Punjab-Haryana High Court
Sukhwinder Singh @ Bittu vs State Of Punjab on 25 January, 2012
Author: Jora Singh
Bench: Rajive Bhalla, Jora Singh
Crl. Appeal No. 350-DB of 2008 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.350-DB of 2008
Date of decision:25.1.2012
Sukhwinder Singh @ Bittu
... Appellant
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA.
HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.S.K.Kapila, Advocate,
for the appellant.
Mr.A.S.Grewal, DAG, Punjab.
...
JORA SINGH, J.
Sukhwinder Singh @ Bittu, appellant, was convicted under Sections 302 and 307 IPC and Section 27 of the Arms Act and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for two years under Section 302 IPC; to undergo RI for ten years and to pay a fine of Rs.3,000/-, in default of payment of fine, to further undergo RI for one year under Section 307 IPC and to undergo RI for three years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for three months under Section 27 of the Arms Act, as per judgment of conviction and order of sentence dated 21.8.2006 passed Sessions Judge, Amritsar, in Sessions Case No.64 of 2004, arising out of FIR No. 161 dated 22.9.2004 under Sections 302/307 IPC and Section 27 of the Arms Act, 1959, Police Station Patti.
Prosecution story, in brief, is that on 22.9.2004, police party headed by Inspector Gurbachan Singh, SHO, PS Patti, along with other police officials while on patrol duty was going towards Civil Hospital when Crl. Appeal No. 350-DB of 2008 2 Mukhtiar Singh on telephone informed that Gurnam Kaur and her husband Joginder Singh have been inflicted gun shot by their grandson Sukhwinder Singh @ Bittu and Joginder Singh has died on the spot whereas Gurnam Kaur is admitted in Civil Hospital, Patti, by her son and grandsons. On receipt of information, Inspector Gurbachan Singh went to Civil Hospital, Patti and moved an application requesting the doctor to opine as to whether Gurnam Kaur is fit to make statement or not. The doctor opined that Gurnam Kaur is fit to make statement. The statement of Gurnam Kaur (Ex.PC) was recorded in the presence of Dr.Sukhwinder Singh Sandhu. Allegation of Gurnam Kaur was that she along with her husband Joginder Singh was residing in the farm house. Last night at about 11.00 PM, their grandson Sukhwinder Singh @ Bittu, who was residing separately in the adjoining house came and asked Joginder Singh to make payment for purchase of liquor. At that time, she was lying on the cot. Joginder Singh replied that since he (Sukhwinder Singh @ Bittu) has not made payment of Theka, from where he (Joginder Singh) will make payment to him. Sukhwinder Singh @ Bittu replied that in case he is not to make payment, then he will shoot him. After that, Sukhwinder Singh @ Bittu who was armed with .12 bore gun fired a shot hitting Joginder Singh in his chest. Sukhwinder Singh @ Bittu fired a shot towards Gurnam Kaur who was lying on the cot. The pellets hit her in the chest. Raula was raised. Sukhwinder Singh @ Bittu fled away from the spot by leaving the gun, on the spot. In the morning her son Surta Singh and grandsons Harjinder Singh and Balwinder Singh came and shifted her to Civil Hospital, Patti. Statement of Gurnam Kaur (Ex.PC) was recorded on 22.9.2004 in the Crl. Appeal No. 350-DB of 2008 3 presence of Dr.Sukhwinder Singh Sandhu. After making endorsement at 8.15 AM, statement was sent to the police station, on the basis of which, formal FIR was recorded.
Investigating Officer had gone to the spot where dead body of Joginder Singh was lying. Inquest report (Ex.PE) was prepared. Dead body was handed over to the police officials for postmortem examination along with application (Ex.PF). Rough site plan (Ex.PG) with its correct marginal notes was prepared. Double barrel gun with two empty cartridges was recovered from the spot. Sketch of the gun (Ex.PH) was prepared and the same was made into a sealed parcel. Empties were also made into a separate sealed parcel, sealed with seal bearing impression `GS'. Parcels were taken into police possession vide memo (Ex.PJ) attested by the witnesses.
