Punjab-Haryana High Court
Sukhbir Singh And Another vs State Of Punjab on 21 September, 2010
Author: Rajan Gupta
Bench: Ranjan Gogoi, Rajan Gupta
Criminal Appeal No. 102-DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of decision : 21.09.2010
Criminal Appeal No. 102-DB of 2007
Sukhbir Singh and another
....Appellants
V/s
State of Punjab
....Respondent
Criminal Appeal No. 158-DB of 2007 Satnam Singh and others ....Appellants V/s State of Punjab ....Respondent CORAM : HON'BLE MR. JUSTICE RANJAN GOGOI HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. Veneet Sharma, Advocate for the appellants in in CRA No. 102-DB of 2007.
Mr. APS Randhawa & Mr. PBS Goraya, Advocates for the appellants in CRA No. 158-DB of 2007.
Ms. Manjari Nehru, Additional Advocate General Punjab. RAJAN GUPTA J.
This appeal emanates from judgment passed by Additional Sessions Judge, (Adhoc), Fast Track Court, Amritsar convicting the accused/appellants for offences under Sections 302, 148 & 149 IPC and sentencing them to imprisonment as under :-
Criminal Appeal No. 102-DB of 2007 2
"(a) All the convicts are sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs. 500/-
each and in default of payment of fine, they shall further undergo rigorous imprisonment for two months each under Section 148 IPC.
(b) For murder of Pargat Singh, convict Sukhbir Singh @ Pappuy is sentenced to imprisonment for life and to pay a fine of Rs. 1.00 lac (Rupees one lac) and in default of payment of fine, he shall further undergo rigorous imprisonment for five years under Section 302 IPC. Other convicts namely Satnam Singh, Jarmanjit Singh, Mandip Singh, Sukhpal Singh and Jaskaranjit Singh are sentenced to imprisonment for life and to pay fine of Rs. 10,000/- each and in default of payment of fine, they shall further undergo rigorous imprisonment for one yhear each under Section 302, 149 IPC.
(c) For murder of Kulwinder Singh, convict Sukhpal Siungh @ Raju is sentenced to imprisonment for life and to pay a fine of Rs. 1.00 lac (Rupees one lac) and in default of payme nt of fine, he shall further undergo rigorous imprisonment for five years under Section 302 IPC. Other convicts namely Satnam Singh, Sukhbir Singh @ Pappu, Jarmanjit Singh, Mandip Singh and Jaskaranjit Singh are sentenced to imprisonment for life and to pay fine of Rs. 10,000/- each and in default of payment of fine, they shall further undergo rigorous imprisonment for one yhear each under Section 302/149 IPC."
The occurrence relates to 22.11.2003. The complainant Amarjit Singh made a statement before the police stating that he had two sons namely Pargat Singh and Kulwinder Singh, both were engaged in agriculture. On 22.11.2003 at about 11.30 a.m. accused Sukhpal Singh @ Raju had passed in front of their house on his motorcycle and had told them to keep their dogs in leash. At that time the accused (Sukhpal Singh) was using abusive language. On hearing, the complainant along with his two sons went towards the road. However, accused (Sukhpal Singh) left Criminal Appeal No. 102-DB of 2007 3 towards his house. The complainant thereafter went to the village Sarpanch to complain about the conduct of Sukhpal Singh as he had abused them. The complainant also wanted to lodged an FIR for which he requested Ranjit Singh. The complainant thereafter started for his house. When he had walked about a distance of 2 killas towards his house, he saw a Maruti car of blue color and motor cycle of red color coming from the side of village Botal Kiri (village of accused). Both maruti car and motor-cycle stopped on a passage leading to house of Jaswant Singh. All the accused alighted from their respective vehicles. While accused Sukhbir Singh @ Pappu and Sukhpal Singh @ Raju were armed with 12 bore double barrel guns, Satnam Singh was armed with 'Kirpan', Jarmanjit Singh was armed with 'gandasi', Mandip Singh was armed with 'dang' and Jassa Singh was armed with 'Kulhari'. Satnam Singh (accused) shouted (lalkara) saying that Amarjit Singh be taught a lesson for beating Raju. On seeing all these people, complainant returned to the house of Jaswant Singh. Due to fear he raised a alarm. It was about 12.00 noon. At that time on hearing his cries, his son Pargat Singh and Kulwinder Singh also came there. Pargat Singh (deceased) asked the accused why they were stopping and encircling his father, Amarjit Singh. At this stage, accused Satnam Singh raised "lalkara" and said since they had found all the enemies together, they should not be allowed to escape. In the melee that followed Jarmanjit Singh, Mandip Singh and Jassa Singh started grappling with sons of complainant (Pargat Singh and Kulwinder Singh). Sukhpal Singh and Sukhbir Singh kept standing targeting the opposite side with guns. Thereafter, Satnam Singh exhorted them that there was no need to wait and they should fire. Sukhbir Singh fired from his 12 bore gun hitting Pargat Singh below the right shoulder. Sukhpal Singh fired from his 12 bore gun hitting Kulwinder Criminal Appeal No. 102-DB of 2007 4 Singh on left side of his chest. On the shots being fired, both the sons of the complainant fell on the ground and died. The complainant raised hue and cry. All the accused thereafter fled the scene of occurrence leaving behind the Maruti car and Hero Honda motorcycle.
