Punjab-Haryana High Court
Rupinder Singh @ Pinda Son Of Onkar Singh ... vs State Of Punjab on 10 October, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA No. D-406-DB of 2006 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No. D-406-DB of 2006
Date of decision: October 10, 2013
1. Rupinder Singh @ Pinda son of Onkar Singh r/o Jandu Sangha,
District Jalandhar.
2. Harjinder Singh @ Jinder son of Harbhajan Singh r/o Talwandi
Araiyan, District Jalandhar.
3. Kuldip Singh @ Deepa son of Jagir Singh r/o Jandu Sangha,
District Jalandhar
.................Appellants
versus
State of Punjab
.............Respondent.
CRA No. D-252-DB of 2006 Date of decision: October 10, 2013 Kuldip Singh @ Deepu son of Jagir Singh r/o Jandu Sangha, District Jalandhar .................Appellant versus State of Punjab .............Respondent.
Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 2- CORAM: HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present:- Mr. Deepak Sabherwal, Advocate for the appellants.
Mr. Tarundeep Kumar, Advocate (Legal Aid Counsel) for the appellant-Kuldeep Singh. Mr. PPS Thethi, Additional Advocate General, Punjab. S.P. BANGARH, J This order will dispose of CRA No. D-406-DB of 2006 filed by Rupinder Singh @ Pinda, Harjinder Singh @ Jinder and Kuldip Singh @ Deepu and also CRA No. D-252-DB of 2006 filed by Kuldip Singh, as both the appeals emanate from the common judgment of conviction dated 12.01.2006 and order of sentence dated 16.01.2006.
The case of the prosecution is that Tarsem Singh (complainant) father of Rajveer Singh (now deceased) is a resident of village Mauli and an agriculturist by occupation. Rajveer Singh @ Sonu (deceased) aged about 18/19 years was working with Sonu @ Dali son of Bahadur Singh, Carpenter of village Mauli. The said Sonu @ Dali used to take wood work on contract. At the relevant time, Sonu @ Dali (supra) was having his wood work contract at Phagwara. Rajveer Singh (deceased) after finishing his work, used to go to weight lifting centre, at village Nangal for doing exercise. As per routine, on 16.12.2004, Rajveer Singh (deceased) after doing exercise in the weight lifting centre (supra) was going on his bicycle to village Mauli and he met his father on the way. Rajveer Singh Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 3- (deceased) asked Tarsem Singh (complainant) to accompany him, but he (Tarsem Singh-complainant) told him that he should go and he (complainant) would come after him on foot. In the meanwhile, three boys of mild height, came on a scooter. When they reached near Rajveer Singh, they took the scooter in front of him and intercepted him. One of those boys was armed with sword and the other was armed with gandasi and the third was having a datar in his hand. They started causing injuries on the person of Rajveer Singh (deceased).
Tarsem Singh (complainant) saw them causing injuries to the deceased (Rajveer Singh) in the torch light. They threatened the complainant (Tarsem Singh) with dire consequences. Rajveer Singh (deceased) after receipt of injuries fell down. Tarsem Singh (complainant) raised alarm of being 'killed'. Thereafter, the aforesaid three boys, started on their scooter towards Tarsem Singh (complainant), who ran away towards the fields to save his life. Later, those boys went towards village Nangal on the scooter. When Tarsem Singh (complainant) reached near the place, where Rajveer Singh (deceased) had fallen, he was found drenched with blood. He was, however, alive at that time. Tarsem Singh (complainant) then rushed to his village and raised alarm and Baljit Singh, his other son, and persons from the village collected there. They arranged a vehicle and took Rajveer Singh (deceased) to GEE BEE Private Hospital, Banga Road, Phagwara. Since the condition of Rajveer Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 4- Singh (deceased) was precarious, he was advised to be taken to some good hospital at Jalandhar by the doctor there. Later, Rajveer Singh (deceased) was taken to Paruthi Hospital, Jalandhar, where he was admitted for medical treatment. During night, Tarsem Singh (complainant) and his son, remained present in Paruthi Hospital, Jalandhar for getting provided best medical treatment to Rajveer Singh (deceased) in order to save his life.
On 17.12.2004, SI Mohan Singh of Police Station, Sadar, Phagwara was present on the main road, Bus Stop Sapror, in connection with patrol duty, where, Tarsem Singh (complainant) and Chaman Lal, Sarpanch met him. Tarsem Singh (complainant) made his statement, (Ex.PM) before SI Mohan Singh, that was read over and explained to him and after admitting the genuineness and correctness, thereof, he thumb marked the same and endorsement Ex.PM/1 was made, thereon, by SI Mohan Singh, who later sent the statement of Tarsem Singh (complainant) to the Police Station, through Constable Jaswant Singh for the registration of case and on the basis of that statement (Ex.PM), formal FIR (Ex.PM/2) was recorded by ASI Baldev Singh under Sections 325, 326, 307/34 IPC, who also sent special report (Ex.PM/2) to the Illaqa Magistrate.
Thereafter, SI Mohan Singh alongwith Tarsem Singh (complainant) and Chaman Lal, Sarpanch of village Mauli, went to the place of occurrence. SI Mohan Singh prepared site plan (Ex.PGG) with correct marginal notes. Blood stained earth was lifted from the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 5- spot, that was converted into a parcel, which was sealed with the seal bearing impression 'MS' and was seized vide memo (Ex.PEE), that was attested by Tarsem Singh (complainant) and Balwinder Rai. A bicycle make Hero, black colour, was also lifted from the place of occurrence and was seized vide memo (Ex.PFF) by SI Mohan Singh. That memo was also attested by Tarsem Singh and Balwant Rai. SI Mohan Singh also recorded the statements of witnesses and also summoned the finger prints expert at the place of occurrence, who did not seize any article from the place of occurrence. Dog squad was also pressed into service, but no progress could be made in the investigation. Thereafter, SI Mohan Singh went to Paruthi Hospital, Jalandhar, where Rajveer Singh @ Sonu (deceased/injured) was found present there. SI Mohan Singh moved application (Ex.PF/1) on 17.12.2004, before the doctor of Baba Budha Sahib Cardiac Centre, Ltd., Paruthi Hospital, Jalandhar to seek his opinion, as to whether Rajveer Singh (deceased) was fit to make statement. The doctor vide opinion (Ex.PF), declared Rajveer Singh (deceased) unfit to make statement.