Investigating Officer had gone to Civil Hospital, where clothes worn by Gurnam Kaur, complainant, were produced before him and the same were made into a sealed parcel sealed with seal bearing impression `GS'. Sealed parcel was taken into police possession vide memo (Ex.PE) attested by the witnesses. HC Sucha Singh produced clothes worn by the deceased and the same were made into a sealed parcel sealed with seal bearing impression `GS'. Sealed parcel was taken into police possession vide memo (Ex.PM) attested by the witnesses. Licence of the gun was also taken into police possession vide memo (Ex.PN). On return to the police station, case property was deposited with the Incharge of Malkhana.
On 27.9.2004, investigation of the case was with PW13 ASI Manjit Singh. In view of production warrant issued by the Court, accused was arrested in this case. After completion of investigation, challan was Crl. Appeal No. 350-DB of 2008 4 presented in the Court.
As per order dated 28.10.2004 by the SDJM, case was committed to the Court of Session for trial.
After hearing learned PP for the State, learned counsel for the accused and from the perusal of documents on the file, trial Court opined that prima facie a case is made out to frame charge against the accused under Sections 302/307 IPC and Section 25 of the Arms Act. Accordingly, charge was framed against the accused, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW1 HC sucha Singh tendered his affidavit (Ex.PA).
PW2 Rishi Ram prepared scaled site plan (Ex.PB).
PW3 Constable Bhupinder Singh had delivered special report to the Ilaqa Magistrate on 22.9.2004.
PW4 Gurnam Kaur is the injured eye witness. She has reiterated her stand before the police in view of her statement (Ex.PC).
PW5 Harjinder Singh, brother of the appellant, stated that on 21.9.2004, he along with his father Surat Singh was sleeping in the paddy field, which was at a distance of 4 killas from their farm house. At about 5.00-5.30 AM, they came to their house and found her grandfather Joginder Singh lying dead on his cot. His grandmother Gurnam Kaur was also lying on the cot and was requesting to supply water. Enquiry was made from Gurnam Kaur. Then Gurnam Kaur informed that Sukhwinder Singh @ Bittu came armed with gun and fired shots hitting them. After that, they had shifted Gurnam Kaur to the hospital. Matter was brought to the notice of Crl. Appeal No. 350-DB of 2008 5 Mukhtiar Singh, who had gone to lodge a report. Police came to the hospital, where statement of Gurnam Kaur was recorded.
PW6 Mukhtiar Singh stated that on 22.9.2004 at about 6.00 AM, Sukhwinder Singh @ Bittu came to his house and made extra judicial confession that he had fired shots hitting his grandfather and grandmother and with firearm injuries, his grandfather had died on the spot. Grandmother was injured. Sukhwinder Singh @ Bittu was requested to wait because he was to take a bath. When he came out after taking bath, then Sukhwinder Singh @ Bittu was not present. He was going towards the place of occurrence, where Harjinder Singh and his father met him. They were on gharooka. Gurnam Kaur was also in the vehicle and she informed him that Sukhwinder Singh @ Bittu fired shots hitting them. On telephone, he had informed SI Gurbachan Singh.
PW7 Constable Surjit Kumar tendered his affidavit (Ex.PD). PW8 Inspector Gurbachan Singh is the Investigating Officer. PW9 Dr.Sukhwinder Singh Sandhu stated that on 22.9.2004, Gurnam Kaur was admitted in the hospital with firearm injuries on her person. Police came and as per request of the police, Gurnam Kaur was declared fit to make statement. Statement of Gurnam Kaur was recorded in his presence. After statement, a note was given that Gurnam Kaur remained fit while making statement.
PW10 Dr.Palwinder Singh stated that on 22.9.2004, he had conducted postmortem examination on the dead body of Joginder Singh and noted the following injuries on his person:-
"1. A lacerated punctured wound 2.5 x 1.7 cm on the front Crl. Appeal No. 350-DB of 2008 6 of chest, 4 cm from midline on the left side. Just below the midline end of clavicle. Margins inverted. Charring of skin and ecchymosis were present.
