Punjab-Haryana High Court
Criminal Appeal No. 384-Db Of 2008(O&M) vs State Of Punjab on 6 September, 2013
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
Criminal Appeal No. 384-DB of 2008(O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision: September 6th , 2013
1. Criminal Appeal No. 384-DB of 2008(O&M)
Sarabjit Singh and others
---Appellants
versus
State of Punjab
---Respondent
2. Criminal Revision No. 2300 of 2008
Udham Singh
---Petitioner
versus
Iqbal Singh and others
---Respondents
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
Present: Mr. R.S.Cheema, Senior Advocate with
Mr.J.S.Mehndiratta, Advocate
for the appellants
Mr. Ashwani Talwar, Addl. Advocate General, Punjab
for respondent-State
Mr. DPS Kahlon, Advocate
for the revision-petitioner
***
REKHA MITTAL, J.
By way of this order, we shall dispose of Criminal Appeal Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -2- No. 384-DB of 2008 titled "Sarabjit Singh @ Vicky and others vs. State of Punjab" and Criminal Revision No.2300 of 2008 titled "Udham Singh vs. Iqbal Singh and others", as they have arisen out of the same judgment of conviction and order of sentence dated 6.5.2008 passed by the Court of Additional Sessions Judge, Ludhiana, in respect of FIR No. 83 dated 1.5.2001 registered in Police Station, City Khanna for offence punishable under Sections 452, 302, 307 read with Section 34 IPC and Sections 25 and 27 of the Arms Act, 1959, whereby appellants Sarabjit Singh @ Vicky, Inderjit Singh and Iqbal Singh have been convicted and sentenced as detailed hereinbelow:-
Sarabjit Singh @ Vicky under Section To undergo imprisonment for life and to pay fine of ` 5000/- and in default of payment of 302 IPC fine to further undergo rigorous imprisonment for one year Under Section To undergo rigorous imprisonment for three 452 IPC years and to pay fine of ` 2000/- and in default of payment of fine to further undergo rigorous imprisonment for six months Under Section To undergo rigorous imprisonment for three 27 of Arms years and to pay fine of ` 2000/- and in default Act, 1959 of payment of fine to further undergo rigorous imprisonment for six months Inderjit Singh Under Section To undergo imprisonment for life and to pay 302/34 IPC fine of ` 5000/- and in default of payment of fine to further undergo rigorous imprisonment for one year Under Section To undergo rigorous imprisonment for three 452 IPC years and to pay fine of ` 2000/- and in default of payment of fine to further undergo rigorous imprisonment for six months Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -3- Iqbal Singh Under Section To undergo rigorous imprisonment for six 30 of the Arms months and to pay fine of ` 2000/- and in Act, 1959 default of payment of fine to further undergo rigorous imprisonment for two months The period of detention undergone by Iqbal Singh was ordered to be set off against the substantive sentence. The substantive sentences of imprisonment awarded to Sarabjit Singh @ Vicky and Inderjit Singh were ordered to run concurrently. However, accused Ravinder Pal Singh @ Channi son of Harnam Singh was acquitted of the charge framed against him.