On 18.12.2004, a message was received from Civil Hospital, Jalandhar in Police Station Sadar, Phagwara, that Rajveer Singh-injured had died. Thereupon, offence under Section 302 was added in the case by SI Mohan Singh, who made a report in this regard in the DDR, copy, whereof, is Ex.PHH. Thereafter, SI Mohan Singh along with HC Balwinder Singh went to Civil Hospital, Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 6- Jalandhar, where the corpse of Rajveer Singh (deceased) was found lying in the mortuary of that hospital. SI Mohan Singh prepared inquest report (Ex.PCC) on the corpse of Rajveer Singh (deceased), that was identified by Chaman Lal (Sarpanch) and Mohinder Singh. Doctor at Civil Hospital, Jalandhar told SI Mohan Singh that the autopsy on the corpse of Rajveer Singh (deceased) be got conducted at Civil Hospital, Phagwara. Later, the corpse of Rajveer Singh (deceased) was brought to Civil Hospital, Phagwara by SI Mohan Singh and HC Balwinder Singh. An application (Ex.PLL) was moved before the doctor at Civil Hospital, Phagwara for getting conducted autopsy on the corpse of Rajveer Singh (deceased). After the post mortem examination on the corpse of Rajveer Singh (deceased), the same was handed over to the police by the doctor alongwith one trouser, one underwear and one jersy of the deceased (Rajveer Singh). These clothes were converted into a parcel by SI Mohan Singh, who sealed that parcel with his seal bearing impression 'MS' and that parcel was seized vide memo (Ex.PMM). On return to the police station, the case property was deposited with MHC.
On 18.12.2004, when SI Lehmber Singh was posted as SHO, Police Station Sadar, Phagwara, he went to the katcha passage from Nangal to Mauli in the area of village Mauli, that was the place of occurrence. He verified the investigation, that was conducted by SI Mohan Singh of Police Station Sadar, Phagwara. On 19.12.2004, SI Lehmber Singh was entrusted with the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 7- investigation of this case. He went to village Mauli on that day in connection with the investigation of this case. When he reached the railway crossing of village Mauli, Baljit Singh @ Ghug brother of the deceased (Rajveer Singh) met him, whose statement was recorded. He then added offence under Section 392 IPC, on the basis of statement of Baljit Singh @ Ghug. It was found that mobile phone number of the deceased (Rajveer Singh) was 9814395084, that had been snatched by some unknown persons at that time.
On 20.12.2004, SI Lehmber Singh met the SSP and got issued a letter to the Additional Director General of Police, Intelligence, Punjab, Chandigarh. On 21.12.2004, ASI Baldev Singh was sent to the office of the Additional Director General of Police with the aforesaid letter. On 21.12.2004, SI Lehmber Singh alongwith other police officials was going to village Mauli in connection with the investigation of this case and when they reached near Dera on katcha passage, Amarjit Singh son of Shiv Singh, Jat, resident of Village Mauli met them, who made his statement, before SI Lehmber Singh, that was recorded. On the basis of his statement scooter No. PB-08-Q-3445, make Bajaj Chetak, was found to have been ridden by Rupinder Singh @ Pinda (appellant No.1). It was found that Rupinder Singh @ Pinda (appellant No.1) was the daughter's son of Pritam Singh @ Pritu, resident of village Mauli. He was nominated as an accused in the case. Raid was conducted at the house of Pritam Singh for the arrest of Rupinder Singh @ Pinda (appellant No.1), but Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 8- he was not found present there. Thereafter, the police came to know that Rupinder Singh @ Pinda (appellant No.1) is a resident of Village Jandu Sanga, District Jalandhar, therefore, the house of Rupinder Singh @ Pinda (appellant No.1) at Village Jandu Sanga was raided . He was not found present there. His mother was, however, present there.
On 22.12.2004, the houses of the relatives of Rupinder Singh @ Pinda (appellant No.1) were raided at various places, but he was not found present there. On 29.12.2004, details of mobile phone No. 9814395084, that was produced by Gurdial Singh MHC were taken into possession by SI Lehmber Singh vide memo (Ex.PJJ), that was attested by HC Balwinder Rai. On 30.12.2004, on going through the incoming and outgoing calls of the aforesaid mobile number, it was found that on 17.12.2004, a telephone call was made from the said mobile phone, to the landline phone number 0181-2700968. Another call was found to have been made from the said mobile to mobile phone No. 94174-42092. The land line phone No. 0181- 2700968 was of Karamjit Singh son of Sohan Singh, resident of village Jandu Sanga. The landline phone No. 0181-3028792 was found to be of Mohinder Pal son of Jit Ram, resident of Village Desian, Police Station, Adampur, District Jalandhar, while mobile phone No. 94174-42092 was found to be of Sukhdev Singh son of Tehal Singh, resident of village Kapur Pind, Police Station Adampur, Jalandhar.
Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 9- SI Lehmber Singh alongwith other police officials reached at the shop of Karamjit Singh, in connection with the investigation of this case. He was joined in the investigation of this case. He told that earlier he was having STD and had been running the business of TV. He also told that he had employed Manjit Singh and Arvind Kapoor, as his employees. Those employees were also joined in the investigation, and interrogated. During the course of interrogation, it was found that from mobile phone No. 9814395084, a telephone call had been made by Rupinder Singh @ Pinda (appellant No.1) at landline phone No. 0181-2700768. The statements of these witnesses were recorded. Raid was conducted at the STD of Mohinder Pal (supra). He was found present and joined in the investigation. His statement was also recorded.
During the course of investigation, all the appellants were nominated as accused in this case. The police went to village Talwandi Ariyan and searched the accused/appellants, but they were not found present there. On the same day, the police party reached village Kapur Pind, where Sukhdev Singh son of Tehal Singh met them in his house. He was joined in the investigation of this case and his statement was recorded. He produced a receipt (Ex.PQ), regarding the driving licence, that was pasted on a paper, which was seized vide memo (Ex.PKK), that was attested by HC Suminder Singh. Raid was conducted at the house of Harjinder Singh @ Jinder (appellant No.2), who was nominated as accused on the basis of Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 10- statement of Mohinder Singh, but he was not found present in his house. Thereafter, the police party reached village Jandu Sangha, and raided the house of Kuldip Singh @ Deepa (appellant No.3), who was nominated as accused on the basis of the statement of Sukhdev Singh. He, too, was not found present.
On 05.01.2005, SI Lehmber Singh was present in the Police Station, alongwith ASI Baldev Singh and other police officials. Piara Singh, Ex-Sarpanch of Village Mauli, came to the police station. He took SI Lehmber Singh to a side and told him that Rupinder Singh @ Pinda (appellant No.1), Harjinder Singh @ Jinda (appellant No.2) and Kuldip Singh @ Deepa (appellant No.3) were with him. He then produced all the appellants/accused before SI Lehmber Singh on 05.01.2005, in Police Station Sadar, Phagwara. In the first instance, the accused/appellants were interrogated by SI Lehmber Singh. Rupinder Singh @ Pinda (appellant No.1), Harjinder Singh (appellant No.2) and Kuldip Singh @ Deepa (appellant No.3) were arrested vide memos Ex.PBB, Ex.PBB/1 and Ex.PBB/2 respectively. On personal search of Rupinder Singh @ Pinda (appellant No.1), `50 were recovered, that were seized vide memo Ex.PBB/3. On personal search of Kuldip Singh @ Deepa (appellant No.3), `20 were recovered, that were seized vide memo Ex.PBB/4. On personal search of Harjinder Singh @ Jinda (appellant No.2), `30 were recovered, that were seized vide memo Ex.PBB/5. These memos were attested by Piara Singh and ASI Baldev Singh. SI Lehmber Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 11- Singh, later lodged the appellants in police lock up and deposited the case property with MHC.