2. A lacerated wound 6x4 cm on the back of chest. It was 5 cm from the tip of left scapula. Margins inverted. Clotted blood was present. On dissection, injuries Nos.1 and 2 communicate with each other. Skin muscles were lacerated. Underlying ribs fractured. Underlying lungs, upper part of heart and pericardium were lacerated."
Cause of death was due to shock and haemorrhage due to injuries No.1 and 2, which were sufficient to cause death in the ordinary course of nature. Injuries were ante mortem in nature and were firearm injuries. Probable time that elapsed between injuries and death was instantaneously and between death and postmortem was 12 to 24 hours.
On the same day at about 9 AM, Gurnam Kaur was medico legally examined and following injuries were found on her person:-
"1. A lacerated punctured wound 0.3 x 0.3 cm on the right side of neck, 5 cm below the angle of mendable.
2. A lacerated punctured wound 0.3 x 0.3 cm on the left side of front of neck.
3. Multiple lacerated punctured wounds on the front of chest upper part 15 x 10 cm.
4. Two punctured lacerated wounds on the left side of chest 0.3 x 0.3 cm each and 4 cm from each other. They were 8 cm from the lower end of sternum.Crl. Appeal No. 350-DB of 2008 7
5. Two lacerated punctured wounds 0.3 x 0.3 cm on the left forearm .3 cm below the elbow.
6. Two lacerated punctured wounds 0.3 x 0.3 cm on the left upper arm 3 cm above the elbow.
7. A lacerated punctured wound 0.3 x 0.3 cm, 10 cm below the right shoulder joint.
8. A reddish contusion on the right upper arm around the elbow 6 cm x 6 cm."
PW11 HC Sukhraj Singh tendered his affidavit (Ex.PR). PW12 Gora Singh, Clerk, office of DC, Amritsar, brought record and stated that as per entry in the register at Sr.No. 494 dated 14.3.1997, licence for .12 bore gun was issued in the name of Sukhwinder Singh son of Surat Singh, resident of Ward No.14, Patti, District Amritsar. On 13.3.1998, licence was renewed upto 13.3.2000 and after that from 5.3.2003 to 13.3.2006.
PW13 ASI Manjit Singh stated that in view of production warrant issued by the Court, accused was arrested in this case on 27.9.2004.
PW14 Harvinder Singh, Photographer, stated that as per request of the police, he had gone to the spot and had taken photographs. Photographs are from Ex.P1 to Ex.P3 and negatives are from Ex.P4 to Ex.P6.
Report of FSL (Ex.PU) was tendered into evidence.
After closure of prosecution evidence, statement of the accused under Section 313 Cr.P.C was recorded. He denied all the prosecution allegations and pleaded to be innocent.
Crl. Appeal No. 350-DB of 2008 8
Defence version of the accused was that case is false.
Opportunity was given to lead defence but no defence was led. After hearing learned PP for the State, defence counsel for the accused and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid.
We have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on the file.
Learned counsel for the appellant argued that according to the prosecution story, occurrence was at about 11.00 PM on the intervening night of 21.9.2004, whereas statement of Gurnam Kaur was recorded on the next day at 8.15 AM. There is a delay in lodging the FIR. Gurnam Kaur is the only eye witness but she was not carrying good health being old lady. She was wearing spectacles and her eye sight was weak. She was not in a position to identify the assailant. In case, she had received firearm injuries at about 11.00 PM, she should have informed her other family members. Harjinder Singh, her grandson, with his father Surat Singh, was sleeping in the fields at a distance of about 4 killas. Immediately after the occurrence, she should have reported the matter to Harjinder Singh or Surat Singh. The story regarding appearance of Harjinder Singh and Surat Singh in the morning on 22.9.2004 is not natural. After the occurrence, appellant made an extra judicial confession before PW6 Mukhtiar Singh but he was not a Panch or Sarpanch. He was not holding any respectable post and had no say in the police department. So, there was no reason to make extra judicial confession before PW6 Mukhtiar Singh and if the appellant had made an extra judicial confession before Mukhtiar Singh, then Mukhtiar Singh Crl. Appeal No. 350-DB of 2008 9 should have produced the appellant before the police. Mukhtiar Singh had met the complainant party while going to the hospital but did not report to the complainant party that at about 6.00 AM on 22.9.2004, appellant came to his house and made extra judicial confession before him. Mukhtiar Singh was introduced simply to strengthen the prosecution story. According to the evidence, two empty cartridges along with gun were lifted from the spot but there is no report of the laboratory that the empty cartridges lifted from the spot were fired from the gun lifted from the spot. In fact, some unknown persons had committed the crime. Due to enmity with Harjinder Singh, appellant was falsely implicated.
