Punjab-Haryana High Court
Criminal Appeal No. 561-Dba Of 2005 vs Bhupinder Singh @ Rana on 9 November, 2009
Bench: Mehtab S.Gill, Ram Chand Gupta
CRIMINAL APPEAL NO. 561-DBA of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
1. CRIMINAL APPEAL NO. 561-DBA OF 2005
State of Punjab ......APPELLANT
Versus
Bhupinder Singh @ Rana ......RESPONDENT
2. CRIMINAL APPEAL NO. 591-DBA OF 2005 State of Punjab ......APPELLANT Versus Harcharan Singh and Balwinder Singh......RESPONDENT
3. CRIMINAL REVISION NO. 832 OF 2005 Ramesh Kumar ......APPELLANT Versus State of Punjab and others ......RESPONDENT
4. CRIMINAL APPEAL NO.1874-SB OF 2004 Harcharan Singh ......APPELLANT Versus State of Punjab ......RESPONDENT
5. CRIMINAL APPEAL NO. 1667-SB OF 2004 Balwinder Singh ......APPELLANT Versus State of Punjab ......RESPONDENT CORAM HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE RAM CHAND GUPTA CRIMINAL APPEAL NO. 561-DBA of 2005 2 Criminal Appeal No. 1667-SB of 2004 Present:- Mr. H. S. Rakhra, Advocate for the appellant Ms. Gurvin H. Singh, Additional Advocate General, Punjab assisted by Mr. H. S. Sangha, Advocate.
Criminal Appeal No.1874-SB of 2004 Present: Mr. APS Deol, Sr. Advocate with Ms. Manpreet Kaur, Advocate for the appellant.
Ms. Gurvin H. Singh, Additional Advocate General, Punjab with Mr. H. S. Sangha, Advocate.
Criminal Appeal No. 561-DBA of 2005, Criminal Appeal No. 591-DBA of 2005 and Criminal Revision No. 832 of 2005 Present Ms. Gurvin H. Singh, Additional Advocate General, Punjab with Mr. H. S. Sangha, Advocate.
Mr.APS Deol, Sr. Advocate with Ms. Manpreet Kaur, Advocate.
Mr. H. S. Sangha, Advocate MEHTAB S.GILL, J We will be deciding Crl. A. No. 561-DBA of 2005, Crl. A. No. 591-DBA of 2005, Crl. A. No. 1667-SB of 2004, Crl. A. No. 1874-SB of 2004 and Crl. Revision No. 832 of 2005 by a common order/judgment as the appeals are from a common order/judgment passed by the Ld. Additional Sessions Judge, Bathinda, dated 4.8.2004.
The learned trial Court convicted Balwinder Singh under Section 304-II IPC and Harcharan Singh under Section 304-II read with Section 34 IPC. Bhupinder Singh @ Rana was acquitted by the learned trial Court. The fourth accused Manpreet Singh son of Jagjeet Singh was CRIMINAL APPEAL NO. 561-DBA of 2005 3 declared a juvenile but during his trial, it came out that he was a major and was thus, tried by the Regular Court of Additional Sessions Judge, Bathinda, who acquitted him vide its order dated 3.5.2005.
Accused Balwinder Singh was sentenced to undergo 7 years rigorous imprisonment and to pay a fine of Rs.4,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of four months and Harcharan Singh was sentenced to undergo 4 years rigorous imprisonment and to pay a fine of Rs.2,000/- per month and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months.
Against the order of the learned Additional Sessions Judge, Bathinda, State filed Crl. A. No. 561-DBA of 2005 against the acquittal of Bhupinder Singh @ Rana and also for enhancement of the sentence in Criminal Appeal No. 591-DBA of 2005 of Balwinder Singh and Harcharan Singh.
We will not be dealing with the case of Manpreet Singh son of Jagjeet Singh as his appeal is not before us for the reason that his acquittal order was passed by the learned Additional Sessions Judge, Bathinda on 3.5.2005 and no appeal has been filed by the State.
Learned counsel for the appellants Mr.APS Deol, Sr. Advocate has stated that Balwinder Singh @ Rana has died during the pendency of the appeal. Criminal Appeal No. 1667-SB of 2004, against him is, thus, abated.