On 06.01.2005, the appellants were taken out of the police lock up in the presence of ASI Baldev Singh for interrogation. Baljit Singh @ Ghug, brother of the deceased, came to police station, who was joined in the investigation of the case. In the first instance, Rupinder Singh @ Pinda (appellant No.1) was interrogated. He disclosed that he had concealed a scooter in a room of his house at village Jandu Sangha by covering the same with a cloth and the key, thereof, was kept in the showcase in that room on the backside of the scooter. He also disclosed that he had kept concealed a handle of the water hand pump under the mat of the scooter (supra). He also disclosed that he had kept concealed a mobile phone in the clothes on a bed in a room of his house at village Jandu Sangha. He further disclosed that these things are within his knowledge and he could get those recovered by pointing out. His statement (Exhibit PU), in this regard, was reduced into writing, that was signed by him and attested by Baljit Singh and ASI Baldev Singh.
Thereafter, Kuldip Singh @ Deepa (appellant No.3) was interrogated, who disclosed during interrogation that he had kept concealed a wrist watch in a trunk lying in his room in village Jandu Sangha and he had also kept concealed key of that trunk in the said room under the pillow lying on a cot and he only knew about this and could get those recovered by pointing out. His disclosure statement Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 12- (Exhibit PV) was recorded.
Thereafter Harjinder Singh @ Jinder (appellant No.2) was interrogated by SI Lehmber Singh, who disclosed that he had kept concealed one spade (kahi) in the cattle shed of his house in the area of village Talwandi Ariyan. He also disclosed that he had kept concealed a purse containing `400/-, one electricity bill and group photo of the family of the deceased in a separate room of the residential house and the key of that room had been kept concealed and he could get those recovered. His disclosure statement (Exhibit PW) was reduced into writing, that was signed by him and attested by the aforementioned witnesses.
On the same day, the appellants/accused were produced before the Court of Tehsildar in muffled faces for holding the identification parade. Their statements (Exhibit PB, PB/1 and PB/2, respectively) were recorded on the dictation of the Tehsildar. The appellants signed their respective statements, wherein, they stated that they did not want to participate in the identification parade.
On 07.01.2005, when the appellants were on police remand and detained in police lock up in Police Station Sadar, Phagwara, they were taken out of the same and interrogated by SI Lehmber Singh. They confirmed the disclosure statements made by them on 06.01.2005. Rupinder Singh @ Pinda (appellant No.1) then took the police party to the place of concealment and got recovered the keys of scooter No. PB-08-Q-3445. He also got recovered the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 13- handle of water hand pump that was cut from both the sides. Rough sketch (Exhibit PX/1) of the handle was prepared. He also got recovered from underneath the clothes, from a bed in the residential room of his house, one mobile phone, make Alka-Tel, bearing No. 98143-95084. Scooter (Exhibit P-13), iron handle (Exhibit P-5) and mobile phone (Exhibit P-4) that were seized vide memo (Exhibit PX) which was attested by Baldev Singh ASI and Baljit Singh (PW). Site plan (Ex.PX/2) of the place of recovery was also prepared.
Thereafter, Kuldip Singh @ Deepa (appellant No. 3) led the police party to the place of concealment of articles and got recovered the wrist watch (Exhibit P-3) that was seized vide memo (Exhibit PY) which was attested by the aforesaid witnesses. Site plan (Exhibit PY/1) of the place of recovery was also prepared.
Thereafter, Harjinder Singh @ Jinda (appellant No.2) led the police party to the place of concealment of the articles and got recovered a purse containing `400/-, one electricity bill issued in the name of the complainant, one photograph of Rajveer Singh (deceased) and his family members. He also got recovered a wooden haft of spade (kahi) Exhibit P-6. Rough sketch (Exhibit PZ/1) of the haft was prepared. Purse (Exhibit P-7), currency notes (Exhibit P8 to P11), electricity bill (Exhibit P12), joint photograph of the deceased and his family members (Mark-A) were seized vide recovery memo (Exhibit PZ) that was attested by the aforementioned witnesses. Site Plan (Exhibit PKK) of the place of recovery of the articles (supra) was Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 14- also prepared. Baljit Singh, brother of the deceased, who was present with the police party, identified the mobile phone, purse and wrist watch as that of the deceased and the electricity bill as that of his father Tarsem Singh. He also identified the joint photograph of Rajveer Singh (deceased) and his family members. Identification memo (Exhibit PAA) was also prepared that was attested by Baljit Singh and Baldev Singh ASI. Statements of the witnesses were also recorded by the Investigating Officer. On arrival at the police station, he deposited the case property with Gurdial Singh MHC. The appellants were detained in the police lock up.
On 17.01.2005, Lehmber Singh SI got prepared scaled map of the place of occurrence from Jugraj Singh, Patwari. On 17.01.2005, Baljit Singh resident of village Mauli, came to police station. He produced bill (Exhibit PJ) regarding the wrist watch. He also produced bill regarding the mobile phone (Exhbit Pk) and receipt (Exhibit PL). These were seized vide memo (Exhibit PJJ).
After completion of investigation, SHO of Police Station Sadar, Phagwara, instituted police report in terms of Section 173 Cr.P.C against the appellants before the learned Illaqa Magistrate to the effect that it appeared that they had committed offences punishable under Sections 302/392/341 read with Section 34 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the appellants by the learned Illaqa Magistrate, who later committed the case to the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 15- Court of Session, that was assigned by the learned Sessions Judge, Kapurthala to self who framed charge under Section 302 read with 34 IPC against all the appellants, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined, as many as, 23 witnesses, who deposed as under :-
PW-1 Jagraj Singh, Patwari, prepared scaled site plan (Ex. PA) of the place of incident.
PW-2 Chanchal Sharma, Reader to Tehsildar, proved the statements of the appellants (Ex.PB, Ex.PB/1 and Ex.PB/2, respectively) that were recorded by H.S. Dhaliwal, the then Tehsildar, Phagwara, before whom the appellants were produced with muffled faces for arranging identification parade, but they refused to participate in the identification parade.
PW-3 Dr.(Brig.) N.K. Saha conducted C.T.Scan of Rajveer Singh (deceased) on 16.12.2004 at night and found that he was having bilateral sub dural haematoma with fracture on parietal bone of the skull.
PW-4 Dr.Gulzar Singh Virdi, conducted the postmortem on the corpse of Rajveer Singh (deceased) on 18.12.2004. According to him, the deceased was aged about 19 years who was wearing grey jarsi, light green pyjama, white vest and Ek Om Kar was Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 16- tattooed on the back of his right hand. He found following injuries on his person :-
1. 2"long incised wound was present, on the head behind left ear. Clotted blood was present. On exposing underlying bone was fractured. Underlying brain meninges were torn, brain matter was lacerated.
