Punjab-Haryana High Court
Bhupinder Singh vs State Of Punjab on 20 April, 2011
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
Crl. Appeal No.523-DB of 2009 & 1
Crl. Revision No.330 of 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: April 20, 2011
Crl. Appeal No.523-DB of 2009
Bhupinder Singh ...Appellant
Versus
State of Punjab ...Respondent
Present: Mr. H.S.Gill, Sr. Advocate with
Mr. K.B.S.Mann, Advocate,
for the appellant.
Mr. Pavit Mattewal, Addl. AG, Punjab,
for the respondent-State.
Crl. Revision No.330 of 2010
Jagtar Singh ...Petitioner
Versus
State of Punjab and others ...Respondents
Present: Mr. J.S.Thind, Advocate,
for the petitioner.
Mr. Pavit Mattewal, Addl. AG, Punjab,
for respondent No.1.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
HEMANT GUPTA, J.
This order shall dispose of Criminal Appeal No.523-DB of 2009 filed by Bhupinder Singh son of Balbir Singh against the judgment of conviction dated 29.04.2009 and order of sentence dated Crl. Appeal No.523-DB of 2009 & 2 Crl. Revision No.330 of 2010 02.05.2009 passed by the learned Additional Sessions Judge, Amritsar, whereby it convicted the appellant for the offences punishable under Sections 302 and 201 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.2500/- under Section 302 IPC. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for a period of two months. The appellant was further directed to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1000/- for an offence under Section 201 IPC. In default of payment of fine, the appellant was further directed to undergo rigorous imprisonment for a period of one month; and Criminal Revision No.330 of 2010 filed by Jagtar Singh - complainant against the acquittal of six other co-accused of Bhupinder Singh.
The prosecution case was initiated on the statement of Jagtar Singh son of Amrik Singh, brother of the deceased Angrej Singh, made to SI/SHO Surjeet Singh, Police Station Ajnala at 8.50 pm on 17.08.2005. In his statement (Ex.PA), Jagtar Singh stated that they have litigation with Bhupinder Singh etc. under Section 307 IPC pending in the Court of Shri H.S.Randhawa, Additional Sessions Judge, Amritsar and in that case witnesses were got recorded by them. He stated that at about 5.30 pm, he and his brothers, Angrej Singh and Fateh Singh, were going on their tractor from their village Hassanpur towards their fields. When they reached in Behak (farm house) of their maternal uncles Nirmal Singh, Ninder Singh sons of Wassan Singh in front of Village Mallian, three vehicles i.e one Indica car, one Esteem and one Maruti Zen, being driven by the accused persons, came and stopped there. Bhupinder Singh @ Pinder Singh son of Balbir Singh Crl. Appeal No.523-DB of 2009 & 3 Crl. Revision No.330 of 2010 was armed with a telescopic .315 rife, whereas all other accused were armed with .12 double barrel gun except Sakattar Singh armed with dattar and Charan Singh armed with sword. He stated that after coming out of the vehicles, they started exchanging hot words aggrieved against the evidence given by them in Court. In the meantime, Joginder Singh exhorted that he be caught and taught a less for giving evidence against them. Thereafter, Narinder Singh, Balbir Singh, Joginder Singh, Sucha Singh and Sarwan Singh fired from their . 12 bore double barrel guns and due to fear they ran towards behak of Nirmal Singh and started firing on them in order to stop firing from their side. He stated that when his brother Angrej Singh was standing in a corner of behak, Bhupinder Singh fired from his telescopic rifle by fixing it on the roof of Maruti Zen car with an intention to kill, which hit him below his left eye and passed through the head from back side. As a result of such injury, he died at the spot. He, his brother Fateh Singh, his maternal aunt Sawinder Kaur wife of Ninder Singh have witnessed the occurrence with their own eyes. He stated that all the assailants fled away from the spot with their respective vehicles because of air firing from their side. On the basis of such statement, FIR Ex.PI/1 was recorded at 9.05 pm and the special report was delivered to the Sub Divisional Judicial Magistrate at 11.00 pm on the same day.
The post-mortem on the dead body of Angrej Zingh was conducted by Dr. Kirpal Singh, on 18.08.2005. The Doctor has found two injuries on the person of Angrej Singh. After completion of necessary formalities including taking of sample of blood stained earth and one empty cartridge of .315 bore from the place of occurrence, all Crl. Appeal No.523-DB of 2009 & 4 Crl. Revision No.330 of 2010 the accused except Bhupinder Singh were made to stand trial. It may be noticed here that initially, Bhupinder Singh could not be arrested and was declared as proclaimed offender. A supplementary report was submitted by the prosecution agency after Bhupinder Singh was arrested in the year 2007. On the basis of such report, charges against Bhupinder Singh were framed on 28.05.2007 and that his trial was clubbed with the initial proceedings.