The case of the prosecution is unfolded by the statement Ex.PE of Ramesh Kumar. Ramesh Kumar has stated that he resides near Bal Bhavan, Ganesha Basti, Bathinda. He has three sons, eldest being Sandeep CRIMINAL APPEAL NO. 561-DBA of 2005 4 Kumar, younger to him is Rajeev Kumar and youngest is Navdeep Kumar. Rajeev Kumar and Gian Chand have a common orchestra by the name of David Orchestra. On 27.3.2002, marriage of Satbir Singh of village Chareli took place. One Harcharan Singh engaged their orchestra. Sukhpal Singh @ Palli worked with him as an announcer. Rajeev Kumar told the complainant when he left for his work, that he will come back at about 3 pm. When Rajeev Kumar did not return by the time he had to come, Ramesh Kumar got worried and he went to Kohinoor Marriage Palace, Bathinda to find out about Rajeev Kumar. After sometime, Balwinder Singh, Harcharan Singh and some young boys accompanying them whose names he did not know, started quarrelling with his son Rajeev Kumar and told him that he was not playing the songs of their choice. Rajeev Kumar requested these three persons that he did not have the cassettes. Ramesh Kumar and Sukhpal Singh then pacified the three persons. At about 5:30 pm after the function was over, Ramesh Kumar and his son Rajeev Kumar alongwith Sukhpal Singh were going back to the house, when they reached near Bhatti road from Barnala Road, five persons namely Balwinder Singh, Harcharan Singh armed with sword and the others empty handed were coming behind them. A tall man who was coming alongwith accused raised a lalkara, by shouting, Rajeev be brave and get ready. Thereafter, they started throwing brickbats. Balwinder Singh took a brickbat and threw it towards Rajeev Kumar which hit him on the back of his head. More brickbats were pelted towards them but Ramesh Kumar alongwith others receded out of fear. Rajeev Kumar fell down. Thereafter, all the five accused ran away. Ramesh Kumar then rang up Sahara Club to send a conveyance. Before they could reach the Civil Hospital, Bathinda, Rajeev Kumar passed away. CRIMINAL APPEAL NO. 561-DBA of 2005 5
On the basis of this statement Ex.PE, FIR Ex.PE/2 was recorded on 27.3.2002 at 7:55 pm and the special report reached the Chief Judicial Magistrate, Bathinda on the same day at 11 PM.
The prosecution to prove its case, brought into the witness box Dr. Kasturi Lal PW1, ASI Mohri Lal PW2, Ramesh Kumar PW3, Sukhpal Singh PW4, Paramjit Singh PW5 and SI Balwinder Singh PW6.
Learned counsel for the appellants has argued that the presence of Ramesh Kumar PW3, father of the deceased is doubtful. He is not a natural witness. He is an interested witness. Going by his statement and taking into consideration the statement of Sukhpal Singh PW4, it is clear that he was not present at Kohinoor Marriage Palace, Bathinda.
If we go through document i.e ruka Ex. PD, it comes out that the person who admitted Rajeev Kumar was one Sham Murari, an employee of Sahara Club on 27.3.2002 at 6:05 pm. On the same document Ex. PD, are the signatures of Ramesh Kumar. Under the signatures, the timing is given as 6:40 pm. From this, it is clear that Ramesh Kumar reached the hospital late i.e after Sham Murari.
The natural witness to the occurrence is Sukhpal Singh PW4, who was a part of the orchestra as an Announcer. He has given a truthful version.
Both the witnesses i.e Sukhpal Singh PW4 and Paramjit Singh PW5, an independent witness, have turned hostile and have not supported the prosecution case. There is no corroboration to the statement of Ramesh Kumar PW3.
Learned counsel has further argued that if at all a case is made out, it is made out under Section 304-II IPC as there was no pre-meditation CRIMINAL APPEAL NO. 561-DBA of 2005 6 or any meeting of minds. There was no common intention.
Learned counsel for the State has argued that Ramesh Kumar PW3 is a natural witness, as his house was near Kohinoor Marriage Palace. He went at 3 pm looking around for his son who had not returned. The other eye witness to the occurrence Sukhpal Singh PW4 turned hostile as he was won over by the accused. Similarly Paramjit Singh PW5 was also won over by the accused.
There is no delay in lodging of the FIR. Occurrence had taken place on 27.3.2002 at 5:30 pm. FIR Ex. PE/2 came into existence on the same day at 7:55 pm and by 11 pm, the special report had reached the CJM, Bathinda, on the same day. Name of Balwinder Singh, appellant, is clearly mentioned. It has been stated that brickbats were used to injure the deceased. Further it was appellant Balwinder Singh who had thrown a brick at the head of deceased Rajeev Kumar proved fatal.
The Investigating Officer, Balwinder Singh SI PW6 has recovered the brickbats from the spot.
The medical evidence corroborates the ocular account. We have heard learned counsel for the parties and perused the record with their assistance.