Subdural haematoma was present.
2. ½" long incised wound on the back of skull 2" above the fairline. Underlying bone was fractured. Meninges were blood stained and torn at this place. Brain matter was lacerated.
3. 3" long and ½ " wide reddish bruise was present on the left temporo-frontal region.
4. Bleeding from left ear was present and clotted blood was also present.
Probable duration between the injuries and death was within 24 hours and between the death and postmortem was within 12 hours.
He further testified that as per his opinion, the cause of death was cramiocerabral injury (head injury) leading to intracranial haemorrhage and damage to brain tissue which led to shock and death. According him, all the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. He proved carbon copy of the autopsy report (Ex.PD) and (Ex. PD/1) pictorial diagram showing the seats of injuries. He further deposed that clothes stained with blood were removed from the corpse of deceased (Rajveer Singh).
Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 17- PW-5 Dr. Ravinder Pal Singh Chabbra found lacerated wound on left ear and on scalp of Rajveer Singh (deceased).
PW-6 Dr. Gurbachan Singh also testified that at about 8.30 P.M. on 16.12.2004, Rajveer Singh (deceased) was brought to the hospital, who was having injuries on the pinna and parietal region and other injuries on the occipital region. He testified that Rajveer Singh (deceased) was referred to Mohan C.T. Scan Centre, Phagwara and from the C.T. Scan report, it was found that there was extra dural haematoma. He also testified that since the condition of Rajveer Singh (deceased) was serious, he was referred to Jalandhar.
PW-7 Jaswant Singh proved the signatures on Ex.PJ guarantee card of Konica watch Ex.P3.
PW-8 Sandeep Singh proved bill (Ex.PK) of mobile phone make Alka-Tel (Ex.P4). He further deposed that he sold the said mobile phone to Rajveer Singh (deceased) for a sum of Rs.3000/-.
PW-9 Amarjit Singh saw the appellants on a scooter on 16.12.2004 at about 7.45 PM on a road from Mauli to Nangal, in the light of the electric bulb, while carrying iron handle of the hand pump and a haft of spade (Kahi).
PW-10 HC Gurbachan Singh testified that on 17.12.2004, he handed over the special report to the Illaqa Magistrate.
PW-11 Taranjit Singh proved the receipt (Ex.PK), that was issued by Manpreet, under his signatures. He further testified that Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 18- mobile phone (Ex.P4) was sold vide aforesaid receipt to Sandeep Singh for a sum of `3300/-.
PW-12 Tarsem Singh, who is complainant of this case, deposed as per his statement (Ex.PM) that has been reproduced in the earlier part of this judgment.
PW-13 Arvind Kumar did not support the prosecution version and was declared hostile to the prosecution and cross- examined by the learned Additional Public Prosecutor for the respondent before the learned trial Court.
PW-14 Sukhdev Singh testified that he has his office at village Kapur Pind, where he fills the forms for the preparation of driving licence. He further testified that he does not know Kuldip Singh @ Deepa (appellant No.3). He was also declared hostile to the prosecution and was cross-examined by the learned Additional Public Prosecutor for the respondent before the learned trial Court.
PW-15 Mohinder Pal deposed that he is the owner of STD having number 3099792. He further testified that near his shop, there is scooter repair shop of Babbal Kumar @ Bablu of Talwandi. He further testified that he does not know Harjinder Singh (appellant No.2) present in Court. This witness was also declared hostile to the prosecution and was cross-examined by the learned Additional Public Prosecutor for the respondent before the learned trial Court.
PW-16 Dr. Prem Nath Datta proved chit (Ex.PS), Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 19- whereby, he sent intimation to SHO, Police Station Sadar, Phagwara regarding the death of Rajveer Singh (deceased). He also proved the bed head ticket (Ex.PT) of Rajveer Singh (deceased).
PW-17 Baljit Singh testified that Rajveer Singh (deceased) was his younger brother, who used to go to Nangal Health Club and before going to the said club, he used to meet him in the factory at village Nangal, where, he (PW-17) is working as driver. He further testified that on 16.12.2004, his brother Rajbir Singh (deceased) met him in the factory at about 8.00 a.m. and, thereafter, he went to Phagwara at his work place and at that time, he was wearing watch, that he had purchased for him on 14.11.2004, for a sum of `2000/-. This witness supported the prosecution version, that has been reproduced in the earlier part of this judgment. He also joined the investigation and deposed on the lines of investigation.
PW-18 Piara Singh deposed that he is Ex-Member of Panchayat of his village Mauli and on 16.12.2004, Rupinder Singh @ Pinda (appellant No.1), Harjinder Singh @ Jinder (appellant No.2) and Kuldip Singh @ Deepa (appellant No.3) present in Court caused injuries to Rajveer Singh (deceased), who was also known to him, as he was residing in his village. He testified that all the appellants, on 05.01.2005 came at his residence in the area of village Mauli and told that they wanted to talk to him in privacy and they had committed mistake and caused injuries on the person of Rajveer Singh (deceased) and produce them before the police. Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 20- PW-19 ASI Baldev Singh, Reader to SP (D), Kapurthala joined the investigation and deposed on the lines of investigation. He deposed that the appellants got recovered the articles, pursuant to their disclosure statements.
PW-20 HC Gurdial Singh testified that on 17.12.2004, a parcel containing blood stained earth, duly sealed with the seal bearing impression 'MS', was deposited with him and on 18.12.2004, one parcel containing clothes, duly sealed with the seal bearing impression 'MS', was deposited with him by SI Mohan Singh. He also testified that both these parcels were sent to the Forensic Science Laboratory, Chandigarh through HC Gurbachan Singh vide road No. 11/21 and after deposit, thereof, the said HC produced before him the receipt regarding deposit of those parcels. He further testified that, so long as these parcels remained in his custody, no one has tampered, therewith.
PW-21 Sabodh Singh brought the call detail record for the period from 25.10.2004 to 29.04.2005 of mobile phone No. 98143- 95084. He testified that as per this call detail record, on 17.12.2004, as many as, 7 outgoing calls were made on this phone, whose details were given in (Ex.PDD). He further testified that the outgoing calls made on 17.12.2004 are shown at point 'A'.
PW-22 SI Mohan Singh conducted the investigation of this case and deposed on the lines of investigation, that have been reproduced in the earlier part of this judgment. Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 21- PW-23 SI Lehmber Singh also conducted the investigation of this case and deposed on the lines of investigation, that have been reproduced in the earlier part of this judgment and need not be reiterated.
After examining aforementioned witnesses, prosecution evidence was closed, after tendering the report of the Forensic Science Laboratory, Punjab, Chandigarh (Ex.POO).