To prove its case, the prosecution has examined PW-1 Jagtar Singh, author of FIR and brother of the deceased; PW-3 Fateh Singh, another brother of the deceased and PW-9 SI Surjit Singh, the Investigating Officer apart from other witnesses of formal nature. The prosecution has also tendered into evidence report of the Forensic Science Laboratory Ex.PZ to the effect that the soil allegedly taken from the place of occurrence is stained with human blood. As per, another report of the Forensic Science Laboratory, traces of lead metal were detected on the periphery of hole present on front side of left sleeve of the kurta type kameej contained in parcel 'A' and on the front side of right sleeve of the kurta type kameej contained in parcel 'B' and thus said to be caused by firearm.
All the incriminating circumstances appearing in the prosecution evidence were put to the accused in their statements recorded under Section 313 Cr.P.C., but they asserted that they have been falsely implicated. In their defence, the accused examined DW-1 Dr. Rakesh Kumar Gupta, who examined Bhajan Singh son of Charan Singh and Sakattar Singh son of Hira Singh on 18.08.2005 at 10.15 am and 11.10 am respectively. He also proved medico legal reports Exs.D- Crl. Appeal No.523-DB of 2009 & 5 Crl. Revision No.330 of 2010 1 and D-2 of Bhajan Singh and Sakattar Singh respectively. He deposed that as per x-ray report of left upper arm of Bhajan singh, no abnormality was detected and in x-ray of right thigh, a foreign body was seen in the middle of thigh resembling pellet in the soft tissue. In respect of Sakatter Singh, on the basis of x-ray report of right leg, he has deposed that it reveals two foreign bodies resembling pellet seen in the soft tissue in the upper half of the leg. In his cross-examination, he has not ruled out the possibility of any pellet like object having been inserted in the soft tissues of the injured. DW-5 is Dr. Surinder Singh Bedi, who conducted the x-ray examination of Sakattar Singh and Bhajan Singh and found no bone injury. However, he found two foreign bodies resembling pallets seen in the soft tissue in the upper half of the leg in the x-ray examination of Sakattar Singh and a foreign body seen in the middle of thigh resembling pallets in its soft tissue in the x-ray examination of Bhajan Singh. In his cross-examination, he stated that only surgeon can give his comments about the pellets inserted in the soft tissue by friendly hands. DW-6 is Dr. A.K.Dutta, who deposed in respect of the paralytic condition of patient Balbir Singh, when examined by him in September, 1996. DW-2 Bhajan Singh son of Charan Singh. He deposed in respect of the injury received by him from the shot fired from the side of Nirmal Singh's behak. DW-3 is Constable Raj Kumar, who has produced the record of enquiry conducted by DSP Jagdip Singh Hundal and proved the same as Ex.D-5. DW-4 is Harjinder Singh, who has been examined on behalf of accused Sucha Singh to the effect that he was not present at the time of occurrence.
Crl. Appeal No.523-DB of 2009 & 6Crl. Revision No.330 of 2010
After going through the evidence on record, the learned trial Court convicted and sentenced the appellant Bhupinder Singh, whereas acquitted the other accused by extending the benefit of doubt, as no fire arm or other weapons was proved to be used by them on the date of occurrence, as mentioned above.
