Punjab-Haryana High Court
Gulzar Singh And Others vs State Of Haryana on 14 December, 2011
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 89-DB of 2008 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Criminal Appeal No. 89-DB of 2008
Date of Decision: 14.12.2011.
Gulzar Singh and others .......Appellants
Vs.
State of Haryana ......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. R.S.Cheema, Senior Advocate with
Mr. A.S.Cheema, Advocate
for the appellants.
Mr. Sandeep Vermani, Addl. A.G., Haryana.
.....
SABINA, J.
Appellants Gulzar Singh, Balkar Singh and Jagdeep Singh have preferred this appeal challenging their conviction and sentence as ordered by the trial court vide judgment/order dated 14.1.2008/15.1.2008 under Section 302, 307, 452, 324 read with Section 34 of the Indian Penal Code ('IPC' for short) and 25 of the Arms Act, 1959 ('Act' for short).
Prosecution case was set in motion on the basis of the statement of complainant Prem Chand. The complainant stated in his statement recorded at 8.00 P.M. before Sub Inspector Ved Parkash on 04.6.2001 that on the said day at about 4.00 P.M., he was sitting in the courtyard alongwith Sukhpal alias Bittu, Ram Kishan, Krishan, Mam Chand, Labh Singh and Amar Chand. In the meantime, Balkar Singh, Jagdeep armed with Crl. Appeal No. 89-DB of 2008 - 2- swords and Gulzar Singh armed with a gun entered the courtyard. Balkar Singh raised a lalkara that a lesson be taught for setting their fodder on fire. Gulzar Singh fired shots from his gun which hit Ram Kishan, Mam Chand and Sukhpal. Balkar Singh gave sword blows on the left arm and left hand of Krishan. Jagdeep gave a sword blow on the left arm of Krishan. On hearing their alarm many persons from the village gathered at the spot. The assailants then ran away from the spot with their respective weapons. The four injured were removed to Civil Hospital, Amabala City for treatment in a trolley. Ram Kishan and Sukhpal were declared dead by the doctor, whereas Krishan and Mam Chand were admitted in the hospital for treatment.
On the basis of the staement of the complainant, formal First Information Report ('FIR' for short) No. 35 dated 04.6.2001 under Section 302, 307, 324, 34 IPC and 25/27 of the Act was registered at Police Station Naggal.
After completion of investigation and necessary formalities, challan was presented against the appellants.
During trial, an application was moved by the prosecution under Section 319 of the Code of Criminal Procedure ('Cr.P.C.' for short) seeking summoning of Kulwant Singh as an additional accused. The said application was allowed by the trial court vide order dated 26.3.2004. Thereafter, charge was framed against Kulwant Singh. Aggrieved by the same, Kulwant Singh challenged the summoning order as well as the order whereby charge was ordered to be framed against him by filing the Criminal Revisions No. 1640 and 1641 of 2004. Both the said petitions were allowed by this court vide order dated 27.9.2005 and the summoning order as well as the order whereby charge Crl. Appeal No. 89-DB of 2008 - 3- was ordered to be framed against Kulwant Singh, were set aside.
In order to prove its case, prosecution examined 21 witnesses.
After the close of prosecution evidence, appellants when examined under Section 313 Cr.P.C. pleaded that they were innocent and had been falsely implicated in this case. The weapons, alleged to have been recovered from them, had been falsly planted on them to involve them in the case.
Appellants examined two witnesses in their defence. Medical Evidence:-
PW-4 Dr. V.K.Sharma deposed that on 05.6.2001 at about 11.15 A.M., he had conducted post mortem examination on the dead body of Ram Kishan along with Dr. L.N.Garg and they had observed following injuries:-
(1) Multiple embedded wounds of varing size with inverted margins and blackened margins situated in an area of 23 cm x 14 cm on the upper and two middeal aspect and antero-laterally aspect of the left thigh and left inguinal region. The blood was coming out of the wounds on slight pressure. Similar marks of tear were present on the underwear, Chadar and shirt which were corresponds to underling injuries.