On registration of the formal FIR an investigation ensued. The investigating agency came to the conclusion that all the accused/appellants were guilty of commission of crime and submitted a charge-sheet accordingly.
The accused/appellants, however, pleaded not guilty and claimed trial. The prosecution examined as many as 14 witnesses. After closure of evidence, statement of the accused under Section 313 Cr.P.C. was recorded. They simply denied the allegations of prosecution and pleaded that they were innocent. Five witnesses were examined in defence.
After considering the entire evidence, the trial court came to the conclusion that all the accused/appellants were guilty of offences under Sections 148, 302/149 IPC and sentenced them accordingly.
Aggrieved accused Sukhbir Singh and Sukhpal Singh have preferred Criminal Appeal No. 102-DB of 2007 and rest of the accused have preferred a separate appeal i.e. Criminal Appeal No. 158-DB of 2007.
Mr. Randhawa, learned counsel for the appellants in Criminal Appeal No. 158-DB of 2007 has argued that the prosecution story as set out is inherently improbable and unbelievable. According to him, PW-5 Mukhtiar Singh, Ex-Sarpanch of Village Kiri Shahi was releated to the complainant and thus extra-judicial confession made before him needs to be discarded. He has further emphasized that there are no corresponding injuries as attributed to accused Satnam Singh, Jarmanjit Singh, Mandeep Singh and Jaskaranjit Singh and thus the prosecution story qua these Criminal Appeal No. 102-DB of 2007 5 appellants needs to be rejected. Learned counsel appearing for accused Sukhbir Singh and Sukhpal Singh has sought to assail the judgment of the trial court by submitting that there was delay in sending the FIR to Illaqa Magistrate. While the occurrence is alleged to have taken place at 12.00 noon, FIR was registered at 1.30 p.m. and copy of the FIR was sent to Illaqa Mgistrate at 3.00 p.m. According to learned counsel, the prosecution has failed to explain the delay in lodging of FIR. This apart, learned counsel has emphasized that there is material contradiction between ocular testimony of complainant and eye-witness Amarjit Singh and the medical evidence of Dr. Dilbagh Singh, PW-4. He further contended that only one gun was recovered by the investigating agency on disclosure statement of Sukhbir Singh. Thus, Sukhpal Singh had been falsely implicated in the case.
We have heard learned counsel for the parties and gone through the record with their assistance.
After death of Pargat Singh and Kulwinder Singh, the post- mortem was conducted by Dr. Dilbagh Singh, PW-4 on 23.11.2003 at 10.15 a.m. The relevant part from the post-mortem reports Exhibits PC, PC/1 & PC/2 reads thus:-
"(1) A lacerated wound of the size of 3x3 cm was present on right side of chest, on front side 6.2 cm from mid line of chest and ½ cm below the medial part of right clavical having irregular, inverted, circular and blackened margin.