The entire prosecution case is based upon the testimony of PW-1 Jagtar Singh, author of FIR and brother of the deceased, corroborated by PW-3 Fateh Singh, who has deposed in the similar manner. It has come in evidence that on the date of occurrence i.e. 17.08.2005, a case between the parties under Section 307 IPC was pending in the Court of Shri H.S.Randhawa, Additional Sessions Judge, Amritsar, in which evidence of the complainant party was recorded against Bhupinder Singh. It transpires, from the cross-examination, that the said proceedings were that of cross-case in which Lakha Singh and Bhalla Singh were injured from the side of Jagtar Singh and that he himself, Angrej Singh, Harinder Singh, Bagga Singh, Lakha Singh and Bhalla Singh were accused in the police case, whereas in the complaint case, Bhupinder Singh, Narinder Singh, Balla Singh, Sukhchain Singh and Kulwant Singh were arrayed as accused. In his cross-examination, Jagtar Singh stated that his brother Angrej Singh was standing near the corner of his (Nirmal Singh) farm house and Bhupinder Singh after placing his telescopic 315 bore rifle on the roof of Maruti Zen car fired towards Angrej Singh with intention to kill him. He stated that they also fired in the air in their defence and all the accused persons after boarding their cars while raising lalkaras left the place of occurrence with their respective weapons. He stated that the police also lifted an empty cartridge of 315 bore rifle from the place of occurrence. In his Crl. Appeal No.523-DB of 2009 & 7 Crl. Revision No.330 of 2010 further cross-examination, he has stated that the farm house of Nirmal Singh is situated about 2 acres from their village and that the behak is at a distance of 17-18 karams from the metalled road. He stated that they fired only after Angrej Singh sustained injuries at the hands of Bhupinder Singh and that it is correct that in the statement before the Police he stated that after the shot hit Angrej Singh, they again fired in the air with their weapons. He admitted that Angrej Singh was having a 315 bore rifle with him and Angrej Singh fired from their side before he fell down on the ground. He further stated that it was thereafter he picked up his (Angrej Singh) rifle and fired in the air and that they have not given their rifle to the police. He stated that the accused party stopped their cars in front, on side and behind their tractor and made them to stop. He stated that they were empty handed at that time, however, Angrej Singh had a fire arm with him. He stated that none of the accused tried to snatch the gun from the hands of Angrej Singh deceased. He was confronted with his statement made to the police the fact that the deceased was carrying a 315 bore rifle was not mentioned in the said statement. He denied the suggestion that Sakattar Singh and Bhajan Singh sustained fire shot injuries at the instance of complainant party.
Learned counsel for the appellant has vehemently argued that the FIR is delayed in as much as the incident has taken place at about 5.30 pm, but the first statement was made to SI/SHO Surjeet Singh, P.S.Ajnala at about 8.50 pm on the basis of which FIR has been registered. He further contended that the rifle of the deceased Angrej Singh has not been taken into possession by the police, which would be relevant to determine the extent of injuries suffered by the accused Crl. Appeal No.523-DB of 2009 & 8 Crl. Revision No.330 of 2010 party and/or to substantiate the prosecution case. Still further, the gun from which fatal injury is said to have been fired has not been recovered and that injuries on the person of accused Sakattar Singh and Bhajan Singh have not been explained by the prosecution. It is contended that no independent witness has been examined. The prosecution witnesses are real brothers, who are interested to support the prosecution case. It is argued that Bhajan Singh while appearing as DW-2 has admitted that he has fired a shot which struck someone in the behak of Nirmal Singh, but the said aspect has not been investigated by the prosecution. Thus investigations have not been conducted in free and fair manner so as to find out the truth.
Having heard learned counsel for the parties, we do not find any merit either in the appeal or revision filed by the complainant. The argument that there is delay in lodging of FIR is not meritorious. The occurrence has taken place at about 5.30 pm, whereas first statement was made at 8.50 pm. Since Angrej Singh, brother of the complainant, has lost his life in the firing incident, some time is bound to have taken place for providing immediate medical attention, which is the normal human conduct. Lodging of FIR at 8.50 pm and delivery of special report to the learned Magistrate at 11.00 pm, is not actuated by such delay, which may raise eye-brows and require explanation from the prosecution. The time taken is normal which does not suffer from any infirmity.
The prosecution witnesses namely PW-1 Jagtar Singh and PW-3 Fateh Singh have categorically deposed about the firing of .315 bore telescopic rifle after fixing it on the roof of Maruti Zen car by Crl. Appeal No.523-DB of 2009 & 9 Crl. Revision No.330 of 2010 Bhupinder Singh. The entry and exit wounds suffered by the deceased Angrej Singh support the prosecution story. Bhupinder Singh- appellant, who is attributed a fatal fire arm injury was a proclaimed offender. He came to be charged with the other co-accused two years later on 28.05.2007. Since, he was arrested after long period and during interrogation has stated that the gun has been destroyed, non- recovery of the weapon of offence in these circumstances cannot throw doubt on the prosecution case. From the earliest version, within three hours, soon after the occurrence and the statement on oath of the witnesses support the prosecution case of having Bhupinder Singh fired the fatal blow. Such eye-witness account is duly corroborated by the medical evidence, when the inlet wound is smaller than the exist wound. Therefore, the learned trial Court has not committed any illegality while returing a finding that it was Bhupinder Singh, who fired fatal blow from his 315 bore telescopic rifle.