After the closure of prosecution evidence, appellants were examined under Section 313 Cr.P.C., wherein, they denied the allegations of prosecution, pleaded innocence and false implication in this case.
Rupinder Singh @ Pinda (appellant No.1) gave his own version that the present case has been planted upon him, due to party faction in the village. Since he belongs to the party against Tarsem Singh (PW-12), Piara Singh (PW-18)and other persons and due to that reason, they got him involved falsely in the present case.
Harjinder Singh @ Jinder (appellant No.2) also gave his own version that the present case has been planted upon him, due to party faction in the village. Since he belongs to the party against Tarsem Singh (PW-12), Piara Singh (PW-18)and other persons, and due to that reason, they got him involved falsely in the present case.
Kuldip Singh @ Deepa (appellant No.3) gave his own version that due to party faction in the village, he has been falsely Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 22- implicated in the present case by the complainant party.
Appellants were called upon to enter in defence and they examined Nirmal Kapur as DW-1, Darbara Singh as DW-2 and Manohal Lal, Numberdar, as DW-3 and closed the defence evidence.
After hearing both the sides, as also, after going through the evidence and material on record, the learned trial Court vide judgment of conviction dated 12.01.2006, convicted the appellants for commission of an offence punishable under Section 302 read with Section 34 IPC, and vide order of sentence dated 16.01.2006, sentenced them to undergo imprisonment for life each and to pay fine of `2000/- each, and in default of payment of fine, to further undergo rigorous imprisonment for a period of one month each. Aggrieved, thereagainst, the appellants, who were accused before the learned trial Court, have filed CRA No. D-406-DB of 2006 with prayer for acceptance, thereof and for their acquittal of offence for which they were charged by the learned trial Court.
Though CRA No. D-406-DB of 2006 has been filed by all the three appellants, yet Kuldip Singh @ Deepa (appellant) also filed a separate appeal i.e. CRA No. D-252-DB of 2006. However, the case of Kuldip Singh @ Deepa (appellant) shall be considered in CRA No. D-406-DB of 2006 and obviously, CRA No. D-252-DB of 2006 shall be infructuous.
Learned counsel for the appellants contended that the Sunder Sham learned trial Court has not considered the fact that even though there 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 23- was prior information, no independent witness was joined at the time of recovery of alleged articles, pursuant to the disclosure statements of the latter. He also contended that the learned trial Court erred in brushing aside the statements of the appellants, that were made by them during examination in terms of Section 313 Cr.P.C., wherein, they categorically stated that they have been implicated falsely in the case due to party faction in the village. He further contended that the prosecution story on the face of it is highly improbable and untrustworthy.
Learned counsel for the appellants also contended that the learned trial Court has not observed that there was motive or intention behind committing the alleged crime. He further contended that the learned trial Court erred in convicting and sentencing the appellants on the basis of circumstantial evidence. He also contended that there is no eye witness of the case and numerous discrepancies occurred in the statements of the prosecution witnesses. So, the learned counsel for the appellants contended that the statements of the prosecution witnesses are highly contradictory, therefore, the appellants may be held entitled for benefit of doubt and acquitted of the offence punishable under Section 302 read with 34 IPC.
On the other hand, the learned Additional Advocate General, Punjab contended that the learned trial Court rightly convicted the appellants vide impugned judgment of conviction and Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 24- vide impugned order of sentence, sentenced the appellants for commission of offence punishable under Section 302 read with 34 IPC. He, thus, contended that the impugned judgment of conviction and order of sentence may be upheld and affirmed, as these do not suffer from any illegality or impropriety.
We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and perused the record of the learned trial Court with their assistance.
It is no doubt true that no one saw the occurrence. The appellants have not been named as assailants of the deceased. Even, there was no intention of the appellants to commit the murder of Rajveer Singh (deceased). There was no previous enmity between Rajveer Singh (deceased) and the appellants. Even in their extra judicial confessions, before Piara Singh (PW-18), appellants did not state that they committed the murder of Rajveer Singh (deceased). None of the appellants confessed before Piara Singh (PW-18), the commission of murder of Rajveer Singh (deceased) by any of them. Appellants could be held guilty of commission of murder of Rajveer Singh (deceased) only, if they had made extra judicial confession before Piara Singh (PW-18) regarding commission of murder of Rajveer Singh (deceased).
The main evidence of complicity of the appellants in this case is of PW-18 (Piara Singh) before whom extra judicial confession was made by the appellants. Evidence of PW-18 (Piara Singh) would Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 25- reveal that the appellants had no motive to commit the murder of Rajveer Singh (deceased). They had no prior enmity or hostility against him. They are not the residents of village Mauli from where Rajveer Singh (deceased) hailed. Even no witness of the prosecution examined in this case, deposed that the deceased was murdered by the appellants. No witness of the prosecution testified that the appellants had animus or hostility against the deceased to kill him. No witness testified about the motive of the appellants to commit the murder of Rajveer Singh (deceased). The appellants and the deceased were not known to each other prior to the date of incident.
The occurrence had taken place during night time at about 8.00 P.M., when it was dark. From the circumstances, it follows that the deceased was a fitness freak, who used to go to health club in village Nangal. The circumstances suggest that some unknown persons, who indulged in robbing the people in the process of robbing, caused injuries on the person of Rajveer Singh (deceased) and snatched his mobile phone and other belongings from him. Rajveer Singh (deceased), being a young person, might have resisted the attempt of those persons, who wanted to rob him. He was not armed with any weapon while on the other hand, those robbers were armed with weapons. Rajveer Singh (deceased) was defenceless, carrying no weapon. If, he would have been carrying any weapon, in that eventuality, he would have resisted the attempt of those robbers and caused injuries to them. The resistance of the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 26- deceased (Rajveer Singh) shown in robbing him by those robbers would have provoked those robbers to cause injuries to him, which later on proved to be fatal.
The robbers simply wanted to rob the deceased (Rajveer Singh) and when the latter was resisting this attempt of the former, he was injured. If the deceased (Rajveer Singh) had not resisted the robbery attempt, then perhaps he would not have been caused injuries by those robbers. It is thus, a case of culpable homicide. As per Exception 4 of Section 300 IPC; a Culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
As per explanation given in Exception 4 of Section 300 IPC, It is immaterial in such cases which party offers the provocation or commits the first assault.
Evidence of Piara Singh (PW-18) before whom the appellants confessed their guilty of causing injuries to the deceased (Rajveer Singh) is not a sufficient evidence to hold that charge of murder of Rajveer Singh (deceased) against the appellants has been proved. As per evidence of Piara Singh (PW-18), Rajveer Singh (deceased) was not having hostility with any one and the persons who killed him, it is made out from the record, wanted to rob him. So, the learned trial Court wrongly came to the conclusion that the deceased (Rajveer Singh) was murdered, knowing full-well that there Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 27- was no prior enmity between the deceased (Rajveer Singh) and the killers. So, the charge under Section 302 IPC is not proved in this case.