Learned State counsel argued that no doubt, occurrence was on 21.9.2004 at about 11.00 PM. Death of Joginder Singh was on the spot. Gurnam Kaur, complainant, also received firearm injuries but being weak during night time, she was not in a position to inform Harjinder Singh or Surat Singh because they were sleeping in the paddy fields. Gurnam Kaur received pellet injuries. Her condition was not serious. She raised an alarm once/twice but after that, was not in a position to raise an alarm and remained in the house. On the next day in the morning, Harjinder Singh and Surat Singh came and had shifted her to the hospital. On the way, Mukhtiar Singh met them. He informed the police on telephone and on receipt of telephonic message, police party went to the hospital, where statement of Gurnam Kaur (Ex.PC) was recorded on 22.4.2004 at 8.15 AM. Mukhtiar Singh was not a Panch or Sarpanch but he was not inimical towards the appellant. He was not related to the complainant party. At about 6.00 AM on 22.9.2004, appellant had gone to the house of Mukhtiar Singh and made Crl. Appeal No. 350-DB of 2008 10 extra judicial confession. Appellant was requested to wait because Mukhtiar Singh had to take a bath. After bath, when he came outside, by that time appellant had left the house of Mukhtiar Singh. Appellant had surrendered in the Court and was formally arrested on 27.9.2004 as per permission of the Court. Appellant had gone to the house of the deceased and demanded payment to purchase liquor. No doubt, Gurnam Kaur was not carrying good health and her eye sight was weak but there was no difficulty in identifying her real grandson. PW5 Harjinder Singh is the real brother of the appellant. He was not inimical towards the appellant. When Harjinder Singh and his father came to their house, then found Joginder Singh lying dead. Gurnam Kaur was lying on the cot in injured condition. On enquiry, Gurnam Kaur informed her son and grandson that the appellant came armed with gun and fired a shot hitting the deceased. A second shot was fired hitting her. When Gurnam Kaur was being shifted to the hospital, then Mukhtiar Singh had met them. At that time also, on enquiry by Mukhtiar Singh, Gurnam Kaur reported that crime was committed by the appellant. She is the real grandmother of the appellant. As per suggestion to PW5 Harjinder Singh, deceased had executed a Will in favour of his two grandsons, i.e., Harjinder Singh and Sukhwinder Singh @ Bittu, appellant. Suggestion was given to Harjinder Singh that the appellant was cultivating land of Joginder Singh, deceased on payment of lease money. But in support of this allegation, no document is on the file. In case, the appellant was cultivating land of the deceased on payment of lease money, then there was no reason for Harjinder Singh to depose against the appellant by saying that the appellant had fired a shot hitting the deceased. Harjinder Singh is not an eye witness. He has simply shifted Gurnam Kaur, complainant, to Crl. Appeal No. 350-DB of 2008 11 the hospital. Gurnam Kaur was not inimical towards the appellant. So, there was no reason for Gurnam Kaur to name her real grandson. Two empty cartridges and a gun were recovered from the spot. Gun was a licenced gun of the appellant and this fact is clear from the statement of PW12 Gora Singh, who brought summoned record from the office of Licencing Authority. Gun and the empty cartridges were sent to the laboratory but if due to the mistake of the IO, report of the laboratory is not on the file, then on this short ground, prosecution story is not to be ignored because there is no reason to disbelieve Gurnam Kaur, complainant. Evidence on the file was rightly scrutinized by the trial Court.
According to the prosecution story, appellant had fired a shot hitting the deceased. Death of Joginder Singh was on the spot. Second shot was fired hitting Gurnam Kaur. Firearm injuries were noticed on the person of Gurnam Kaur as per report of the doctor. Allegation of the appellant is that due to enmity, he was falsely implicated in this case.