The argument that the rifle which was possessed by Angrej Singh has not been recovered or the injuries suffered by Sakattar Singh and Bhajan Singh have not been explained, does not warrant any serious consideration. Jagtar Singh-complainant in his first version Ex.PA has admitted firing from their side, but it was firing in air. Jagtar Singh while appearing as PW-1 has admitted firing in self defence. In his cross-examination, he stated that Angrej Singh fired from their side before he fell down and thereafter he picked up the rifle of Angrej Singh and fired in air. They have not given rifle to the police. He denied the suggestion that he is changing the kind of weapon from .12 bore to .315 bore because the injuries sustained by Sakattar Singh and Bhajan singh were with .12 bore rifle. Similar is the Crl. Appeal No.523-DB of 2009 & 10 Crl. Revision No.330 of 2010 statement of PW-3 Fateh Singh that the firing from their side was done by Angrej Singh though such fact is not mentioned in his statement Ex.D-1 and that Angrej Singh has holding a .315 bore rifle. He further stated that Angrej Singh might have fired one or two shots from his gun.
The injuries suffered by Sakattar Singh as deposed by DW- 1 Dr. Rakesh Kumar Gupta are small lacerated wounds. X-ray of right leg reveals that two foreign bodies resembling pellet seen in the soft tissue in the upper half of the leg. It may be noticed that Sakattar Singh was medico-legally examined at 11.10 am on 18.08.2005 i.e. after more than 20 hours of the occurance. Similarly Bhajan Singh @ Harbhajan Singh has got two lacerated wounds on the left upper arm and one injury on the posterior aspect of right thigh. He was examined by Dr. Rakesh Kumar Gupta at 10.15 am on 18.08.2005 i.e. after more than 19 hours of the occurrence. Neither Dr. Rakesh Kumar Gupta nor DW-5 Dr. Surinder Singh Bedi are categorical and clear that the foreign body seen in x-ray reports are the pellets. Though Sakattar Singh and Bhajan Singh are said to have been received injuries in the occurrence alleged to have taken place on 17.08.2005, but no active steps have been initiated by them for making of the grievance of the said injuries. The extent and nature of the injuries and the time gap between the occurrence and the medico-legal examination, are sufficient to doubt the defence version particularly when it is the prosecution case itself that one or two shots were fired by Angrej Singh and PW-1 Jagtar Singh, after Angrej Singh fell down on the ground. Therefore, the receipt of simple injuries by the accused, is not sufficient to doubt the prosecution story. The injuries said to have been suffered by Bhajan Crl. Appeal No.523-DB of 2009 & 11 Crl. Revision No.330 of 2010 Singh and Sakattar Singh are with .12 bore shot, whereas Angrej Singh is said to have .315 bore rifle. The weapon with the deceased, which was fired by PW-1 Jagtar Singh and the injuries allegedly suffered by Bhajan Singh and Sakattar Singh did not match. There is nothing on record to doubt the testimonies of PW-1 Jagtar Singh and PW-3 Fateh Singh that firing from their side with .315 bore rifle only for the reason that it was not disclosed the kind of weapon possessed by the complainant party in the first version.
Harbhajan Singh while appearing as DW-2 has stated that he had a rifle in his hand on 17.08.2005 and fired towards the behak of Nirmal Singh. Neither PW-1 Jagtar Singh nor PW-3 Fateh Singh have deposed in respect of presence of Harbhajan Singh at the time of occurrence. His presence at the time of occurrence is not admitted. No other witness has been examined who has deposed that Harbhajan Singh was present at the time of occurrence and with .315 rifle.
We also do not find any illegality in the findings recorded by the learned trial Court acquitting the other accused. Though the said accused are said to be armed with various weapons, but no injury is attributed to any of them. The allegation is that the accused party fired in air and fled from the scene after a fire arm was shot in air by their side. The learned trial Court has rightly disbelieved the prosecution story to that extent, as the said accused are neither alleged to have followed nor chased the complainants meaning thereby that there was no overt act of the other accused other than Bhupinder Singh. None of the other accused except Bhupinder Singh is alleged to have fired upon the complainant party even when they were running. Even no overt act Crl. Appeal No.523-DB of 2009 & 12 Crl. Revision No.330 of 2010 is attributed to Sakattar Singh and Pargat Singh, who were armed with datar and kirpan respectively. The learned trial Court has rightly found that the ingredients of Section 148 IPC are not made out as neither there was common object nor the common intention nor any overt act of all other accused. Learned trial Court has rightly found that the occurrence is admitted and the plea of self-defence has remained un-established. Therefore, prosecution case holding Bhupinder Singh alone as a person responsible for the death of Angrej Singh stands proved beyond reasonable doubt.
In view of the above, the present appeal as well as criminal revision stand dismissed.
(HEMANT GUPTA)
JUDGE
20.04.2011 (A.N.JINDAL)
Vimal JUDGE