Briefly stated, on 1.5.2001 Rajesh Hasteer, SHO Police Station, City Khanna, along with police party was crossing Kucha Partap, Navi Abadi, Khanna and was attracted to the place of occurrence on hearing cries. Pawandip Kaur wife of Baljinder Singh got her statement recorded that at about 2-00 p.m., her husband Baljinder Singh came to the house for lunch. Jaswinder Singh @ Giani son of Udham Singh resident of village Bhuta, District Fatehgarh Sahib, a friend of Baljinder Singh had brought his esteem car to lend it to them. She requested Jaswinder Singh to take lunch with them. Her husband and Jaswinder Singh took lunch together. Her husband, Jaswinder Singh, mother-in-law Satwant Kaur and she herself were standing in the lobby of their house. Ravinder Pal Singh @ Channi, his son Sarabjit Singh @ Vicky, Iqbal Singh and Inderjit Singh brothers of Channi were standing in the gali (lane). Ravinder Pal Singh raised Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -4- lalkara that they would teach a lesson to 'Giani' for stopping their way. They forcibly entered their house. Inderjit Singh was armed with the handle of generator engine. Iqbal Singh was armed with a .12 bore gun. Ravinder Pal Singh caught hold of Jaswinder Singh from his neck. Sarabjit Singh dragged Giani. Inderjit Singh dealt a blow with the handle of an engine to Jaswinder Singh but he snatched the handle and gave a blow with handle on the head of Inderjit Singh. Iqbal Singh handed over the double barrel gun to Sarabjit Singh and asked him to shoot and finish the matter. Her mother-in-law Satwant Kaur stood in front of Jaswinder Singh and said "if they were to kill then they should shoot her first". Ravinder Pal Singh pushed her mother-in-law to a side. Inderjit Singh and Iqbal Singh dragged her husband. Sarabjit Singh fired a shot straight towards Giani hitting on his right thigh. He fell down on the ground. Her husband ran inside and brought his .12 bore licensed gun. He fired two shots in the air in self defence. The assailants fled away from the spot with their respective weapons. The motive for the crime was that family of Ravinder Pal Singh suspected that their niece had illicit relationship with some relative of Jaswinder Singh, and he was helping his relative. Her husband took Jaswinder Singh in the said car to Civil Hospital, Khanna.
On the basis of statement of the complainant, ruqa was sent to the Police Station, City Khanna, which led to registration of formal FIR No. 83 dated 1.5.2001. Jaswinder Singh died in CMC Hospital, Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -5- Ludhiana and offence under Section 302 IPC was added. Inquest proceedings were conducted on the dead body. The post mortem examination of the dead body was got conducted. The accused were arrested in the case. The statements of the witnesses were recorded. The gun belonging to accused Iqbal Singh and used in the crime was taken into police possession. On receipt of the report of Forensic Science Laboratory and completion of necessary investigation formalities, report under Section 173 Cr.P.C. was presented in the Court for commencement of the trial.
After due compliance with the mandatory provisions of Section 207 Cr.P.C., the case was committed to the Court of Sessions as offence under Section 302 IPC is exclusively triable by the said Court.
On finding a prima facie case, charge under Sections 452, 302 read with Section 34 IPC was framed against accused Ravinder Pal Singh @ Channi, Inderjit Singh, Sarabjit Singh @ Vicky and Iqbal Singh. Charges under Section 27 read with Section 30 of the Arms Act, 1959 were also framed against Iqbal Singh and Sarabjit Singh. The accused pleaded not guilty and claimed trial.
To substantiate charges against the accused, the prosecution examined as many as 10 witnesses namely, Dr. Ashok Raswant Radiologist, PW-1, Pawandip Kaur PW-2, Baljinder Singh @ Neela PW-3, HC Jaswinder Singh PW-4, C-II Sohan Singh PW-5, Dr. P.D.Singla PW-6, Stephon M. Assistant Medical Record Keeper of CMC Hospital, Ludhiana PW-7, SI Rajesh Hasteer (Investigating Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -6- Officer )PW-8, Dr. Sudhir Sethi, Medical Officer PW-9 and Dr. Swaran Dass PW-10.
On evidence of the prosecution being closed, statements of the accused were recorded in terms of Section 313 Cr.P.C. The accused denied all the incriminating circumstances put to them and pleaded their false implication and innocence. Accused Inderjit Singh raised a plea, which is quoted thus:-
"I am innocent and I have been falsely implicated in this case. I had gone to the house of my elder brother to take money. As I was about to enter the house of my brother, deceased Jaswinder Singh @ Giani came and on seeing me gave filthy abuses to me saying that I was spreading false rumours against him (Jaswinder Singh) and he (JS) will teach me a lesson for this. Jaswinder Singh tried to hit me with rod and I ran. Jaswinder Singh pushed me on which I fell down and my turban also fell from my head. Jaswinder Singh gave a rod blow on my head. In the mean time lot of people gathered there and they started beating Jaswinder Singh Giani. Jaswinder Singh Giani ran and entered the house of Baljinder Singh @ Neela. People who were following Jaswinder Singh also entered the house of Neela. Neela brought his rifle and with his rifle fired two shots one of which hit Giani. Thereafter I became unconscious."