First submission of learned defence counsel for the appellant is that there is a delay in lodging the FIR. Occurrence was at about 11.00 PM on 21.9.2004, whereas FIR was lodged on the next day at 8.15 AM. After going through the evidence on the file, we are not in a position to agree with the submission of learned counsel for the appellant. Joginder Singh, deceased along with his wife Gurnam Kaur, injured was staying separately from other family members but there was no boundary wall. On the day of occurrence, PW5 Harjinder Singh, real brother of the appellant, along with his father Surat Singh, was sleeping in the paddy fields. On 22.9.2004 at about 5.00-5.30 AM, they came to their house, then Joginder Singh was found lying dead. At that time, Gurnam Kaur was lying injured. On Crl. Appeal No. 350-DB of 2008 12 enquiry, Gurnam Kaur informed her son and grandson that the appellant came armed with gun and fired shots when they refused to make payment. Gurnam Kaur was shifted to the hospital by them. On the way, Mukhtiar Singh met them. On enquiry from Gurnam Kaur, she informed Mukhtiar Singh that Joginder Singh was murdered by the appellant. She has also received firearm injuries at the hands of the appellant. Then on telephone, Mukhtiar Singh informed the police. Police party headed by Inspector Gurbachan Singh went to Civil Hospital, Patti. An application was moved requesting the doctor to opine whether Gurnam Kaur was fit to make a statement or not. Gurnam Kaur was declared fit to make a statement. Statement of Gurnam Kaur (Ex.PC) was recorded in the presence of PW9 Dr.Sukhwinder Singh Sandhu. After making endorsement at 8.15 AM, statement was sent to the police station, on the basis of which, formal FIR was recorded. Immediately after recording formal FIR (Ex.PC/2), special report was sent to the Ilaqa Magistrate. Special report was received by the Ilaqa Magistrate at 11.20 AM on 22.9.2004. The deceased and Gurnam Kaur were residing separately from other family members. On the intervening night of 21/22.9.2004, Harjinder Singh and his father Surat Singh were sleeping in the paddy fields. Gurnam Kaur was 80 years' old at the time of occurrence and though the first shot was fired by the appellant hitting Joginder Singh, deceased, the second shot was fired hitting Gurnam Kaur who received pellet injuries. When she appeared in Court, then Gurnam Kaur stated that she tried to raise an alarm once/twice. After that, she failed to raise an alarm and kept lying on the cot and being old and weak could not inform other family members, who were residing separately. Gurnam Kaur received firearm injuries and was shifted to the hospital. Crl. Appeal No. 350-DB of 2008 13 When Gurnam Kaur was found with firearm, the first priority of Harjinder Singh and his father Surat Singh was to shift her to the nearest hospital for medical aid. They were not expected to report the matter to the police by leaving Gurnam Kaur at the spot. The delay in our considered opinion was fully explained and is not fatal. Delay itself is not sufficient for the acquittal of an accused. If prosecution fails to explain delay, then evidence on the file is to be scrutinized with great care and caution.