The marks of blackening were present at some places on the clothes. The clothes were soaked with bloods. Sealed and handed over to the police. In their opinion, the cause of death was haemorrhage and shock as a result of injuries to femoral vessels. These injuries could have been inflicted by a fire arm. All the injuries Crl. Appeal No. 89-DB of 2008 - 4- were ante mortem in nature and were sufficient to cause death in the normal course of life.
He further deposed that on the same day, they had also conducted post mortem examination on the dead body of Sukhpal alias Bittu and they observed following injuries:-
(1) A lacerated wond of 11 cm x 7 cm with inverted and blackened margins situated on upper aspect of right thigh just below right inguinal region. (2) A lacerated wound of 4 cm x 3 cm with inverted margins situated on right anal fold just lateral to anal-opening.
In their opinion, the cause of death was haemorrhage and shock as a result of injuries to femoral vessels. These injuries could have been inflicted by a fire arm. All the injuries were ante mortem in nature and were sufficient to cause death in the normal course of life.
PW-5 Dr. Awan Chaudhary deposed that on 04.6.2001 he had medico legally examined injured Krishan and had found following injuries on his person:-
(1) An incised wound of 13 cm x 0.5 cm muscle deep on the left forearm placed obliquely, bleeding was present. Orthopedic opinion and X-ray left forearm was advised.
(2) An incised wound of 7 cm x 0.5 cm x sking deep on left forearm placed horizontally on the left forearm, just below the injury No.1. X-ray left forearm was advised.
(3) An incised wound of 8 cm x 0.5 cm x muscle deep Crl. Appeal No. 89-DB of 2008 - 5- on the palmer surface of left hand. Bleeding was present. X-ray left hand was advised.
All the injuries were opined to be simple in nature after receipt of X-ray report. The injuries had been caused with a sharp weapon within the duration of six hours.
He further deposed that on the same day, he also medico legally examined injured Mam Chand and had found following injuries on his person:-
(1) A wound 5 cm x 5 cm on the lateral aspect of right thigh, 5 cm below and lateral to the anterior illac spine. Margins were lacerated, tatooing and blackening was present around the wound, bleeding was present. The wound was downwards medially and posteriorly on exploration.
In his opinion, the injury was a result of fire arm. Ocular Version:-
Complainant, while appearing in the witness box as PW-2, has deposed as per the contents of the FIR.
PW-1 Labh Singh, PW-8 injured Mam Chand and PW-16 injured Krishan have corroborated the staement of PW-2 in their examination in chief.
Investigation:-
PW-21 Inspector Ved Parkash deposed that on 04.6.2001, he came to know that a quarrel had taken place in village Segta and the injured were admitted in Civil Hospital, Ambala City. He reached the hospital and recorded the staetment of PW Prem Chand and on the basis of the same, formal FIR was registered by Assistant Sub Inspector Sat Pal. An Crl. Appeal No. 89-DB of 2008 - 6- application was moved by Assistant Sub Inspector Raghbir Singh seeking opinion of the doctor qua fitness of injured Mam Chand and Krishan. The doctor declared injured Mam Chand as unfit to make the statement, whereas injuried Krishan was declared fit to make the statement. He recorded the statement of injured Krishan and thereafter, conducted inquest proceedings qua both the deceased. The dead bodies were sent for post mortem examination. Thereafter, he visited the spot at night time.
However, on the next day, he inspected the spot and prepared the rough site plan. The place of occurrence was got photographed. Blood stained earth was lifted from the spot where the deceased and injured had suffered injuries. He also lifted two wads from the spot. He lifted two empty cartridges of 12 bore from the spot. Two empty cartridges, on which AF 12-99 was written, were lifted from the spot. The accused were arrested and produced before the Area Magistrate on 07.6.2001. On 08.6.2001, accused Gulzar Singh suffered a disclosure statement and got recovered 12 bore double barrel gun from the disclosed place and the same was taken in possession. On the same day, accused Balkar Singh also suffered a disclosure statement during interrogation and got recovered the sword from the disclosed place. During interrogation, accused Jagdeep suffered a disclosure statement and got recovered the sword from the disclosed place.