Saini Paramjit Kaur Counsel for the appellants submits that the learned trial 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -7- Court has rightly recorded a finding in favour of accused Ravinder Pal Singh and exonerated for the murder of Jaswinder Singh. The trial court has not accepted the prosecution version in its entirety, thereby creating a serious doubt in the story propounded by Pawandip Kaur, the author of the FIR. Baljinder Singh PW-3 was put to trial on the basis of a cross version set out by the accused. According to counsel, in case the Court is not able to arrive at a clear conclusion that the accused are aggressors or authors of the crime, it is not permissible for the Court to draw its own version to record a verdict of guilt against the accused. Further dilating, it is submitted that the genesis of the crime is doubtful and the benefit thereof is liable to be extended to the accused. To bring home his contention, counsel has submitted that the fight was started by Jaswinder Singh in the street outside the house of complainant Pawandip Kaur but when Jaswinder Singh was chased by the public, he entered the house of the complainant, Baljinder Singh PW-3, fired two shots from his licenced gun, and one of the shots hit Jaswinder Singh but later the complainant and Baljinder Singh connived and brought forth a tainted version to implicate the accused in the crime so as to save Baljinder Singh from the consequences of his illegal act.
As per the prosecution version, motive for the crime is that a relative of Jaswinder Singh had illicit relations with a niece of the accused/assailants. It is argued that no evidence has been led to prove any such relationship or that the accused were feeling offended because of Jaswinder Singh rendering any help to a relative or instigating him Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -8- to carry on with such a relationship. Counsel has argued that in the absence of the prosecution proving any such motive of the accused to cause harm to Jaswinder Singh, the story of the prosecution becomes highly suspicious.
Counsel further submits that Pawandip Kaur and Balijnder Singh, the star witnesses of the case have made material improvements viz-a-viz their earlier version thus casting a shadow of doubt on the veracity. Pawandip Kaur and Baljinder Singh are not independent witnesses as Baljinder Singh was booked for murder of Jaswinder Singh on the basis of a cross version recorded at the behest of the accused. According to counsel, Pawandip Kaur and Baljinder Singh have given a tainted version to save their skin. In these circumstances, their testimonies cannot form the basis for conviction without looking for corroboration from an independent source.
Counsel argues that version of Pawandip Kaur and Baljinder Singh that Jaswinder Singh took his lunch at about 2-00 p.m. is falsified and belied in view of medical evidence, as 150 CC of digested food was found in the stomach of the deceased, as per the post mortem report. According to counsel, if Jaswinder Singh had consumed food consisting of 2/3 chapatis and vegetable of kofta at about 2.30 p.m. and he died shortly after consuming food, the food could not be 'digested' rather it would be 'undigested'.
Another argument advanced by counsel is that as per the prosecution, the deceased came to the house of the complainant to Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -9- leave his car there. There is no evidence on record with regard to the particulars of the car which was admittedly not taken into possession during investigation. Pawandip Kaur and Baljinder Singh have made contradictory statements with regard to availability of car. As per Pawandip Kaur, the car was being used by her family till the time her cross examination was conducted in the Court in the year 2003. Baljinder Singh has deposed that the car had been taken away by relatives of the deceased who came to attend the cremation in the said car.