Next submission of learned defence counsel for the appellant is that occurrence was at 11.00 PM on 21.9.2004. There was no light. Eye sight of Gurnam Kaur was weak. Before the present occurrence, she was operated upon. Due to operation, Gurnam Kaur was not in a position to identify the assailants. Due to enmity with Harjinder Singh, appellant was named but submission of learned counsel for the appellant seems to be not correct as deceased had executed a Will in favour of Harjinder Singh and the appellant. Appellant was cultivating land of the deceased on payment of lease money. No suggestion was given to Harjinder Singh as to why he was inimical towards the appellant. Harjinder Singh is the real brother of appellant. When Will was in favour of Harjinder Singh and the appellant and there was no civil litigation qua the land owned by Joginder Singh, deceased, then there was no occasion for Harjinder Singh to name the appellant. Gurnam Kaur was not under the control of Harjinder Singh. Deceased and Gurnam Kaur were residing separately. House of Harjinder Singh was adjoining to the house of the deceased but there was no boundary wall. Before recording the statement of Gurnam Kaur, complainant party was not inimical towards the appellant. Before firing from double barrel gun, appellant had demanded payment from Joginder Singh to purchase Crl. Appeal No. 350-DB of 2008 14 liquor. Land of Joginder Singh was under cultivation of the appellant on payment of lease money. Payment was not made to the appellant by Joginder Singh by saying that already he (appellant) failed to pay lease money. Suggestion was given to PW5 Harjinder Singh that the appellant was named at his instance but PW5 Harjinder Singh is the real brother of the appellant. Deceased had executed a Will in favour of Harjinder Singh and the appellant. As per suggestion to Harjinder Singh, appellant was cultivating land of the deceased on payment of lease money. That means, story regarding payment of lease money is correct one. Lease money was not paid by the appellant, then the deceased was right to refuse to make payment to purchase liquor. Due to this reason, appellant fired shots. Occurrence was at about 11.00 PM but there was no difficulty for Gurnam Kaur to identify the appellant because appellant is her real grandson. Appellant had demanded payment but the complainant party refused to make payment.
As discussed above, lease money was due from the appellant but despite this fact, he demanded more payment to purchase liquor. Deceased refused to make payment because the appellant had failed to pay lease money. When the deceased refused to make payment, the appellant armed with .12 bore gun fired a shot hitting Joginder Singh. At that time, appellant was inside the room. Gurnam Kaur raised an alarm. Then while present outside the room, the appellant fired another shot hitting Gurnam Kaur. Gurnam Kaur received pellet injuries. If the appellant was not inimical towards the deceased and Gurnam Kaur, then there was no reason for Gurnam Kaur to name him at the instance of Harjinder Singh because the Will was in favour of the appellant and Harjinder Singh. They are real Crl. Appeal No. 350-DB of 2008 15 grandsons of Gurnam Kaur. At the instance of one grandson, Gurnam Kaur was not expected to name the second grandson by leaving the real culprit. If some unknown assailants had fired shots, then question is where was the appellant on the intervening night of 21/22.9.2004 at about 11.00 PM. On hearing gun shots, appellant should have gone to the house of the deceased because at that time, his brother Harjinder Singh and father Surat Singh were sleeping in the paddy fields. Deceased had no enmity with any body else. So, there was no reason for unknown assailants to visit the house of the deceased and fired shots hitting him (deceased) and Gurnam Kaur. The appellant is closely related to the complainant. It was very easy for the complainant to identify the assailant. Something could be said if before the present occurrence, appellant was not known to the complainant. On 22.9.2004 at about 5.00-5.30 AM when Harjinder Singh along with his father Surat Singh came, Gurnak Kaur informed that the appellant has fired a shot hitting Joginder Singh and the second shot fired by the appellant had hit her. Gurnam Kaur was found lying injured and was taken by Harjinder Singh and his father Surat Singh to Civil Hospital, Patti. On the way, PW6 Mukhtiar Singh met them. He enquired from Gurnam Kaur about the incident, then she replied that the appellant came armed with gun and fired shots hitting them. After that, Gurnam Kaur was brought to the hospital. Mukhtiar Singh informed the police about the incident on telephone. On receipt of information, police party had gone to the hospital, where Gurnam Kaur was lying admitted. Her statement (Ex.PC) was recorded at 8.15 AM. If some unknown assailants had fired shots, she would not have name the appellant as he is her real grandson. It is, therefore, apparent that there is no dispute regarding identity of the appellant.
Crl. Appeal No. 350-DB of 2008 16
On 22.9.2004 at about 6.00 AM, appellant made extra judicial confession before PW6 Mukhtiar Singh. Mukhtiar Singh was not a Panch or Sarpanch. He was not holding any respectable post but he was not related to the complainant party. He had no enmity with the appellant. As per evidence on the file, appellant had fled from the spot by leaving his gun behind. At about 6.00 AM, there was no FIR against the appellant and if the appellant was not at fault, then there was no reason for the appellant to make extra judicial confession before PW6 Mukhtiar Singh at about 6.00 AM. At that time, Mukhtiar Singh was to take a bath. Appellant was requested to wait but when Mukhtiar Singh came outside after taking bath, the appellant was found missing. Mukhtiar Singh was going towards the place of occurrence. On the way, he noticed Harjinder Singh and his father Surat Singh on an engine driven cart. Gurnam Kaur was also on the said vehicle with injuries on her person. On enquiry, Gurnam Kaur informed Mukhtiar Singh that shots were fired by her real grandson, i.e., the appellant. Mukhtiar Singh was not inimical towards the appellant. He had no relation with the complainant. So, it was for the appellant to see whether to make extra judicial confession before Mukhtiar Singh or not and if the appellant had not committed the crime, then there was no reason to approach Mukhtiar Singh to make extra judicial confession. The real grandfather of the appellant was found murdered in his house. The real grandmother received firearm injuries. If some unknown persons had fired shots, then appellant should have been in his house on the intervening night of 21/22.9.2004. He along with his real brother Harjinder Singh and father Surat Singh should have made an effort to shift Gurnam Kaur to the nearest hospital for medical aid. Instead of staying in the house, the appellant was Crl. Appeal No. 350-DB of 2008 17 missing from his house. As per permission of the Court, appellant was formally arrested on 27.9.2004 after obtaining production warrant. Absence of the appellant from his house and surrendering before the Court show that submission of learned defence counsel is not correct. The appellant when examined under Section 313 Cr.P.C., did not state a word as to why he was implicated in this case. Although suggestion was given to Harjinder Singh that the appellant was named at his instance but there was no reason for Harjinder Singh to compel Gurnam Kaur to name the appellant because Joginder Singh, deceased, had executed a Will in favour of Harjinder Singh and the appellant in equal share and land of Joginder Singh was under
cultivation of the appellant. Lease money was due from the appellant. So, the appellant had the motive to commit the crime. Mukhtiar Singh was not an eye witness but statement of Mukhtiar Singh corroborates the version of the prosecution that the appellant had gone to his house at about 6.00 AM and made an extra judicial confession. In case, the appellant had not gone to the house of Mukhtiar Singh and there was no extra judicial confession, there was reason for Mukhtiar Singh to inform the police regarding the present occurrence.
Learned defence counsel for the appellant further submitted that two empty cartridges and gun were recovered from the spot but there is no report of the laboratory whether the empties lifted from the spot were fired from the gun recovered or not. We agree that there is no report of FSL on the file but on this short ground, story is not to be ignored. Appellant was a licencee and this fact is clear from the statement of PW12 Gora Singh, employee of the Licencing Authority. Gun of the appellant was recovered from the spot. Appellant was residing separately in the adjoining house. Crl. Appeal No. 350-DB of 2008 18 The question is how gun of the appellant was recovered from the spot. If some body had stolen the gun, then appellant should have reported the matter to the police but till today, no report has been made to any authority. Clothes worn by the deceased and the injured were taken into police possession and were sent to the laboratory. Report of the laboratory (Ex.PU) is on the file. Clothes worn by the deceased and the complainant were found stained with human blood. In case due to negligence of the IO, report of the FSL qua gun and empty cartridges is not on the file, there is no reason to disbelieve Gurnam Kaur, who is an injured eye witness. Eight injuries were noticed on the person of Gurnam Kaur by PW10 Dr. Palwinder Singh. No suggestion was given to PW10 Dr. Palwinder Singh that injuries on the person of Gurnam Kaur were not firearm injuries. Only one question was put to the doctor that no firearm injury was found on the dead body. Gurnam Kaur was 80 years' old. There was no reason to self suffer or self inflict eight firearm injuries with a view to implicate the appellant by leaving the real culprit. In the absence of FSL report qua gun and empty cartridges, prosecution story is not to be ignored.
No other submission was put forward.
In view of all discussed above, we are of the opinion that there is no infirmity or illegality in the impugned judgment and the same is upheld.
Consequently, Crl.Appeal No.350-DB of 2008 is dismissed.
( JORA SINGH )
JUDGE
25.1.2012 ( RAJIVE BHALLA )
pk JUDGE