PW-19 Jyoti proved the sanction order Ex. PW-19/A passed by District Magistrate, Ambala qua sanction for prosecution of Gulzar Singh under Section 25 of the Act. Defence:-
DW-1 Rajinder Singh deposed that on 06.6.2001, he Crl. Appeal No. 89-DB of 2008 - 7- had sold two swords to Dalbir Singh for ` 220/-.
DW-2 Dalbir Singh deposed that he had purchased two swords from a shop near Manji Sahib Gurudwara at the instance of the appellants.
Submissions:-
Mr. R.S. Cheema, Senior counsel for the appellants, has submitted that the prosecution had miserably failed to prove its case. The statement of injuried Krishan, who had been delcared fit to make the statement, had not been immediately recorded which lead to incorrect recording of manner of occurrence on the basis of the statement made by the complainant who had not witnessed the occurrence. Hence, the genesis/origin of the prosecution case was doubtful. The appellants had no motive to commit the alleged crime. The prosecution story was based on a non-existing motive. In fact, as per the prosecution witnesses, the motive was disclosed to them at the time of occurrence. The prosecution story was that the complainant party was sitting on cots in the courtyard. However, no cots were noticed by the investigating officer when he visited the spot. The site plans Ex. P-11/A and Ex. P-21/E lead to the inference that the appellants had not come to the spot with any premeditation. As per the said site plans, Gulzar Singh had fired shots while standing in the street, whereas injuries had been received by Krishan in the street at some distance from the deceased. PW Krishan, while appearing in the witness box, deposed that the shots had been fired by Gulzar Singh after he had been inflicted injuries.
Learned state counsel, on the other hand, has submitted that the prosecution case rested on eye witness Crl. Appeal No. 89-DB of 2008 - 8- account. All the eye witnesses had fully proved the prosecution story. The weapons used by the appellants at the time of occurrence had been recovered from them during investigation. Discussion:-
The present case rests on eye witness account. The prosecution, in order to establish the manner of occurrence, has examined two eye witnesses i.e. PW-1 Labh Singh and PW-2 Prem Chand and two injured witnesses i.e. PW-8 Mam Chand and PW-16 Krishan. As per the said witnesses, Gulzar Singh was armed with a double barrel gun and had fired shots which had hit deceased Ram Kishan and Sukhpal and injured Mam Chand. So far as appellants Balkar Singh and Jagdeep are concerned, they were armed with swords at the time of occurrence and had inflicted injuries with their weapons on the person of injured PW Krishan. The ocular version in this regard is duly corroborated by medical opinion.
The gun which was recovered from appellant Gulzar Singh was an unlicenced one. As per the report of the Forensic Science Laboratory Ex. P-13/A, the fired cartridges, recovered from the place of occurrence, had not been fired from 12 bore DBBL gun recovered from the appellant. However, the pellets which were recovered from the dead bodies of Ram Kishan and Sukhpal and injured Mam Chand had been fired from 12 bore shot gun. The wads lifted from the spot were found to be of 12 bore cartridge. Thus, as per the ocular version, medical opinin and the report of the Forensic Science Laboratory, both the deceased as well as injured Mam Chand had suffered injuries on account of shots fired from 12 bore gun. The fact that the fired cartridges, recovered from the spot, had not been fired from the Crl. Appeal No. 89-DB of 2008 - 9- gun which was recovered from appellant Gulzar Singh during investigation cannot be said to be fatal to the prosecution case. The possibility that during investigation appellant Gulzar might have got recovered some other gun than the one used at the time of occurrence cannot be ruled out. Moreover, it is not a licenced gun belonging to appellant Gulzar Singh which was recovered during investigation. Hence, this discrepancy cannot be said to be fatal to the prosecution case.
