Punjab-Haryana High Court
Savinder Pal @ Surinder Pal @ Ballu vs State Of Punjab on 19 February, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl. Appeal No. 682-DB of 2001 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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Crl. Appeal No. 682-DB of 2001
Date of decision : February 19, 2010
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Savinder Pal @ Surinder Pal @ Ballu
............appellant
Versus
State of Punjab
...........respondent
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CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
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Present: Mr. Sant Pal Singh Sidhu, Advocate for the appellant.
Mrs. Gurveen H. Singh, Additional Advocate General,
Punjab.
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JORA SINGH, J.
Savinder Pal @ Surinder Pal @ Ballu son of Gian Chand resident of Wazidpur has filed this appeal to challenge the judgment dated 23.10.2001 passed by Sessions judge, Ferozepur in Sessions Case No.62 of 1998 arising out of FIR No. 321 dated 4.9.1998 registered under Sections 302/323/34 IPC and Sections 27/54/59 of the Arms Act at Police Station Sadar, Ferozepur. By the said judgment he was convicted under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of six months.
Crl. Appeal No. 682-DB of 2001 [2]
Second accused, Joga Singh son of Hira singh was acquitted of the charge levelled against him. Against acquittal of Joga Singh, no appeal was preferred by the State.
Prosecution story, in brief, is that on 4.9.1998 Inspector Hardev Singh along with police party was present near Raja Talkies, Ferozepur, where at about 4:15 a.m, Amarjit Singh, PW-3 had met the police party. Amarjit Singh reported to the police that he is the resident of village Wazidpur. He has two brothers, Kabul Singh is the eldest. Younger to him is Charanjit Singh and he is the youngest. They are owning a residential house situated on the western side of village Wazidpur. On the other side of the metalled road in front of their residential house they are owning a haveli to keep combine and other household articles. All the brothers used to sleep in their residential house. At about 12:30/1:00 a.m, during night time, they heard the noise of barking of dogs from the side of haveli. Then he and his brother Kabal Singh woke up and came out on metalled road after opening the outer gate of their residential house. It was moonlit night and the electric light was also on. Surinder Pal alias Ballu armed with a .12 bore double barrel gun and Joga Singh son of Hira Singh were sighted while coming from the side of gurudwara sahib. Kabal Singh was ahead of him. Kabal Singh enquired from them as to who they are. Then Surinder pal alias Ballu fired shot hitting Kabal Singh on his forehead, nose and eye. On receipt of fire injuries, he fell down. Raula was raised. Surinder Pal alias Ballu had fled away from the spot towards the village along with his gun and Joga Singh. His uncle's son Hardip Singh also came to the spot on hearing the Crl. Appeal No. 682-DB of 2001 [3] noise of gun shot. After arranging a vehicle, Kabal Singh was taken to Civil Hosptial, Ferozepur on the jeep of Sukhdev Raj. At Civil Hospital, Ferozepur, Kabal Singh was declared dead by the doctor. A pellet of the shot fired by Surinder Pal alias Ballu also hit Raj Kumar son of Ram Lal, resident of Village Wazidpur. About 1 ½ years ago, there was a dispute amongst the parties regarding the passage. Dispute was settled by the respectable of the village. Statement was read over and explained to Amarjit Singh, who had signed the same in token of its correctness. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded at 5:10 a.m. Special report was received by the Ilaqa Magistrate on 7:20 a.m on 4.9.1998.
Hardev Singh, Inspector along with the party had gone to Civil Hospital, Ferozepur, where dead body of Kabal Singh was lying. Inquest report Ex.P-5 was prepared. Dead body was handed over to the officials for post mortem examination. Statement of Raj Kumar, injured was also recorded in the hospital after obtaining opinion of the doctor as to whether he is fit to make a statement or not. Inspector, Hardev Singh had gone to the place of occurrence and after inspecting the spot, rough site plan Ex.P-10 with correct marginal notes was prepared. Blood stained earth and simple earth was lifted from the spot in two different parcels and parcels were sealed with his own seal bearing impression `HS'. Both the parcels were taken into police possession vide memo attested by the witnesses. An effort was made to apprehend the accused but they were not traceable. On return to the police station, case property Crl. Appeal No. 682-DB of 2001 [4] was deposited with the MHC. Blood stained clothes worn by the deceased and injured were produced before the Investigating Officer with the post mortem report. Blood stained clothes were taken into police possession vide separate recovery memos Ex.P-13.