Ruka Ex. PD was sent to the Station House Officer, Civil Lines Bathinda by the doctor/Incharge on 27.3.2002. It had been mentioned in the ruka that a dead body had arrived. The name of the dead person being Rajeev Kumar son of Ramesh Kumar. The site where the incident had taken place was Bhatti road, Bathinda. Under this writing, it has been mentioned that the body was brought by Sham Murari of Sahara Club. The signatures of Sham Murari are in Hindi. Under the signatures, the time given is 6:05 CRIMINAL APPEAL NO. 561-DBA of 2005 7 pm. On the left hand side of ruka Ex. PD are the signatures of Ramesh Kumar, father of the deceased. Under his signatures, the date given is 27.3.2002 and the timing is 6:40 pm. Taking the timing into consideration, one thing comes out very clearly, is that the body was brought by Sham Murari at 6:05 pm to the Civil Hospital, Bathinda. If Ramesh Kumar PW3 had been along with the body, then under his signatures also, the timing would have been given the same as the time of Sham Murari i.e 6:05 pm on ruka Ex.PD. If the dead body was brought by Ramesh Kumar PW3 of his son, there was no need for the doctor to write that the body was brought by Sham Murari of Sahara Club, then the doctor would have written the name of Ramesh Kumar PW3, the father of the deceased.
On the ruka Ex. PD, Statement of Ramesh Kumar PW3 also is not trustworthy and truthful. In this statement before the Court, he has stated that Harcharan Singh was armed with a Kirpan. In his statement Ex. PE, on the basis of which FIR Ex. PE/2 has been recorded, he has stated that Bhupinder Singh, Harcharan Singh were armed with a sword. It is not clear in the FIR Ex.PE as to whether Balwinder Singh or Harcharan Singh was armed with a sword as further he has stated that others were empty handed. The alleged sword was not used by Harcharan Singh to injure the deceased. The sword was not recovered by Balwinder Singh SI PW6, the Investigating Officer. This shows that appellants Balwinder Singh or Harcharan Singh were not armed with any sword. If they had been, they would have used it to inflict injuries on the deceased but inspite of that, they as per the prosecution story, picked up bricks and threw them on the deceased Rajeev Kumar and on others. If bricks had been thrown by Ramesh Kumar PW3 and Sukhpal Singh PW4, the two alleged eye witnesses to the occurrence, CRIMINAL APPEAL NO. 561-DBA of 2005 8 they would have also been injured, but no injury was found on their person.
Sukhpal Singh PW4 is a natural witness to the occurrence. He was declared hostile by the prosecution. Before he was declared hostile, he has stated, that when they were coming back, they saw Rajeev Kumar coming back from his house on a scooter alongwith a sword. He has further stated that none of the accused present in Court was present on the spot. They did not cause any injury to Rajeev Kumar. He has admitted that on 27.3.2002, he was working as an Announcer in Kohinoor Marriage Palace. Some members of the marriage party, about 5/6 boys asked deceased Rajeev Kumar to play a special cassette, to which Rajeev Kumar said that the cassette was not available. This led to a quarrel between them, but some persons in the gathering separated them.
Third witness Paramjit Singh PW5 of the prosecution qua the extra judicial confession of accused Harcharan Singh, also turned hostile. His testimony cannot be believed as he has given both the versions some favourable to appellants and some favourable to the prosecution.
No corroboration is coming to the statement of Ramesh Kumar PW3 and it is very difficult for us to come to a conclusion as to whether appellant Harcharan Singh or Bhupinder Singh @ Rana committed the murder of the deceased. Benefit of doubt is given to appellants Harcharan Singh and Bhupinder Singh @ Rana.
Harcharan Singh and Balwinder Singh are acquitted of all the charges framed against them. Criminal Appeal No.1874-SB of 2004 and Criminal Appeal No. 1667-SB of 2004 are allowed.
Criminal Appeal No.561-DBA of 2005 filed by State against Bhupinder Singh @ Rana is dismissed.
CRIMINAL APPEAL NO. 561-DBA of 2005 9
As Balwinder Singh has died, Criminal Appeal against him vide No.591-DBA of 2005 has abated.
Criminal Revision No.832 of 2005 filed by the complainant is also dismissed.
We do not want to pass any comments on the acquittal of Manpreet Singh by the learned trial Court as his appeal is not before us.
( MEHTAB S. GILL )
JUDGE
09.11.2009 ( RAM CHAND GUPTA)
mamta JUDGE
WHETHER TO BE REFERRED TO REPORTER? YES/NO