The fact that no cots were noticed by the investigating officer at the spot itself cannot be said to be fatal to the prosecution case. The cots might have been removed by the family members of the complainant party after the occurrence. Moreover, the discrepancy in this regard in itself cannot be said to be fatal to the prosecution case. The eye witness account qua the participation of the appellants at the time of occurrence inspires confidence.
The next question that requires consideration is as to whether the appellants had come to the spot sharing common intention to commit the crime. In this regard, learned senior counsel for the appellants has drawn our attention towards the cross examination of injured PW-16 Krishan. Although, all the witnesses, in their examination-in-chief, have deposed as per the contents of the FIR but injured Krishan, in his cross examination, deposed that Gulzar Singh and Kulwant had fired shots after he had received injuries. This shows that appellants Balkar Singh and Jagdeep had inflicted injuries on the person of Krishan with their respective weapons and thereafter, gun shots had been fired by appellant Gulzar Singh.
We have carefully gone through the rough site plan Crl. Appeal No. 89-DB of 2008 - 10- Ex. PW-21/E prepared by the investigating officer and site plan Ex. P-11/A prepared by the draftsman. A perusal of the same reveals that Gulzar Singh had fired shots while standing in the streed which had hit deceased Sukhpal and Ram Kishan standing at different places. Mam Chand had fallen down after receiving the shot at point 'C' shown in the site plan. PW Krishan had received injuries at the hands of appellant Balkar Singh and Jagdeep at point 'D' in the street. This shows that the firing had been done by appellant Gulzar Singh while standing in the street. Similarly, PW Krishan had also suffered injuries in the street. The possibility that the appellants had come to the spot with a view to inflict injuries on the complainant party cannot be ruled out in the facts and circumstances of the present case. The injuries were inflicted on the person of injured Krishan at some distance from his other companions. From the statement of injured Krishan, it is evident that first of all he had been given injuries and thereafter, the shots had been fired by appellant Gulzar Singh. In these circumstances, appellants Balkar Singh and Jagdeep could not be said to be guilty to commission of offence under Section 302 or 307 IPC and could be said to be responsible for their own acts.
So far as appellant Gulzar Singh is concerned, he had fired two shots. Although he had fired shots on the legs of the deceased as well as injured Mam Chand but the moment he fired the second shot, his intention to commit the offence of murder is evident.
In the facts and circumstances of the present case, the appellants are acquitted of the offence under Section 452 IPC as the appellants had not entered the house of the complainant Crl. Appeal No. 89-DB of 2008 - 11- party. So far as appellant Gulzar Singh is concerned, his conviction and sentence as ordered by the trial court under Section 302, 307 IPC and Section 25 of the Act are maintained. His conviction and sentence, as ordered by the trial court under Section 324 IPC, are set aside.
No sanction for prosecution of appellants Balkar Singh and Jagdeep Singh was obtained under Section 25 of the Act whereas sanction for prosecution of only Gulzar Singh for offence under Section 25 of the Act was obtained vide order Ex. PW-19/A. So far as appellant Balkar Singh and Jagdeep Singh are concerned, their conviction and sentence under Section 302, 307 and 25 of the Act are set aside. The said appellants are held guilty of commission of offence under Section 324 IPC. Since by now, they have already undergone the maximum sentence provided under Section 324 IPC, their sentence is reduced to already undergone by them. The sentence qua fine, as ordered by the trial court, is maintained.
Accordingly, this appeal stands partly allowed in the above terms. Appellants Balkar Singh and Jagdeep Singh, who are in custody, be set at liberty forthwith, if they are not required in any other case subject to deposit of fine, if not already deposited.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
December 14, 2011
Gurpreet