On 11.9.1998, accused were arrested. At the time of arrest, Surinder Pal alias Ballu was carrying one .12 bore double barrel gun and five live cartridges. Gun and the live cartridges were taken into possession.
After the completion of investigation, challan was presented.
Accused, Savinder Pal alias Ballu was charged under Section 302 IPC, whereas accused Joga Singh was charged under Section 302 read with Section 34 IPC, to which the accused did not plead guilty and claimed trial.
In order to proves its case, prosecution examined following witnesses:
PW-1, Dr. Jasbir Singh Sandhu had medico legally examined Raj Kumar on 4.9.1998 at 6:10 a.m and found the following injuries on his person:
1. Lacerated wound 0.5 cm x 0.26 cm on upper part and front of left thigh. Fresh bleeding was present x-ray was advised. Corresponding bleeding spot was present on the pyjamas, kachha and shirt. Patient was conscious. B.P. was 120/80 mmhg.
At 8:40 a.m, doctor had conducted post mortem examination on the dead body of Kabal Singh and observed as Crl. Appeal No. 682-DB of 2001 [5] under:
1. Lacerated punctured wound 1.25 cm x 0.76 cm on right side of upper eye lid of left eye.
2. Gutter shaped wound 1.75 cm x 1.5 cm on bridge of nose.
On dissection of skull, injury no.1 led to a track consisting of lacerated wound and clotted blood leading up to middle of brain posteriorly. Eye ball was punctured. Frontal bone was fractured. Membranes of brain were injured. At the end of track a bullet was lying which was sealed and handed over to the police. Nasal bone corresponding to injury no.2 was fractured to multiple pieces. Heart was healthy and empty. Stomach was healthy and containing 300 CC of semi solid food particles. Rest of the organs were healthy.
Death in this case was due to shock and haemorrhage and injury to brain as a result of fire arms injury which were ante mortem in nature and sufficient to have caused death in an ordinary course of nature.
Probable time that elapsed between injuries and death was instantaneous and between death and post mortem was within six to 12 hours PW-2, Avtar Singh, Reader of G.A, Ferozepur stated that licence Ex.MO-6 was issued by the office of the District Magistrate, Ferozepur in the name of Savinder Pal son of Gian Chand.
PW-3, Amarjit Singh, complainant and PW-4, Hardip Singh are the eye witnesses. They have supported the prosecution Crl. Appeal No. 682-DB of 2001 [6] story by saying that in their presence, Kabal Singh was murdered by the appellant.
PW-5, ASI, Naranjan Singh stated that on 11.9.1998, he was a member of the police party headed by Inspector, Hardev Singh. Raid was conducted. Appellant was apprehended by the police while carrying a .12 bore double barrel gun with five live cartridges. Gun and the cartridges were separately sealed and the sealed parcels were taken into police possession vide separate memo attested by the witnesses.
PW-6, Hardev Singh, DSP was the Investigating Officer. PW-7, ASI, Amarjit Singh was serving as MHC. He had handed over sealed parcel to Constable Makhan Singh for depositing the same in the laboratory.
PW-8, Mohinder Singh, L.C tendered his affidavit Ex.P-
15. PW-9, Constable Makhan Singh tendered his affidavit Ex.P-16.
PW-10, Constable Mohinder tendered his affidavit Ex.P-
17. After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the appellant was that he is innocent. At the time of occurrence there was `thikri pehra' in the village as gang of thieves known as `kala Kachhewala' used to commit thefts Crl. Appeal No. 682-DB of 2001 [7] and other crimes in the villages. Villagers used to perform `thikri pehra' in the villages so that no untoward incident. It was an accidental fire on the hearing of barking of dogs at night when there was thick dark under the impression that some criminals are moving in the village.
Defence version of Joga Singh was that he is innocent and was falsely implicated in this case.
In defence DW-1, MHC, Kulwant Singh brought the FIR register of P.S Dharamkot for the year 1998 and stated that FIR No.167 dated 14.9.1998 was registered at the instance of Gurdev Singh under Section 393 IPC. Ex.D1 is the copy of the FIR.
DW-2, Gurdip Singh, Head Constable brought the record of Police Station Kotwali Faridkot for the year 1998 and stated that FIR No.80 dated 3.9.1998 registered under Sections 304/201 IPC at the instance of Malkia Singh, SI. Ex.D2 is the copy of the FIR.