Counsel has further submitted that the police have conducted a tainted investigation. The blood stained bed sheet and seat covers of the car, the turban of Inderjit and handle of the generator engine were not taken into police possession. The memo with regard to recovery of gun from Sarabjit Singh does not bear his signatures. The report of the Forensic Science Laboratory does not connect the gun of Iqbal Singh with the crime because there is no opinion that the pellets retrieved from the body of the deceased matched with the gun belonging to Iqbal Singh. It is argued with vehemence that Baljinder Singh did not like the visit of Jaswinder Singh to his house and taking advantage of the situation created by Jaswinder Singh, as pleaded by the accused, Baljinder Singh fired two shots from his gun and one of those shots hit the deceased and proved fatal. Pawandip Kaur and Baljinder Singh joined hands to give a twist to the whole occurrence and falsely implicated the accused in order to save Baljinder Singh of Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -10- his criminal act.
Counsel for the appellants submits that if Iqbal Singh had gone to the place of occurrence, armed with his double barrel gun with an intention to cause harm to the deceased, it is against normal human conduct that he would hand over the gun to another person to fire in place of using it himself. It is further submitted that neither Iqbal Singh was present on the spot nor his gun was used in the crime but his presence has been manipulated to involve his gun and further to create evidence that the gun was used by Sarabjit Singh to cause injury to the deceased.
With regard to the culpability of Inderjit Singh, it is submitted that no specific injury has been attributed to Inderjit Singh. Inderjit Singh sustained serious injuries but the prosecution has explained only one injury on the head of Inderjit Singh. It is further argued that Inderjit Singh is a victim of fight initiated by Jaswinder Singh but as Jaswinder Singh succumbed to the injury received at the hands of Baljinder Singh, Inderjit Singh was also arrayed as an accused at the instance of Pawandip Kaur.
The last submission made by counsel is that in case the appeal is not accepted, only appellant Sarabjit Singh, at best, can be held guilty of committing offence under Section 304-Part I IPC. To substantiate his contention, it is argued that in view of the sequence of events narrated by prosecution witnesses, it is difficult to infer that Sarabjit Singh fired a shot with an intention to kill Jaswinder Singh @ Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -11- Giani. The injury was caused on a non-vital part of the body i.e. the right thigh. PW1 Dr. Ashok Raswant, who conducted the post mortem examination has admitted during cross examination that if timely medical aid is given in such like cases a person would survive. Counsel has argued that Jaswinder Singh was not shifted to hospital immediately after the occurrence for instant medical aid which resulted in loss of blood and for that reason he could not survive. In support of his contention he has relied upon Rajinder vs. State of Haryana (2006) 5 SCC 425.
Counsel for the State as well as counsel for the revision petitioner submit that no fault can be found with the judgment of the learned trial Court so far as holding appellants Sarabjit Singh and Inderjit Singh guilty of committing murder of Jaswinder Singh as the same is based upon a correct appreciation of evidence in the light of settled legal principles. However, counsel for the revision petitioner argues that the trial Court has committed a grave error in giving a clean chit to accused Ravinder Pal Singh @ Channi and acquitting accused Iqbal Singh of the offence punishable under Sections 302 IPC, 452 IPC and Section 27 of the Arms Act, 1959. It is further argued that as accused Ravinder Pal Singh and Iqbal Singh arrived at the spot with their co-accused Sarabjit Singh and Inderjit Singh and Iqbal Singh brought his double barrel gun with him, it proves that the accused came to the spot in pursuance of their common intention to kill Jaswinder Singh. He has further submitted that Pawandip Kaur made a clear and Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -12- categoric statement that Iqbal Singh exhorted his co-accused Sarabjit Singh, and handed him over his double barrel gun to kill Giani, therefore, the prosecution has led overwhelming evidence to prove guilt of Iqbal Singh for offence under Section 302 IPC with the aid of Section 34 IPC. He has prayed that revision petition be accepted and accused Iqbal Singh should be convicted and sentenced for commission of offence punishable under Section 302 IPC and 452 IPC. However, as Ravinder Pal Singh has died during the pendency of the proceedings, he does not press his revision against him.