Now the question arises, as to whether the appellants killed the deceased (Rajveer Singh) or not. For this, we have evidence of Piara Singh (PW-18) before whom on 05.01.2005, all the appellants made confessions of their guilt. It has come in the evidence of Piara Singh (PW-18) that Rupinder Singh @ Pinda (appellant No.1), in the first instance, told him that he and Harjinder Singh @ Jinder (appellant No.2) had caused injuries on the person of Rajveer Singh (deceased) and they be produced before the police, as the latter are after them. It has come in the evidence of Piara Singh (PW-18) that all the appellants confessed before him that they had caused injuries to Rajveer Singh (deceased), who on account of those injuries had died. Piara Singh (PW-18) produced all the appellants before the police, they were arrested and statement of Piara Singh (PW-18) was also recorded by the police.
The evidence of Piara Singh (PW-18) during cross- examination could not be shattered. He is a respectable villager and was one time Member of Gram Panchayat of village Mauli. No motive can be ascribed to him to testify falsely in this case. He withstood the test of cross-examination and emerged unscathed, therefrom. There is no reason to disbelieve his testimony and on the basis of his testimony, it can be safely held that the appellants made Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 28- extra judicial confessions of their guilt of causing injuries to the deceased (Rajveer Singh), who later succumbed, thereto.
The Hon'ble Supreme Court of India in R. Kuppusamy v. State represented by Inpsector of Police, Ambeiligai; 2013 (2) RCR (Criminal) 326; held that the Courts cannot start with the presumption that extra judicial confession is always suspect or a weak type of evidence, but it would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak about such a confession and whether the confession is voluntary and truthful. It was further held that if the Court found the witness to whom confession was made to be trustworthy and that the confession was true and voluntary, a conviction can be founded on such evidence alone. It was also held that an extra judicial confession is an admissible piece of evidence capable of supporting the conviction of an accused provided the same is made voluntarily and is otherwise found to be truthful.
In the judgment (supra), the Hon'ble Supreme Court upheld the conviction of the accused on the basis of extra judicial confession. Accused threw his 10 years old daughter in a well who died by drowning. Accused thought that the child was unlucky for the family because there were problems between the accused and his parents. Accused narrated the incident to village Administrative Officer, who took him to Police Station and formal FIR was recorded. Corroboration was found from the medical evidence and testimony of Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 29- mother and grandmother of the deceased. In this case, conviction and sentence were upheld by holding that it is not one of those cases where the confessional statement is made to a person whose credibility is suspected nor is it a case where there is no corroboration forthcoming from other evidence on record.
The judgment (supra) is fully applicable in this case. In the case in hand, the extra judicial confession was made by the appellants before Piara Singh (PW-18), who is Ex-Member of Gram Panchayat of his village. The credibility of Piara Singh (PW-18) cannot be suspected. Apart from that, the evidence of Piara Singh (PW-18) against the appellants is not the only evidence.
The Hon'ble Supreme Court of India in Munna Kumar Upadhyaya @ Munna Upadhyaya v. State of A.P.; 2012 (3) Recent Apex Judgments 185; held that the extra judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it.
Tarsem Singh (PW-12) is the complainant in this case. According to him, on the day of incident, when he was going to his house from fields, his son Rajveer Singh (deceased) met him on his bicycle at about 8.00 p.m. He also testified that all the appellants passed on a scooter by his side at that time. He further deposed that one of the appellant/accused was having an iron handle of the hand Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 30- pump and the other accused was having a haft of spade (Kahi). He further deposed that these persons caused injuries to Rajveer Singh (deceased). He further deposed that he saw the occurrence in the torch light.
It is no doubt true that Tarsem Singh (PW-12) did not disclose the names of the assailants in his statement, that was recorded for the purpose of recording of the FIR. This omission cannot falsify the case against the appellants, as Tarsem Singh (PW-
12) was not expected to know the name of the assailants. PW-9 (Amarjit Singh) also saw all the appellants riding on the scooter on 16.12.2004 at about 7.45 P.M. on the road from village Mauli to village Nangal. At 8.00 P.M. injuries were caused by the assailants on the person of Rajveer Singh (deceased).
PW-3 Dr. (Brig.) N.K. Saha on 16.12.2004 conducted CT scan of Rajveer Singh (deceased) and found bilateral sub dural haematoma, who also found fracture on parietal bone of the skull of Rajbir Singh (deceased). He in candid terms testified that if iron handle of hand pump and haft were struck forcibly on the head, there could be haemorrhage inside the brain.
PW-5 Dr. Ravinder Pal Singh Chabbra also testified that Rajveer Singh (deceased) was brought by his relatives on 16.12.2004 at 11.30 A.M., who was unconscious at that time and had already been incubated, whose CT scan showed large right fronto temporo parietal region. He further deposed that there was lacerated wound Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 31- on the left ear and on scalp of Rajveer Singh (deceased). He also testified that iron handle of the hand pump and haft, which were shown to him in Court, could be used for causing injuries. He further testified that iron handle of the hand pump and haft, that were shown to him in the Court could be the weapons for causing injuries to the deceased (Rajveer Singh).
PW-6 Dr. Gurbachan Singh also testified that at about 8.30 P.M. on 16.12.2004, Rajveer Singh (deceased) was brought to the hospital, who was having injuries on the pinna and parietal region and other injuries on the occipital region. He testified that Rajveer Singh (deceased) was referred to Mohan C.T. Scan Centre, Phagwara and from the C.T. Scan report, it was found that there was extra dural haematoma. He also testified that since the condition of Rajveer Singh (deceased) was serious, he was referred to Jalandhar.
Recoveries of scooter (Ex.P13) whereon, the assailants/ appellants were seen at the time of occurrence, iron handle of the hand pump (Ex.P5), mobile phone (Ex.P4) bearing No. 98143- 95084, belongings to the deceased (Rajveer Singh) were made from Rupinder Singh @ Pinda (appellant No.1). Wrist watch (Ex.P3) belonging to Rajveer Singh (deceased) was got recovered by Kuldip Singh @ Deepa (appellant No.3). Haft used for causing injuries in the incident (Ex.P6), purse (Ex.P7), currency notes (Ex.P8 to P11) belonging to Rajveer Singh (deceased), electricity bill (Ex.P12) belonging to the father of the deceased, joint photograph of the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 32- deceased and his family members (mark 'A') were got recovered by Harjinder Singh @ Jinder (appellant No.2) on 07.01.2005.
Mobile phone, purse, photographs and wrist watch (supra) were identified by Baljit Singh, brother of the deceased, while appearing as PW-17. It was for the appellants to prove, as to how they came in possession of these articles belonging to the deceased. This fact was in the knowledge of the appellants and burden was upon them to explain, as to how they came in possession of these articles.