DW-3, Constable Chand Singh brought the FIR register of PS Ghall Khurd for the year 1998 and stated that FIR No.88 dated 2.9.1998 was registered at the instance of Sajjan Singh. Ex.D3 is the copy of the FIR.
After hearing learned Public Prosecutor for the State, learned counsel for the appellant and from the perusal of evidence on file, the appellant was convicted and sentenced vide the impugned judgment, whereas the second accused, Joga Singh was acquitted of the charge levelled against him.
We have heard the learned counsel for the appellant and Crl. Appeal No. 682-DB of 2001 [8] learned State counsel and gone through the evidence on the file. Defence counsel for the appellant argued that occurrence was on the intervening night of 3-4/9/1998 in the area of village Wazidpur. Before the present occurrence, there was no dispute amongst the appellant and the deceased. At the time of occurrence, appellant had not identified the complainant and deceased. According to the story, deceased had enquired from the accused as to who they are. Then appellant fired a shot hitting the deceased and one Raj Kumar, but there was no motive to murder. 1½ years earlier, there was a dispute regarding common passage and the dispute was settled with the intervention of the panches/respectables of the village. But, no resolution by the panchayat or any writing regarding settlement of dispute. No panch/sarpanch appeared to state that there was a dispute and that dispute was settled by the Panchayat. House of the complainant-party is on the western side of the village, whereas house of the appellant is on the other side. In Court, Amarjit Singh stated that 1 ½ years earlier to the occurrence, there was a dispute. Panchayat was convened. He had attended the panchayat. Joginder Singh, Kabal Singh, Hardip Singh, his father and uncle had attended the panchayat from one side whereas Gian Chand, Surinder Pal alias Ballu, Angrej Chand attended the panchayat on behalf of the second party. In the absence of documentary proof, story qua earlier dispute and settlement is doubtful. Secondly, identity of the appellant is also doubtful. In fact, at that time there used to be disturbance in the villages. During night time, criminals known as `Kale kachhewale' used to commit crime in the villages. Crl. Appeal No. 682-DB of 2001 [9] Villagers on their own accord had formed different parties to perform `thikri Pehra'. With the barking of dogs, complainant-party came out of their house. Members of `thikri pehra' party suspected that they are thieves and there was no electric light, then shots were fired. Appellant had no intention to murder. Appellant cannot be convicted under Section 302 IPC but liable for punishment under Section 304 Part-I IPC.
Learned State counsel argued that appellant when examined under Section 313 Cr.P.C then did not state that he was a member of the `thikri pehra' party. Appellant was a licensee and fired a shot hitting the deceased. Injuries were noticed on the forehead, nose and eye. If intention of the appellant was to frighten the other party then shot could easily be fired in the air. Raj Kumar was also injured. Although he was not examined by the prosecution. After scrutinizing the evidence on the file with great care and caution, appellant was rightly convicted and sentenced.
Appellant and the complainant-party are from the same village namely, Wazidpur. House of the complainant-party was on the western side of the village, whereas house of the appellant was on the other side of the village. Land of the appellant was also not adjoining the land of the complainant-party. No evidence on the file that there was a common passage to approach the residential houses of the parties or their fields. According to the FIR, 1 ½ years earlier to the present occurrence, there was a dispute amongst the parties regarding the passage to approach their fields and that dispute was settled with the intervention of respectables but evidence Crl. Appeal No. 682-DB of 2001 [10] shows that common passage was not leading to the residential houses of the parties and land of the appellant was not adjoining the land of the complainant-party. There was no common passage to approach their agricultural fields. If panchayat was convened then panch/sarpanch could easily be produced with record to state that 1 ½ years earlier to the present occurrence, there was a dispute amongst the parties and that dispute was settled. Regarding settlement of the dispute, there is no writing on the file. Occurrence was on the intervening night of 3-4/9/1998 and at that time, appellant was 20 years old. Complainant, Amarjit Singh, in chief, stated that dispute was regarding common passage and to settle the dispute Joginder Singh, Kabul Singh, Hardip Siungh, his father and uncle had also attended the Panchayat on behalf of one party. Gian Chand, Surinder Pal i.e the appellant, Angrej Chand had attended the meeting on behalf of the second party but regarding panchayat, there is no proof on the file. When the appellant was hardly 18/19 years old and was unmarried then there was no question of attending the panchayat on behalf of one party. When land or residential house of the appellant was not adjoining the land/residential house of the complainant-party, then no question of common passage. When there was no common passage to approach the fields then allegation of dispute qua passage is not correct one. When evidence qua motive is doubtful then question is whether on this short ground, story is to be ignored. Specific allegation of the prosecution regarding motive but evidence qua motive is not cogent and convincing. If the prosecution failed to prove motive then evidence Crl. Appeal No. 682-DB of 2001 [11] on the file is to be scrutinized with great care and caution but on this short ground, story is not to be ignored because motive is always in the heart of the accused. Sometimes without motive, heinous crimes are committed.