Before we proceed to adjudicate the merits of the case, it would be appropriate to mention, at the outset, that the presence of Inderjit Singh in front of the house of the complainant and a fight between the deceased and Inderjit Singh has been admitted. There is no challenge to the prosecution case that Jaswinder Singh sustained an injury on his thigh as a result of a gun shot. However, there is a serious dispute with regard to the manner of occurrence and the author of injury, on the thigh of the deceased which proved fatal.
The main question which arises for our consideration is, 'who fired the fatal shot, whether accused Sarabjit Singh @ Vicky or Baljinder Singh PW-3?' Baljinder Singh faced a criminal trial on the basis of a cross version put forth by the accused party. The cross version got recorded by the accused has not been produced in evidence in the present proceedings, however, in the cross version case, admittedly, Baljinder Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -13- Singh has been set free after a full fledged trial conducted by the Court of Additional Sessions Judge, Ludhiana. His acquittal has not been challenged before this Court. Even the judgment recorded by the trial Court exonerating Baljinder Singh has not been produced. The very fact that Baljinder Singh has been acquitted of the charge of murder of Jaswinder Singh and the cross version set out by the accused is found to be false, leads to a safe conclusion that the plea raised by the accused is false, baseless and unfounded. It further appears that the accused came out with a cross version to weaken the case of the prosecution or to confuse the issue to escape the consequences of their criminal act.
Pawandip Kaur wife of Baljinder Singh set the criminal law in motion as she is the author of the FIR. The occurrence in question took place on 1.5.2001. Pawandip Kaur was examined in chief on 29.5.2003. Her cross examination was conducted on 23.9.2003. During her deposition, no such plea was raised by the defence counsel that the fatal shot was fired by her husband. In response to the question put by defence counsel during cross examination with regard to presence of her husband at the time he (her husband) fired two shots from his gun, she has deposed to the following effect:-
" I was present when my husband fired two shots from his gun. My husband fired the shot in the air while standing in the lawn. The gun was lying in the bed room when my husband pick up the gun by going to the drawing room and Saini Paramjit Kaur he came back on the same way. At that time when my 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -14- husband fire, I was standing near the stair case. My mother-in-law was near Giani who was lying on the ground. Giani was lying near the door of the lobby and there is only one door in the lobby."
With regard to presence of her husband at the time of firing by the accused, an extract from her statement reads as follows:-
" At the time of firing the shot my husband was held by Iqbal Singh and Inderjit Singh near the stair case and I was also near my husband and was trying to rescue him from their cluches. My husband was caught hold by Inderjit Singh and Iqbal Singh for about a minute.
No such question was directed by the accused to Pawandip Kaur that her husband had fired a shot and caused injury to the victim (deceased) The failure of the accused to direct such a question much less to confront her with any such material that the shot in question was fired by Baljinder Singh, makes it difficult for us to accept the contention of the appellants that version of Inderjit Singh, reproduced hereinabove, as given during examination under Section 313 Cr.P.C. is liable to be accepted.
The main plank of the accused that Baljinder Singh fired a shot from his gun with an intention to kill the deceased is that he did not like visit of Jaswinder Singh to his house as Jaswinder Singh had illicit relations with Pawandip Kaur. The question which arises for our consideration is whether the plea raised by the accused to this effect Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -15- can be accepted. We are conscious of the fact that the standard of proof expected from an accused while proving his defence is much lower than that expected from the prosecution. We have already referred above that the cross version set up by the accused has been found to be false in the trial of Baljinder Singh. Pawandip Kaur has emphatically denied the suggestion that Baljinder Singh disliked visit of Jaswinder Singh, to his house. A relevant part from her testimony reads as follows:-
"It is incorrect that my husband did not like visit of Giani to our house. It is incorrect to suggest that my husband was stopping me from meeting him. It is incorrect that we do (sic)not try to take Giani to hospital and he continued lying there for an hour and lying there bleeding."
