Punjab-Haryana High Court
Sukhbir Singh And Others vs State Of Punjab on 3 December, 2013
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Crl. Appeal No.630-DB of 2006
Date of Decision:03.12.2013
Sukhbir Singh and others ....Appellants
Vs.
State of Punjab .....Respondent
CORAM:- HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MS. JUSTICE NAVITA SINGH
Present:- Mr. J.S. Gill, Advocate for the appellants.
Mr. P.P.S. Thethi, Addl. Advocate General, Punjab.
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NAVITA SINGH, J.
The present appeal arises out of judgment and order of sentence dated 6.4.2005. All the appellants were convicted for the offence punishable under Section 302 of Indian Penal Code (hereinafter referred as IPC) read with Section 34 IPC and each of them was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.3,000/- and in default of payment of fine, the defaulter was to undergo further rigorous imprisonment for three months. They were further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- and in default, the defaulter was to undergo further rigorous imprisonment for one month under Section 325 IPC read with Section 34 IPC. Sukhbir Singh was also sentenced to undergo rigorous imprisonment for two months under Section 336 IPC and rigorous imprisonment for six months under Section 27 of Arms Act. It was ordered that substantive sentences were to run concurrently.
Renu2014.02.11 12:29 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.630-DB of 2006 -2-
The present case was registered on 29.8.2001 on the basis of statement of Jarnail Singh son of Phuman Singh, who informed that on the same day, he along with his brother Surjit Singh and one Hardial Singh son of Sakattar Singh, was going to their Behak at about 10:00 p.m. and when they reached near the behak of Swaran Singh son of Gurdip Singh, they saw Kulwinder Singh armed with .32 bore revolver, Sukhbir Singh (Appellant No.1) armed with 315 bore rifle, Gurwinder Singh armed with 12 bore gun, Tejbir Singh (Appellant No.2) and Rajbir Singh both armed with kirpans and Amardeep Singh (Appellant No.3) armed with gandasi standing there. Kulwinder Singh raised a lalkara that Jarnail Singh and others should not be spared as they helped Bohar Singh against the assailants. Kulwinder Singh, Sukhbir Singh and Gurwinder Singh fired one shot each from their respective weapons. Tejbir Singh and Rajbir Singh attacked Surjit Singh and injured him. When Hardial Singh tried to intervene, all the assailants gave injuries to him also. Surjit Singh fell down and died at the spot. The assailants lifted his body and took it to the behak of Kulwinder Singh. Out of fear, the complainant and Hardial Singh ran away. Motive was that Bohar Singh son of Bakshish Singh had a dispute with Kulwinder Singh over use of water course and complainant and his brother Surjit Singh had helped Bohar Singh.
On the information given by Jarnail Singh, formal FIR was registered and the police conducted spot investigation from where blood stained earth, one empty cartridge of 12 bore weapon and one empty cartridge of 315 bore weapon were taken into possession. One pair of chapal was lying there, which was also taken into possession. During Renu 2014.02.11 12:29 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.630-DB of 2006 -3- further investigation, gandasi was recovered from Amardeep Singh, kirpan from Rajbir Singh. Sukhbir Singh got recovered the firearm used by him, after making disclosure statement. The police arrested accused Kulwinder Singh. After completion of investigation, charge-sheet was filed against all the above said persons.
Charge was framed against the appellants, who pleaded not guilty. The prosecution examined 11 witnesses, namely, Manjit Singh, Rishi Ram, Head Constable Hira Singh, Vikram Singh, Kuldip Singh, Dr. Gurkartar Singh, Jarnail Singh, Gurdev Singh, Hardial Singh, Sukhraj Singh and Sub Inspector Piara Singh as PW1 to PW11. In the statements of the accused recorded under Section 313 of the Code of Criminal Procedure (for short, Cr.P.C), they stated that they had been falsely implicated. Accused Sukhbir Singh took a defence that he was present in the fields with his brother Tejbir, when their servant Gurdev Masih was stopped by Surjit Singh and Bohar Singh from taking turn of canal water due to which there was a dispute between the parties. Rather Surjit Singh, Bohar Singh and others attacked and injured Sukhbir Singh and Tejbir Singh. They were followed by Surjit Singh and Bohar Singh to their house and were further injured. They attacked the said two persons in self defence and Gurdev Masih also caused injuries to Surjit Singh. The story about murder of Surjit Singh was later on concocted by the police. The other accused, however, did not take any specific defence. As many as three witnesses were examined in defence, whose names are Dr. Naresh Kumar, Dr. Ashwani Kumar Ahuja and Dr. Raman Gupta (DW1 to DW3).
Learned counsel for the appellants first of all argued that no Renu 2014.02.11 12:29 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.630-DB of 2006 -4- empty cartridge of 315 bore could have been recovered from the spot because the empty does not come out unless the weapon is reloaded. In the present case, there is no such evidence because if the weapon had been reloaded, there would have been a second shot fired from the same. The case of the prosecution is that only one shot was fired and as such, the empty was planted by the police. This argument, however, is devoid of force because the evidence was required to be produced only if a second shot had been fired. The situation could be that the assailant, i.e. appellant - Sukhbir Singh reloaded the weapon but decided not to fire the second shot.