On dissection:-
Interconstal muscles were lacerated and right clavical at the junction of lateral two third and medial one third was fractured completely. The underlying right pleura and upper part of the right lung were lacerated. 1350 CC clotted blood and fluid was present into right thorax cavity. 5 mettalic bodies were found from right lung.Criminal Appeal No. 102-DB of 2007 6
(2) Multiple small lacerated wound, 70 in number, 20 in the neck, 32 in the left side and 18 in the right side of chest, having size of approximate 0.5 x 0.7, injury no. 1, spreading over an area of 9"x12" on both sides of the chest, including neck, having irregular inverted and blackened margins.
On dissection:-
The underlying subcutaneous tissue and muscles were lacerated. Two metallic bodies were found on the right side. (3) Three small lacerated wounds of the size of 0.25 x 0.5 cm, having irregular inverted and blackened margins present, below the chin.
On dissection:-
The underlying subcutaneous tissue and muscles were lacerated.
(4) Six small lacerated wounds of the size of approximate 0.25x0.7 cm to 1.25 x 0.5 cm having irregular, inverted and blackened margins present on right fore arm on front side.
On dissection:-
The underlying subcutaneous tissue and muscles were lacerated. Two metallic bodies were found from injury no. 4. (5) A lacerated wound of 0.25 x 0.5 cm was present into right axilla, having irregular, inverted and blackened margins. "
In the opinion of the doctor, the cause of death was hemorrhage and shock due to injury no. 1 which was sufficient to cause death in the ordinary course of nature. Death resulted within 15 to 30 minutes after the receipt of injuries. On police request, Ex. PM/1, post mortem on dead body of Kulwinder Singh was conducted by the same doctor (PW4) and he found following injuries on his person as per post mortem report Ex. PD, Ex. PD/1:-
"(1) A lacerated wound of the size of 7x5 was present on left side of chest on front side 10 cm from mid point of left clavical and 7.5 cm from mid line and occupying upper portion of the left mammary gland, having irregular, inverted, elliptical and Criminal Appeal No. 102-DB of 2007 7 blackened margins with black gun powder, scattered all around the wound.
On dissection:-
The underlying interconstal muscles were lacerated and shaft of left fifth and sixth ribs were fractured into fragment. Underlying left pleurae and left side of left lung were lacerated with collapse. Underlying pericardium and lower part of left chamber of heart were lacerated. 1350 CC clotted blood and fluid was present into left thorax cavity. Nine metallic bodies were found from injury no. 1, 3 from the heart and six from the left lung. (2) Multiple small lacerated wound, 15 in number 9 on left side and six on right side of chest having size of approximate 0.5x0.7 cm to 1.25x0.5 cm surrounding the periphery of injury no. 1, spreading over an area of 9"x9" on both sides of chest with irregular, inverted and blackened margins.
On dissection:-
The underlying subcutaneous tissue and muscles were lacerated. 14 mettalic, bodies were found from injury no. 2, eleven from right side and three from left side of chest.
(3) A lacerated wound of the size of 2.5x1.5cm having irregular, inverted and blackened margins, was present on antero lateral part of left upper arm into middle one third portion. On dissection:-
The underlying subcutaneous tissue and muscles were lacerated.
(4) Two lacerated wounds having size of 0.25x0.75 cm having irregular, inverted and blackened margins were present on lateral side of left upper arm into middle one third portion.
On dissection:-
The underlying subcutaneous tissue and muscles were lacerated.