No witness has been examined in defence to prove that there was any intimacy between the complainant and the deceased or Baljinder Singh PW-3 did not like visit of Giani, to their house. Even otherwise, the plea of the accused in this regard appears to be baseless. Jaswinder Singh is, admittedly, a resident of village Bhutta, Tehsil Khamano District Fatehgarh Sahib. The occurrence in question took place in the house of complainant Pawandip Kaur in Kucha Partap, Navi Abadi, Khanna. It is contrary to natural human conduct rather highly improbable that if a person comes to meet a woman due to his illicit relations, he would initiate any quarrel in that area at the risk of exposing himself publicly. This apart, it has come on record that Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -16- Pawandip Kaur, complainant is residing in her house in the company of her husband, their children, her mother-in-law, father-in-law and grand mother-in-law. At the time of occurrence, undisputedly, her husband, mother-in-law and grand mother-in-law were present in the house. It is next to impossible that a person having an illicit relation with a woman would visit her house in the presence of her husband, mother-in-law etc. particularly, as alleged by the defence, her husband disliked his coming there. In this view of the matter, we find it extremely difficult to accept the contention of the appellants that either the fight started in the street out side the house of the complainant or it was initiated at the behest of the deceased to take avenge of his alleged grievance. Taken from any angle, there is no merit in the contention of the appellants that the fight was started by the deceased or the occurrence in question took place in the manner deposed by Inderjit Singh or the fatal shot was fired by Baljinder Singh with an intention to kill Jaswinder Singh due to his illicit relations with his wife. Once the plea of the accused is rejected, the necessary fall out is that the fatal shot was fired by appellant Sarabjit Singh using the gun of accused Iqbal Singh.
Much stress has been laid by counsel that the car allegedly brought by the deceased to the house of the complainant, the blood stained sheet and seat covers of the car, turban of Inderjit Singh and handle of generator engine have not been taken into police possession. First of all, if the investigating officer of the case for reasons known to Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -17- him has not conducted proper investigation, the complainant cannot be condemned for the same. In the face of a defective investigation, the Court is to be more vigilant in evaluating the evidence, but cannot record an order of acquittal solely on account of defect in investigation. In case the Court records acquittal by finding faults in the investigation, it would amount to playing into the hands of the investigating officer if the investigation is designedly defective. If primacy is given to such designed or negligent investigation or to omissions or lapses on account of perfunctory investigation, the faith and confidence of the people would be shaken not only in the law enforcing agency but also in the administration of justice. In this context, reference can be made to a judgment of the Hon'ble Supreme Court in Zahira Habibullah Sheikh and another vs. State of Gujrat and others 2006(2) RCR(Criminal) 448. The other judgments relevant in this context are Dhanaj Singh @ Shera and others vs. State of Punjab 2006(2) RCR (Criminal) 428 and Karnel Singh vs. State of Madhya Pradesh 1995 AIR (SC) 2472.
Now coming to the case in hand, the offence was not committed in the car brought by the deceased. As per the statement of Pawandip Kaur, blood stained bed sheet and seat covers of the car were taken into possession by the police but without preparing seizure memo. Pawandip Kaur has also stated that the police used to come to their house and were pressurizing them to compromise. It has been brought on record that one of the accused namely, Iqbal Singh is a Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -18- Municipal Councilor of Khanna. Iqbal Singh was not arrested in this case by the investigating agency which persuaded Pawandip Kaur to file a petition in this Court complaining against inaction of the investigating agency and only thereafter Iqbal Singh was arrested in this case. In the face of these circumstances, the reasons for failure of the investigating officer to conduct proper investigation and to collect all available pieces of evidence, is not far to seek. As the omission by the investigating agency appears to be motivated, the prosecution evidence has to be examined de hors such omissions so as to ascertain whether the evidence is reliable or not. The conduct of Investigating agency cannot stand in the way of evaluating the evidence as otherwise the designed mischief would serve the purpose to subvert justice. In this view of the matter, the accused cannot take any advantage of their contention about omissions on the part of the investigating officer.
