that appellants constituted an unlawful assembly and in furtherance of their common object NARESH KUMAR 2014.10.29 16:37 I attest to the accuracy and authenticity of this document Chandigarh Criminal Appeal No.D-168-DB of 2012 -47- committed the offences for which they have been convicted and sentenced. As a consequence, the appeals are dismissed. CRIMINAL REVISION:
For reasons stated hereinabove, we find no reason to hold that Bikramjit Singh did not participate in the occurrence and did not harbour a common object and, therefore, find no reason to grant any benefit to Bikramjit Singh on the mere ground that he was a juvenile or has undergone 343 days of incarceration during trial. The revision petition is, therefore, dismissed.
In case, sentences of any of the appellants were suspended, their bail/surety bonds stand cancelled and they shall be taken into custody forthwith, to undergo the remainder of their sentence.
(RAJIVE BHALLA)
JUDGE
17th October, 2014 (AMOL RATTAN SINGH)
nt JUDGE
NARESH KUMAR
2014.10.29 16:37
I attest to the accuracy and
authenticity of this document
Chandigarh