Next submission of the learned counsel for the appellant is that identity of the appellant is doubtful. Secondly, appellant had no intention to murder. We have gone through the evidence on the file and are of the opinion that submission of the learned counsel for the appellant, seems to be reasonable one. Defence version of the appellant is that at the time of occurrence, there was a `thikri pehra' in the villages to avoid any untoward incident at the hands of criminals known as `Kale Kachhewale'. Shots were fired on the hearing of barking of dogs during night time with this impression that some criminals are moving in the village. Amarjit Singh when appeared as PW-3 then stated that there was no rumour of gang of thieves known as `Kale Kachhewale'. There was no thikri pehra by the villagers during night time. In cross-examination admitted that with the barking of the dogs, they had suspected that some persons have come to commit theft or robbery in their haveli. Shots were fired from a distance of 10/12 feet by the appellant. On hearing the voice of barking of dogs, Charanjit Singh, Raj Kumar also came out whereas Amarjit Singh stated that Satpal, Manohar Lal, Daljit Singh and Charanjit Singh also came to the spot. ASI, Naranjan Singh in cross-examination admitted that there was disturbance of gang of thieves of `Kale Kachhewala' in the villages near border and the people of those villages had formed groups of voluntary guards and Crl. Appeal No. 682-DB of 2001 [12] they were moving with the guns at night for safety. Hardev Singh, Investigating Officer, also in cross-examination admitted that as per the statement of Raj Kumar, injured there was a `thikri pehra' on that night. Deceased came out from his house on hearing the barking of dogs. Kabal Singh had enquired as to who they are. So from the evidence on the file one thing is clear that there was disturbance in the villages near the border. Gang of thieves known as `Kale Kachhewale' used to commit crime during night time. To avoid any untoward incident at the hands of gang of thieves known as `Kale Kachhewale', villagers used to perform `thikri pehra' to save the villagers. In the instant case also, during night time, appellant being arms licensee was a member of the `thikri pehra' party. `Thikri pehra' party was coming from the side of gurudwara towards metalled road. On hearing the barking of dogs, complainant-party came out of their residential house. Deceased had enquired from the persons coming from the gurudwara side as to who they are. Members of `thikri pehra' party suspected the other side to be thieves then appellant armed with a licensed gun fired a shot hitting the deceased. Before the present occurrence, appellant had no enmity with the deceased. Appellant had no intention to murder but he fired a shot hitting the deceased on his face, nose and ear. That means that the appellant had the knowledge that death is certain when the gun shot hits the victim on the face or vital parts. Suspecting the deceased to be a thief, shot was fired from a distance of 10-12 feet. No evidence on the file that the intervening night of 3-4/9/1998 was a moonlit night and near the place of occurrence, electric light was on. So without Crl. Appeal No. 682-DB of 2001 [13] any intention to murder shot was fired from the licensed gun under the impression that complainant-party was members of `Kale Kachhewale'. Appellant committed culpable homicide but not amounting to murder because intention was not to murder. Appellant is liable for punishment under Section 304 Part-I IPC and not under Section 302 IPC. At the time of commission of offence, appellant was about 18-19 years old and was unmarried. Now he is married and having one issue. Appellant is not the previous convict. He belongs to a poor family. Appellant remained in custody for about 6 years, 1 month and 3 days. So keeping in view the facts and circumstances of the case, we are of the opinion that ends of justice would be fully met, if lenient view is taken and the appellant is directed to undergo imprisonment already undergone under Section 304 Part-I IPC and to pay Rs.1,00,000/- as fine payable to the widow of the deceased. Fine be deposited within three months before the trial Court payable as compensation to the widow of the deceased . In default of payment of fine to undergo RI for one year.
For the aforementioned reasons, appeal is partly allowed with modification on the point of sentence.
( JORA SINGH )
JUDGE
February 19, 2010 ( SATISH KUMAR MITTAL )
ritu JUDGE