The investigating officer did not bother to collect evidence with regard to motive of the crime. In a case of direct evidence, the motive for the crime pales into insignificance. Be that as it may, in the present case, the investigating agency was tilted towards the accused because of political influence of accused Iqbal Singh. The failure of the investigating officer(s) to conduct proper investigation and to collect evidence with regard to motive, in our considered opinion, cannot be allowed to be used in favour of the appellants.
Pawandip Kaur was subject to a searching cross examination by two counsels representing the accused.
Saini Paramjit Kaur Nothing 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -19- material and tangible has been elicited during cross examination to discard or disbelieve her testimony. The mere fact that the accused lodged a cross version against Baljinder Singh, husband of Pawandip Kaur, is not sufficient to brand her as an interested witness much less to discard her testimony. The cross version of the accused has been disbelieved during the trial of Baljinder Singh. The plea of the accused, as detailed in the statement of Inderjit Singh, is bereft of any foundation much less truth. The mere fact that Pawandip Kaur's testimony contains an additional fact that accused Sarabjit Singh picked up brick bats and flower pots and hit 'Giani' on his head and other parts of his body is not sufficient to disbelieve her as Pawandip Kaur has satisfactorily explained this omission by stating that she told the police about these facts and her statement had not been recorded in detail as the police said that minor matters are not to be mentioned in her statement and, therefore, she put her signatures on statement Ex. PD. We may not take into consideration her explanation having been raised for the first time during trial but otherwise it appears to be true in the back ground that the police was assisting the accused owing to political influence wielded by Iqbal Singh. This apart, minor discrepancies, contradictions and omissions cannot be allowed to outweigh reliable evidence. Pawandip Kaur has not made additions in regard to any material fact.
The occurrence in question took place at about 2/2-30 p.m. Jaswinder Singh did not die instantly. He remained alive until he was Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -20- shifted to Civil Hospital, Khanna. As per the plea of the accused, he was shifted to hospital after one hour. He was given medical aid in the hospital and was referred to a hospital at Ludhiana. However, the time of his death has not been proved with certainty. Nevertheless, it can be safely inferred that the deceased remained alive for two or more than two hours after sustaining injuries. The food consumed by the deceased consisted of chapati and kofta vegetable, mainly containing carbohydrates. The deceased was a young man of 25 years of age. The food containing carbohydrates in large quantity takes less time to digest. Moreover, a young person takes less time to digest food. Under these circumstances, the fact that the food in the stomach of the deceased was digested neither contradicts the version of the complainant nor it otherwise creates any inconsistency in the case of the prosecution.
The accused have raised a plea that Baljinder Singh left the spot immediately after the occurrence through a door on the back side of his house and he did not shift the injured to the hospital. Pawandip Kaur had no ill will or animosity against the accused. Pawandip Kaur gave a prompt and detailed version specifying the role attributed to each of the accused. It is difficult to believe that a woman, without loss of time and in the absence of an opportunity to deliberate and consult, could come out with a version accusing four persons, if such an occurrence had not actually taken place in the manner stated. We, thus, do not find any merit in the contention of the appellants that the Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -21- narration set out by Pawandip Kaur is tainted or that the same cannot form the basis for the conviction without looking for corroboration from an independent source. We would hasten to add that the accused came out with a cross version taking advantage of their influence and status, may be with an intention to side track the issue. The testimony of Pawandip Kaur cannot be doubted simply for the reason that the accused lodged a cross case against her husband, particularly in the back ground that the said version has been found to be false after judicial scrutiny and her husband has been acquitted of the offence charged.