Learned counsel for the appellants then argued that the story regarding the appellants having carried the body of the deceased to their behak is not convincing firstly because there was no need for them to have carried the body from the place of occurrence and secondly, because there was no trail of blood on the way. He contended that this was done only to show that the incident occurred at the place alleged by the prosecution whereas the body was actually found at a different place. He then contended that Surjit Singh was found lying at the place where the body was recovered because the defence version is that the complainant party had attacked the appellants Tejbir and Sukhbir because the former were siding with Bohar Singh, who was in dispute with the accused. The complainant party attacked Sukhbir Singh and Tejbir Singh who are brothers and they inter-se, acted in self defence and so did Gurdev Masih, who was present with them at the relevant time. It was also contended that if it be taken that Sukhbir Singh exceeded the right of private defence then he can be guilty of culpable homicide not amounting to murder. The defence side, however, Renu 2014.02.11 12:29 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.630-DB of 2006 -5- could not explain as to what grave danger of bodily injury, appellant Sukhbir Singh apprehended at the hands of the deceased so as to cause his death in self defence. The right of private defence does not extend to the extent of inflicting more harm that is necessary for the purpose of defence.
It is also totally unexplained by the appellants as to how Bohar Singh was present with the complainant. Sukhbir Singh in his statement under Section 313 Cr.P.C said that Surjit Singh and Bohar Singh had attacked him and his brother Tejbir Singh. Some other persons were shifted to their companions but they were not harmed.
Learned counsel for the appellants argued that the injuries on the person of the assailants were not at all explained by the prosecution which made their case doubtful and that of the appellants more believable. He referred to the statement of Dr. Raman Gupta (DW3), who proved that there were 11 injuries on the person of Tejbir Singh and 4 injuries on the person of Sukbir Singh. However, those injuries were of very small dimension and it is not the case of the defence that any of the assailants was armed with a fire-arm so as to cause the injuries No.1 to 6 on the person of Tejbir Singh. In the cross-examination, the doctor stated that kind of weapon used was not mentioned by him nor the distance from which the said injuries could have been caused. He said that the injured was not taken to him by the police for examination. Regarding the other injuries of Tejbir, he said that those could be by friendly hand and by a fall. Even injury No.1 which was purportedly caused by fire-arm, was stated by the doctor that it could have been caused by friendly hand because he could not rule out the possibility. He even said that possibility of the injuries having been self Renu 2014.02.11 12:29 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.630-DB of 2006 -6- suffered could not be ruled out. Even Sukhbir Singh had a small laceration and a couple of bruises which could have occurred in someway other than an assault. It was also so stated by the doctor. The story of private defence is thus not believable.
Another strong factor compelling us to form an opinion against the theory of self defence is that only Tejbir Singh - appellant, took a plea to that effect showing the presence of Gurdev Masih with them and Bohar Singh with deceased, while the other accused persons did not take any such defence. Appellant Sukhbir Singh stated that his brother Tejbir Singh was present with him at that time whereas the latter took no such plea and simply stated that the case was false. The presence of Gurdev Masih was introduced for the first time by appellant - Sukhbir Singh in his statement under Section 313 Cr.P.C and for reasons best known to the appellants, Gurdev Masih was not examined in defence. In the cross-examination of the main witnesses, i.e., Jarnail Singh (PW7) and Hardial Singh (PW9), no such defence was taken. It was only suggested that Tejbir Singh and Sukhbir Singh had injured the deceased in self defence and their servant also caused injuries for that reason, but the servant was not named at any place. The name was thus introduced at later stage as an afterthought.
Learned counsel for the appellants then argued that the appellants had contacted the police and had intended to get a case registered against the complainant party, who was the aggressor but the police did not take any action and rather waited till the matter was reported by Jarnail Singh on account of the death of Surjit Singh. However, nothing was explained as to why a private complaint was not filed if the police had not Renu 2014.02.11 12:29 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.630-DB of 2006 -7- taken any action.
Learned counsel for the appellants further argued that the motive was very weak because nothing was shown that there was such dispute of the appellants with Bohar Singh that they would have killed Surjit Singh and harmed Hardial Singh simply because the complainant party had helped Bohar Singh in that dispute. This argument will fall flat on the ground from the case of the defence itself Sukhbir Singh, in his statement under Section 313 Cr.P.C himself disclosed that motive though he tried to bring the things the other way round in an effort to show that the complainant party had attacked him because Bohar Singh was his enemy and the complainant and his brother were with said Bohar Singh. Appellant Sukhbir Singh, therefore, himself admitted that there was a dispute of water course with Bohar Singh and that the complainant party had helped the latter. He, thus, himself made the motive obvious. There is no evidence of the defence as to which of the persons in the complainant party was armed with a firearm so as to cause a gun shot injury to Tejbir Singh. Also it was to be proved that Surjit Singh was carrying a firearm and caused injury to Tejbir Singh so that apprehending danger to his life, the said appellant acted in self defence and killed Surjit Singh. There is no such evidence at all. By taking the plea of self defence, the appellants got shifted the onus on them and miserably failed in discharging it as per law.
Learned counsel appearing for the State argued that the appellants had no way out and had rather given serious blow to their case and had not taken any proper defence. They introduced some defence as an afterthought which was not proved. They were caught in their own net and Renu 2014.02.11 12:29 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.630-DB of 2006 -8- were now just making futile attempt to get out of the same. From the entire evidence and material on record, this argument of learned counsel for the State gets justified for the reasons discussed above.
There is no infirmity in the judgment of conviction delivered by the trial Court and the order of sentence passed against the appellants. The appeal is dismissed.
( NAVITA SINGH )
JUDGE
December 03, 2013 ( S.S. SARON )
renu JUDGE
Whether to be referred to the Reporter? Yes.
Renu
2014.02.11 12:29
I attest to the accuracy and
integrity of this document
Chandigarh