Section 106 of the Indian Evidence Act, 1872 enshrines that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. So, the extra judicial confession of the appellants before Piara Singh (PW-18) has been corroborated by the recoveries of articles and belongings of the deceased (Rajveer Singh). It is, therefore, established on the record that the appellants snatched these articles and belongings of the deceased after causing him injuries and, therefore, motive was to remove these articles and belongings of the deceased (Rajveer Singh), who, as already noticed, resisted, the fight ensued between him and the appellants and the latter, who were armed with weapons, caused injuries to the former, who succumbed, thereto, later.
The Hon'ble Supreme Court of India in Geejaganda Somaiah v. State of Karnataka; 2007 (2) RCR (Criminal) 255; relied upon the statement of the accused under Section 27 of the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 33- Evidence Act. It was held that the inference can be drawn that accused committed the offence. In this judgment, a day after the occurrence, accused made confessional statement before police leading to recovery of gold ornaments belonging to the deceased, weapon of offence and blood stained clothes and he failed to explain, how these articles came into his possession. Conviction was upheld.
The Hon'ble Supreme Court of India in Manish Dixit and others v. State of Rajasthan; 2000 (4) Crimes 171; also held accused guilty. In this case, three bags of ornaments, which were robbed, were recovered on the basis of information given by the accused. The facts of the case in hand and the facts of the cases of the judgment (Supra) are akin. The appellants got recovered the articles, that were robbed by them from the deceased (Rajveer Singh) and it follows that for the purpose of commission of robbery, the appellants caused injuries to the deceased (Rajveer Singh), who succumbed, thereto, later.
It is no doubt true that Tarsem Singh (PW-12/ complainant) is the father of the deceased (Rajveer Singh) and he saw the incident. Though, at that time, he did not identify the assailants, but when the appellants themselves have confessed their involvement, they could not wriggle out of this situation, especially, when their extra judicial confessions are corroborated by the recoveries of the belongings of the deceased (Rajveer Singh) from them, as also, the weapons, wherewith, they caused injuries to the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 34- deceased (Rajveer Singh).
Even the police verified that the occurrence had taken place at night, though at that time, it was not sure, as to who caused injuries to the deceased (Rajveer Singh). The appellants suffered extra judicial confessions before Piara Singh (PW-18) and that are worth reliance. As already noticed, the involvement of the appellants in this incident has been established beyond shadow of reasonable doubt. As already held, they had no motive to kill the deceased (Rajveer Singh), but they had certainly a motive to rob his belongings and when they caused injuries, they had no intention to cause his death.
The occurrence took place on 16.12.2004 at 8.00 P.M., the FIR in this case was lodged on 17.12.2004 at 12.15 P.M. It may be noticed that Rajveer Singh (deceased) sustained grievous injuries on his person. The first concern of his family member was to save his life and, therefore, the family members got themselves involved in the medical treatment of the deceased (Rajveer Singh), who was first taken to Dr. Gurbachan Singh, GEE BEE Hospital, Banga Road, Phagwara on 16.12.2004 at 8.30 P.M. When PW-6 (Dr. Gurbachan Singh) saw that the condition of Rajveer Singh (deceased) was precarious, he advised that the deceased-injured be taken to a better hospital at Jalandhar. At Jalandhar, Rajveer Singh (deceased) was got admitted in Paruthi Hospital, Jalandhar, where he succumbed to his injuries in the intervening night of 17/18.12.2004. So, due to the Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 35- abovesaid circumstances, FIR could not be lodged pronto after occurrence. The delay has been explained, even this delay did not cause any prejudice to the appellants, as their names do not figure as the assailants of the deceased (Rajveer Singh) The appellants could take benefit of delay in lodging the FIR, if their names had figured in the FIR. According to PW-4 (Dr Gulzar Singh Virdhi), who conducted the autopsy on the corpse of Rajveer Singh (deceased), there were two incised wounds, one reddish bruise and bleeding from left ear. According to Tarsem Singh (PW-12/complainant), the appellants were having iron handle of the hand pump and a haft of the spade. PW-4 (Dr. Gulzar Singh Virdhi) testified that injuries nos. 1 and 2 could not be possible with the iron handle of the hand pump. The learned trial Court rightly held that this testimony of PW-4 (Dr. Gulzar Singh Virdhi) is not worth reliance. In the first instance, Rajveer Singh (deceased) was taken to GEE BEE Hospital, Banga Road, Phagwara and his C.T. Scan was done. PW- 6 (Dr. Gurbachan Singh) found one injury on pinna and parietal region and other injury on the occipital region of the deceased (Rajveer Singh).
PW-3 (Dr. (Brig.) N.K. Saha), who conducted the C.T. Scan of head of the deceased (Rajveer Singh) on 16.12.2004 at night, in candid terms testified that injuries on the person of Rajveer Singh (deceased) could be possible with hard wooden stick and iron handle. Hard wooden stick and a blunt weapon like water pump Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 36- handle could cause incised wound.
PW-5 Dr. Ravinder Pal Singh Chabbra also testified that there were lacerated wounds on the left ear and scalp of the deceased (Rajveer Singh) and those could be possible with iron handle of the hand pump and the hard wooden stick.
So, no reliance can be placed upon the testimony of PW-4 (Dr. Gulzar Singh Virdhi).
It was also held in Piara Singh and others v. State of Punjab; 1977 Criminal Law Journal, 1941 (SC); that when there was conflict between the opinions of medical witnesses, opinion of that expert, which supports direct evidence should be accepted. The principle of law laid down in the aforementioned judgment is fully applicable to the facts and circumstances of the present case. The opinion of Dr. (Brig.) N.K. Saha (PW-3) and Dr. Ravinder Pal Singh Chabbra (PW-5), supports the ocular version of Tarsem Singh (PW-
12) and Amarjit Singh (PW-9) and it follows that the haft and the handle of the water pump that were recovered from the appellants during investigation by the police were used for causing injuries to the deceased (Rajveer Singh), who succumbed, thereto, later.
Defence version is not reliable. DW-1 Nirmal Kaur testified that scooter No. PB-08Q 3445 was in the name of Ranjit Singh son of Pritam Singh, resident of Village Lallian Kalan, Distt. Jalandhar. On this scooter, the appellants went to the place of occurrence and caused injuries on the person of Rajveer Singh (deceased). It is Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 37- immaterial as to who owned this scooter. When once it is proved that the appellants were spotted on scooter No. PB-08 Q 3445 and that was recovered from them, it was for the appellants to explain as to how they came in possession of this scooter No. PB-08 Q 3445, as per provisions of Section 106 of the Indian Evidence Act, 1872.
DW-2 Darbara Singh testified that on 01.01.2005, police came to his village. During the course of examination, it was stated by him that an application was moved before the SSP regarding false implication of the appellants. However, that application or copy, thereof, was not brought on the record. Therefore, the evidence of DW-2 Darbara Singh is not worth credence, who kept silent from 16.12.2004 to 19.11.2005. His silence in this matter must result into rejection of his evidence.