Counsel for the appellants made an attempt to contend that intention of Sarabjit Singh to kill Jaswinder Singh cannot be inferred from the sequence of events and series of circumstances on record. No doubt, the shot fired by Sarabjit Singh hit the deceased on his thigh, a non vital part of his body. As per statement of Pawandip Kaur, Iqbal Singh exhorted Sarabjit Singh to kill Jaswinder Singh while handing over his .12 bore gun. The mother-in-law of Pawandip Kaur came in front of Jaswinder Singh to save him. Baljinder Singh tried to come forward but Iqbal Singh and Inderjit Singh grabbed him. If Sarabjit Singh did not intend to kill Jawinder Singh, there was sufficient time for him to think before firing a shot. Pawandip Kaur has deposed that Sarabjit Singh fired a shot straight towards Jaswinder Singh. The fact that Iqbal Singh exhorted Sarabjit Singh to fire a shot and kill Giani coupled with the fact that he fired a shot straight towards Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -22- Jaswinder Singh establishes the intention of the assailant to kill the deceased. It is a different matter that Sarabjit Singh did not prove to be a good marksman and, therefore, missed firing at a vital part of the body. In this scenario, we do not find any merit in the contention of the appellants that Sarabjit Singh had no intention to kill the deceased or his conviction is liable to be converted into offence under Section 304-Part I IPC.
So far as the culpability of accused Inderjit Singh, the plea of the accused that the deceased started the fight in the street has been rejected, as discussed hereinbefore. Inderjit Singh was admittedly present on the spot. The head injury sustained by him has been explained by the prosecution. It is not his plea that other injuries found on his person were caused by the deceased. He dealt a blow with handle of generator engine but the victim was successful in warding off the attempted blow. The assailants appeared on the scene of crime together. Inderjit Singh was armed with a handle of generator engine. His co-accused, Iqbal Singh was armed with a double barrel gun. To prove common intention, a necessary inference is to be drawn from the peculiar facts of each case in the light of attending circumstances. In view of the aforementioned facts, no error is discernible in the finding that Inderjit shared a common intention with Sarabjit Singh, rendering him constructively liable for the murder of Jaswinder Singh by Sarabjit Singh, with the aid of Section 34 IPC. Inderjit Singh cannot escape his liability on a compassionate ground that the deceased inflicted a Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -23- head injury to him.
Ravinder Pal Singh @ Channi was acquitted of the offence charged against him. Iqbal Singh has only been convicted for an offence under Section 30 of the Arms Act. No appeal has been preferred by the State against acquittal of these accused for the offence of murder. However, a revision petition has been preferred by Udham Singh to assail the verdict of the trial Court in regard to acquittal of Ravinder Pal Singh @ Channi and Iqbal Singh for the said offence. Counsel for the revision petitioner made a statement that he does not press petition qua acquittal of Ravinder Pal Singh, who has passed away during pendency of the proceedings.
So far as the verdict of trial Court regarding acquittal of Iqbal Singh it is argued that the trial Court has ignored prosecution evidence and assigned reasons, that are contrary to the record. It is argued that as the gun belongs to Iqbal Singh and prosecution witnesses have deposed about his presence and role in the occurrence, his acquittal under Section 302 read with Section 34 IPC may be set aside. The arguments against the acquittal of Iqbal Singh are unfounded. The benefit of doubt granted to Iqbal Singh is neither perverse nor arbitrary and, therefore, in exercise of revisional jurisdiction, we cannot interfere with this finding.
In view of what has been stated hereinabove, the appeal preferred by appellants Sarabjit Singh @ Vicky, Inderjit Singh and Iqbal Singh is dismissed. The judgment of conviction and order of Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No. 384-DB of 2008(O&M) -24- sentence passed by the learned trial Court are affirmed. The revision petition filed by Udham Singh is dismissed. Bail bonds furnished by appellant No. 2 stands cancelled and he be taken into custody to suffer the sentence along with appellants No. 1 and 3, awarded by the learned trial Court.
(REKHA MITTAL) JUDGE ( RAJIVE BHALLA) JUDGE September 6th , 2013 PARAMJIT Saini Paramjit Kaur 2013.09.17 14:07 I attest to the accuracy and integrity of this document Chandigarh