As per opinion of the doctor, the cause of death was hemorrhage and shock due to injury no. 1 which was sufficient to cause death in the ordinary course of nature. The death was immediate after the receipt of injuries.Criminal Appeal No. 102-DB of 2007 8
After the occurrence, the investigating officer S.I. Babu Ram visited the place of occurrence and prepared inquest reports Exhibits PN and PM. He also prepared the site plan of occurrence Ex. PO. Certain blood stained earth and certain samples were also lifted from the place of occurrence. Two empty cartridges were also recovered. Maruti car bearing No. PB- 02-E-4815 and Hero Honda motorcycle bearing No. PB-02-AB-
7197 along with registration certificates were recovered from the place of occurrence and taken into possession by the Police. Clothes on the bodies of Pargat Singh and Kulwinder Singh were also taken into possession. The pellets from the dead bodies after the post mortem of the bodies were sealed separately. On a disclosure statement made by accused Sukhbir Singh his 12 bore gun bearing No. 47409A/9 along with his licence was taken into possession by Police vide Ex. PY/1. Empty cartridges and the gun recovered from possession of accused Sukhbir Singh were sent to Forensic Science Laboratory, Chandigarh who vide report Ex. PZ/2 gave the opinion that one empty cartridge was fired from right barrel of the aforesaid gun and other cartridge was fired from its left barrel. PW-1 Amarjit Singh is the complainant/eye-witness whose two sons were killed in the occurrence. He stepped into the witness box and deposed more or less in terms of story narrated by him initially as incorporated in the FIR. PW-2 Ranjit Singh is another eye-witness who also deposed in the same terms as Amarjit Singh, PW-1. PW-3 Head Constable Robin Masih produced his affidavit as Ex.
PB. The doctor who conducted the post mortem appeared in the witness box as PW-4. He proved his reports Exhibits PC, PC/1 & PC/2. He also conducted the post mortem on the dead body of Kulwinder Singh and proved his report Ex. PD and PD/1 in this regard. PW-5 Mukhtiar Singh stepped into the witness box to prove the extra judicial confession made Criminal Appeal No. 102-DB of 2007 9 before him by Satnam Singh, Sukhbir Singh, Jarmanjit Singh and Jaskaranjit Singh. Rest of the witnesses i.e. PW-6, PW-7, PW-8, PW-9, PW-10, PW-11 and PW-12 are formal witnesses to prove the various documents in respect of license of the gun, ownership of motorcycle, car, etc. The investigating officer S.I. Babu Ram deposed as PW-13 and narrated the sequence of events. PW-14 LC Bhagwant Singh proved his affidavit as Ex. PZ.
In defence, five witnesses were examined by the accused. DW- 1 Dr. Tejwant Singh who conducted the medical examination of Gurdeep Kaur w/o Mohan Singh produced the medico legal report (MLR), Ex. DB to prove the injuries suffered by her. This witness also produced the medico legal report (MLR) in respect of Kulwant Kaur w/o Gurcharan Singh to prove certain injuries on her person. Another witness Dr. Mukhtiar Singh was examined as DW-2 to prove injuries suffered by Sukhbir Kaur and Sukhpal Singh. This witness also proved certain injuries on the person of Sukhbir Singh. DW-3 Dr. Amarjit Singh, Radiologist who conducted X-ray examination of Sukhpal Singh proved certain injuries on the person of Sukhpal Singh. DW-4 Dr. Iqbal Singh gave opinion regarding movement of right shoulder of Sukhpal Singh. Another doctor DW-5 Dr. S.N. Sharma produced by the defence stepped into the witness box to depose regarding dispersion of pellets by 12 bore gun from a particular distance.
At the outset we proceed to discuss the evidence of eye- witnesses i.e. Amarjit Singh and Ranjit Singh who deposed as PW-1 and PW-2 respectively. Both these witnesses remained consistent in their testimony. It was deposed by Amarjit Singh that due to provocation by accused Sukhpal Singh on 22.11.2003 at 11.30 a.m., abuses were exchanged between them and Sukhpal Singh. He had thereafter gone to the place of Criminal Appeal No. 102-DB of 2007 10 Jaswant Singh where Sarpanch of village was present to apprise about the incident. Around that time a motorcycle and car had come from the opposite direction. All the accused had alighted from their respective vehicles. A lalkara was raised by Satnam Singh to teach Amarjit Singh a lesson. All the accused were armed with various sharpedged weapons. Sukhbir Singh and Sukhpal Singh carried 12 bore guns. In the meantime, sons of Amarjit Singh namely Pargat Singh and Kulwinder Singh reached the spot. They asked why their father was being encircled. Satnam Singh again raised a lalkara. Thereafter shots were fired by Sukhbir Singh and Satnam Singh from their 12 bore guns resulting in death of Pargat Singh and Kulwinder Singh. This witness was cross-examined at length by defence but nothing useful could be elicited. The other eye-witness Ranjit Singh, PW-2 also deposed in similar terms. His testimony also could not be dislodged in cross-examination. The medical evidence on record shows that both the deceased died of gun shot injuries. The main limb of argument of learned counsel is that only one gun was recovered by the investigating agency which was allegedly used in the crime. Since this gun was licensed in the name of Sukhbir Singh and both the injuries were caused by the same weapon, the prosecution story had become highly doubtful. In our considered view, merely because one gun was recovered during investigation does not make the prosecution story improbable. The ocular testimony of eye-witness coupled with statement of Dr. Dilbagh Singh, PW-4 as well as post mortem reports Exhibits PC, PC/1, PC/2, PD and PD/1 leaves no room for doubt that death of deceased Pargat Singh and Kulwinder Singh occurred in the incident which took place on 22.11.2003. The presence of the accused on the spot has been proved by the prosecution beyond reasonable doubt. Even the defence examined number of witnesses Criminal Appeal No. 102-DB of 2007 11 to show that they were injured in the occurrence. Dr. Mukhtiar Singh (DW-
2) proved medico legal report in respect of Sukhpal Singh to show that he was injured in the occurrence which took place on 22.11.2003. According to Dr. Tejwant Singh DW-1 mother of Sukhpal Singh namely Gurdeep Kaur was also injured in the occurrence. Merely because the prosecution was not able to recover the gun, complicity of Sukhpal Singh cannot be ignored. According to eye-witness both were armed with double barrel guns. Even if one gun was used in the crime, both the accused would be equally guilty of commission of offence. As regards other accused namely Satnam Singh, Jarmanjit Singh, Mandip Singh, Jaskaranjit Singh, it is noteworthy that no corresponding injuries were found on the person of deceased persons. All the injuries as have been shown in the post mortem reports as well as deposition of PW-4 Dilbagh Singh have been caused by pellets as a result of shots fired from double barrel gun. The active participation of these accused (Satnam Singh, Jarmanjit Singh, Mandip Singh, Jaskaranjit Singh) in the crime is thus not made out from record. Despite the fact that prosecution has been able to prove their presence on the scene of occurrence, the absence of corresponding injuries as attributed to them shows that they cannot be held guilty of offence under Section 149 IPC. There is ample evidence though to prove the fact that they were present on the spot armed with various sharp edged weapons. Ocular testimony of the eye-witnesses coupled with recovery of the car and motorcycle from scene of occurrence go to prove this fact. However, mere presence on the spot would not lead us to the conclusion that the accused appellants Satnam Singh, Jarmanjit Singh, Mandip Singh, Jaskaranjit Singh are guilty of offence under Sections 302, 149 IPC. We have thus no hesitation in acquitting these accused under Section 302, 149 IPC while maintaining Criminal Appeal No. 102-DB of 2007 12 their conviction under Section 148 IPC. As regards accused Sukhpal Singh and Sukhbir Singh, there is enough material on record to show that they shared a common intention to commit the crime. Both of them were armed with double barrel guns, one of which was recovered by the investigating agency. The deposition of eye-witnesses clearly goes to show that both these accused shared a common intention to commit the crime. They actively participated in the occurrence and came to the spot armed with double barrel guns with a clear intention to commit the crime. There also appears to be a prior meeting of minds. It is well settled that Section 149 and Section 34 IPC are though independent Sections but they overlap to some extent. In such a situation there can be no hesitation on part of the court to invoke Section 34 and convict the accused accordingly, even if no charge was framed under Section 34 IPC (see Chittarmal Vs. State of Rajasthan, AIR 2003 SC 796). We, thus, maintain the conviction and sentence of all the accused under Section 148 IPC as awarded by the trial court. Accused Sukhpal Singh and Sukhbir Singh are, however, convicted under Section 302 read with Section 34 IPC (instead of Section 149 IPC). The sentence awarded by the trial court in respect of these accused is, however, maintained. The sentence of fine as awarded by the Court below in respect of offence under Section 302 IPC be defrayed as compensation to legal heirs of the deceased under Section 357 Cr.P.C.
(RAJAN GUPTA)
JUDGE
September 21, 2010 (RANJAN GOGOI)
Ajay JUDGE