DW-3 Manohar Lal (Numberdar) testified that on 16.12.2004, he went to village Mauli at about noon time. He further testified that at about 8.00 P.M., there was a raula that some quarrel took place near the fields of Akem Singh on the passage. He further testified that Mohinder Singh, brother of Tarsem Singh, alongwith Chaman Lal (Sarpanch) was present there. He further testified that Tarsem Singh was not present. He further testified that one person was lying in an injured condition and a message was sent to Tarsem Singh, father of the injured, who reached the spot. During cross- examination, it was testified by DW-3 Manohar Lal, that he had submitted an application to SHO regarding the facts stated by him in Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 38- his examination-in-chief. However, no such application was produced on the record. If such an application had been moved before the SHO by him, copy thereof, would have been produced by him on the record to prove that version given by him was reliable and genuine. So, his evidence is also not worth credence. His silence in the matter from 16.12.2004 to 13.12.2005 is also intriguing, as if the version would have genuine, he would have acted with alacrity and moved application before the SHO regarding the false implication of the appellants in this case. So, his silence must result in rejection of his version provided by him while appearing as DW-3.
The appellants have been convicted and sentenced for commission of offence punishable under Section 302 read with Section 34 IPC. As already held that the appellants had no motive to kill the deceased, therefore, they have been wrongly held guilty of commission of murder of Rajveer Singh (deceased) by the learned trial Court vide its impugned judgment and order of sentence, that are, hereby, set aside and the appellants ought to be and are, hereby acquitted of the offence punishable under Section 302 read with Section 34 IPC.
The learned trial Court did not frame charge under Section 392 IPC against the appellants. However, from the evidence on record, it is made out that the appellants had a motive to rob the deceased (Rajveer Singh) and in the process of commission of robbery by the appellants, they caused injuries to the deceased Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 39- (Rajveer Singh), who later succumbed, thereto.
Now, it is to be seen, as to whether the appellants can be convicted and sentenced for commission of offence punishable under Section 392 IPC or not, especially, when charge for this offence was not framed against them. The answer shall be yes, as it has been enshrined in sub-section (2) of Section 221 Cr.P.C. that If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
In the case in hand, the appellants have been charged for commission of offence punishable under Section 302 read with Section 34 IPC, during trial on the basis of evidence, that was led by the prosecution. It has come on the record that the appellants in the process of commission of robbery caused injuries to the deceased, who succumbed, thereto, later. The appellants have been acquitted of the offence punishable under Section 302 read with 34 IPC. In view of provision of sub-section (2) of Section 221 Cr.P.C, the appellants can be convicted and sentenced for commission of offence punishable under Section 392 IPC. So, the appellants are held guilty of commission of offence punishable under Section 392 IPC, as it has already been noticed that they had no intention to commit the murder of the deceased (Rajveer Singh) and they only committed robbery Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 40- and robbed the articles of the deceased (Rajveer Singh), and in the process of committing of robbery, they caused injuries to the deceased (Rajveer Singh), who later succumbed, thereto.
Appellants had no intention to kill the deceased (Rajveer Singh), however, when they caused injuries to the deceased, they knew fully well that the deceased (Rajveer Singh) could succumb to those injuries, who eventually succumbed, thereto. Therefore, the appellants are held guilty of commission of offence punishable under Section 304 Part II for committing culpable homicide of Rajveer Singh (deceased) not amounting to murder.
Resultantly, the appellants are acquitted of the offence punishable under Section 302 read with Section 34 IPC, however, they are convicted for commission of offences punishable under Section 304 Part II read with Section 34 IPC and Section 392 IPC. They are sentenced to undergo rigorous imprisonment for 7 years each; besides, to pay a fine of `2000 each; in default of payment of fine, they shall further undergo rigorous imprisonment for one month each, for commission of offences punishable under Section 304 Part II read with Section 34 IPC. The apellants are further sentenced to undergo rigorous imprisonment for 7 years each; besides to pay a fine of `2000/- each; in default of payment of fine, they shall undergo further rigorous imprisonment for one month each, for commission of offence punishable under Section 392 IPC. Both the sentences of imprisonment shall run concurrently. Sentence of imprisonment Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 41- already undergone by them in jail, during investigation, trial and pendency of this appeal, shall be set off from the substantive sentences imposed upon them.
Resultantly, the CRA No. D-406-DB of 2006 is partly allowed; impugned judgment of conviction and order of sentence are set aside and in its place, the appellants are convicted for commission of offences punishable under Section 304 Part II read with Section 34 IPC and Section 392 IPC and sentenced, as mentioned above. CRA No. D-252-DB of 2006 is rendered infructuous and, is dismissed, as such The learned Additional Advocate General, Punjab rightly contended that in terms of Section 357 Cr.P.C, legal representatives of Rajveer Singh (deceased) should be held entitled for compensation against the assailants.
Appellants have been held guilty of commission of culpable homicide not amounting to murder of Rajveer Singh (deceased), therefore, in terms of Section 357 (1) (c) Cr.P.C., the appellants must be held liable for payment of compensation to the legal representatives of the deceased (Rajveer Singh), who at the time of his death was 19 years old unmarried person. He was not trained in any profession, as also, he was not holding any degree or diploma. So. at the most, he can be categorized as a manual labourer, whose monthly income in any circumstance could not transcend `3000/-.
Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 42- Rajveer Singh (deceased) was a bachelor at the time of his death in this incident. He was to marry in future and was to have his family and, in future, the dependency of the legal representatives on the deceased would have lessened, as he was to support his own family. So, the deceased being a bachelor, would have kept 1/2 of his monthly income for his own personal expenses and contributed the remaining monthly income to his legal representatives. In this manner, the legal representatives of Rajveer Singh (deceased) suffered monthly loss of dependency to the extent of `1500/- and annual loss of dependency to the tune of `18,000/-. Keeping in view his age, the appropriate multiplier shall be of 16 and by applying this multiplier of 16, compensation payable to the legal representatives of Rajveer Singh (deceased) shall come to `18,000/- X 16 = `2,88,000/-
Compensation to the tune of `2,88,000/- is awarded to the legal representatives of Rajveer Singh (deceased) against the appellants and the latter shall deposit this amount in the Court of learned Chief Judicial Magistrate, Jalandhar within a period of six months from today in equal share, who shall distribute the said amount amongst the legal representatives of Rajveer Singh (deceased) in equal shares.
The learned Chief Judicial Magistrate, Jalandhar shall take necessary steps for realization of the abovesaid amount from the appellants, as arrears of land revenue from their person, as well as moveable or immovable property, and for this purpose of realization Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA No. D-406-DB of 2006 - 43- of amount of compensation, he can take necessary assistance from the Collector of the District.
(S.S.SARON) (S.P.BANGARH)
JUDGE JUDGE
10.10.2013
sham
1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or? Yes
3. Whether the judgment should be reported in the digest? Yes Sunder Sham 2013.11.07 16:58 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh