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On 1.3.2000, at about 1.00 p.m., Joga Singh, Surjit Singh and Mohinder Singh, uncle of Joga Singh, were coming to their out-house on a tractor after cultivating their land located near river Beas, and when they passed near the tubewell of accused Balwinder Singh, they noticed that accused Balwinder Singh was armed with a 12 bore DBBL gun, and his brothers Charanjit Singh and Jaswinder Singh, were standing there (near his tubewell). On seeing Joga Singh and others, Charanjit Singh and Jaswinder Singh gave an exhortation that Balwinder Singh should take revenge of murder of his son Parjinder Singh. Whereupon, Balwinder Singh fired two shots from his 12 bore DBBL gun, towards Joga Singh, Mohinder Singh and others. Those shots hit into the head of Mohinder Singh, who was sitting on the left mudguard of the tractor. On receipt of fire arm injuries, Mohinder Singh fell down on road and died. Surjit Singh, who was driving the tractor, sped it away. However, accused-Balwinder Singh, with an intention to kill, fired another gun shot from his 12 bore DBBL gun at Joga Singh and other members. After leaving the tractor on way, Joga Singh and others ran through fields. In the meanwhile, Balwinder Singh alongwith Jaswinder Singh and Charanjit Singh, came in Jeep No.DDA-2981, to the out-house of Joga Singh. Jeep was being driven by accused-Charanjit Singh. Teja Singh, uncle of Joga Singh and Naranjan Kaur wife of Teja Singh, were present in the out-house. Accused-Balwinder Singh fired two shots from his 12 bore DBBL gun at Teja Singh, which hit into his right biceps. When accused-Balwinder Singh tried to re-load his gun, Teja Singh came forward and caught hold of his gun. Naranjan Kaur also grappled with him and finally snatched his Double Barrel gun. During the grappling, the butt of gun was also broken. Thereafter, Charanjit Singh brought an iron rod from the Jeep and caused injuries on the neck, left ear and other parts of body of Naranjan Kaur. Balwinder Singh and other accused persons thereafter sped away the Jeep from there. Jit Singh was left to guard the dead body of Mohinder Singh, and injured Teja Singh and Naranjan Kaur were taken to Civil Hospital, Dhilwan by their son Surjit Singh. Joga Singh went to Police Station Dhilwan, for lodging a report and produced the DBBL gun, with broken butt, before Gurbachan Singh, Sub Inspector/SHO, P.S. Dhilwan. His statement, Ex.PA, was recorded and after it was read over and explained to him, which he admitted to be correct, he put his signatures. This was finally recorded as First Information Report. Aforesaid DBBL gun, which was produced by Joga Singh, before Gurbachan Singh, Sub Inspector, was unloaded and two empties were recovered. Gun and two empties were converted into separate parcels, sealed with the seal impression 'GS' and taken into possession vide memo Ex.PB, which was attested by Joga Singh and ASI Ajit Singh. Thereafter, SI Gurbachan Singh, alongwith complainant and other police officials, proceeded towards the scene of occurrence, in the area of village Butala. Dead body of Mohinder Singh was found lying there and thus, Inquest proceedings of dead body were conducted and a report, Ex.PG, was prepared. The dead body was identified by Jit Singh and Piara Singh and it was entrusted to HC No.717 Gurmel Singh and Constable No.711 Santokh Singh, to be carried for conducting post-mortem examination in Civil Hospital, Kapurthala, vide request letter Ex.PF. Blood stained earth was also lifted from the spot and put into a tin box, which was also sealed with the seal bearing impression 'GS'. It was taken into possession, vide memo Ex.PW11/A, which was attested by Jit Singh, Piara Singh and ASI Ajit Singh. Three empties of 12 bore gun lying on spot, were lifted and converted into a sealed parcel. They were taken into possession vide memo Ex.PW11/B. Scene of occurrence was inspected and a site plan, Ex.PW11/C, was prepared with correct marginal notes. Thereafter, SI Gurbachan Singh, alongwith other police officials and Joga Singh, complainant, proceeded towards the out-house of Teja Singh, near Dhusi Bandh. Blood stained earth was also lifted from that place and converted into a parcel, which was sealed with the seal, bearing impression 'GS'. This was taken into possession, vide memo Ex.PW11/D, attested by Joga Singh and ASI Ajit Singh. Site plan, Ex.PW11/E, of the place of occurrence, in the out-house of Teja Singh, was prepared with correct marginal notes. When SI Gurbachan Singh, alongwith other police officials, was returning and reached near village Mangewal, he noticed a Jeep coming from the opposite direction. The jeep (Mahindra No.DDA- 2981), which was being driven by accused-Balwinder Singh, was stopped and the accused was apprehended, and the jeep was also taken into custody vide memo Ex.PW11/F, alongwith its R.C., Ex.P.2. Arrest memo and information memo, Ex.PG and Ex.PH, of accused Balwinder Singh, were prepared. Thereafter, SI Gurbachan Singh, proceeded towards Civil Hospital, Dhilwan. The attending Doctor and injured Teja Singh, were not found available in the hospital.

Learned trial Judge, while placing reliance on the evidence of aforesaid witnesses, as also on circumstantial evidence placed on record, convicted two accused-appellants herein, while recording the acquittal of co-accused Jaswinder Singh, as the prosecution failed to prove its case against him beyond reasonable doubt.

We have heard learned counsel for parties and perused the record.

Learned Senior counsel Shri R.S.Cheema, appearing on behalf of appellants, submitted that accused-appellants had no motive to commit the murder of Mohinder Singh, who was not their target as in the murder of Parjinder Singh son of accused Balwinder Singh, deceased Mohinder Singh was not made an accused. He further submitted that initially accused Balwinder Singh alone was challaned under Section 302 and two co- accused Charanjit Singh and Jaswinder Singh (since acquitted), were placed in column No.2, being found to be innocent. Learned Senior counsel also questioned the site as well as occurrence of the first incident itself, said to have taken place on a road near the tubewell of accused persons. Learned Senior counsel further submitted that as per the evidence of witness Joga Singh, two co-accused had given lalkara, whereas the third one namely accused Balwinder Singh had fired two gun shots from his 12 bore DBBL gun on the deceased and thereafter, on witnesses. According to learned Senior counsel, looking to the nature of injuries, gun shots should have been fired from point blank range, but the site plan of this case disclosed that the gun shot was fired from a distance of 27-1/2 feet. Further, according to Senior counsel, the complainant side, after leaving their tractor, had run into fields, and the accused side after boarding the Jeep had gone to the Haveli of the complainant, where accused Balwinder Singh fired two gun shots from his 12 bore DBBL gun and caused gun shot injuries to witness Teja Singh and his wife Naranjan Kaur. When he started re-loading the gun, injured Teja Singh caught hold of his gun and his wife Naranjan Kaur grappled with accused Balwinder Singh. During the course of grappling, the butt of gun was also broken. However, this has come on record that the gun was deposited with police by complainant Joga Singh at the time of lodging FIR. Learned senior counsel submitted that in this background, the version given by two injured witnesses that they were shot in the Haveli, look to be more probable than the first one in regard to causing of gun shot injury to deceased Mohinder Singh near the tubewell of Baljinder Singh. Further, the police could not find any pellet mark on the tractor, nor on the person of Surjit Singh, who was driving that tractor and also on the body of Joga Singh who was sitting on the mudguard of tractor. Even if the first occurrence is believed, then the provisions of Section 34 IPC would not be attracted so as to fasten criminal liability on accused Charanjit Singh because he had only given a lalkara and did not participate in the actual occurrence. If at all, Section 34 of IPC is to apply, it would apply only in respect of the second occurrence when accused Charanjit Singh boarded the Jeep with accused Balwinder Singh and also caused injuries to Naranjan Kaur by an iron rod. Thus, according to learned senior counsel, eye witness Joga Singh being the complainant is not a dependable witness. Learned senior counsel also referred to the cross examinations of witness Joga Singh to impeach his credibility.

Joga Singh (PW1) has supported his statement given in FIR. He has given a vivid description as to why and how the incident took place. According to him, on 1.3.2000, he alongwith Surjit Singh and Mohinder Singh (deceased) were returning from their fields to their Haveli after cultivating their lands. When they reached near tubewell of accused persons, accused Balwinder Singh was seen standing with his 12 bore DBBL gun. Co-accused Charanjit Singh and Jaswinder Singh were also present there, but they were empty handed. Charanjit Singh and Jaswinder Singh are real brothers. They raised a lalkara that complainant's side should not escape and the revenge of killing Parjinder Singh son of Balwinder Singh be taken. Thereupon, accused Balwinder Singh opened fire on complainant's side hitting deceased Mohinder Singh, uncle of complainant Joga Singh, on his head. He was sitting on the left mud guard of Tractor while Surjit Singh was driving it and witness Joga Singh (PW1) was sitting on the tillers. Mohinder Singh fell down and succumbed to the injuries instantaneously. According to this witness, they were carrying fodder on tiller of the Tractor. Thereafter, accused Balwinder Singh continued firing further gun shots at them with the intention to kill them. Hence, accused Joga Singh and Surjit Singh left the Tractor and ran away. However, accused Balwinder Singh, Charanjit Singh and Jaswinder Singh reached their Haveli in a jeep (No.DDA-2981), and accused Charanjit Singh was driving that jeep. By the time the accused persons reached the Haveli, witnesses Joga Singh and Surjit Singh also reached there. Uncle of Joga Singh, namely, Teja Singh and his wife Naranjan Kaur (aunt of Joga Singh) were present in the Haveli. Accused Balwinder Singh then fired two shots on Teja Singh hitting him on his left and right shoulders. However, witness Teja Singh and his wife Naranjan Kaur grappled with accused Balwinder Singh and in the process of said scuffle, the butt of gun of accused Balwinder Singh was also broken. Accused Charanjit Singh then took out a rod from the jeep and caused injuries to Naranjan Kaur on her left ear and neck. Thereafter, all three accused persons sped away the jeep from the spot but witness Teja Singh (PW2) had already snatched the gun from accused Balwinder Singh. Both injured persons Teja Singh and his wife Naranjan Kaur were carried to Civil Hospital, Dhilwan, and complainant Joga Singh went to police station, Dhilwan to lodge a report. He gave the statement to SI Gurbachan Singh, S.H.O. He also deposited the snatched gun in police station, which had been given to him by injured Teja Singh. The gun was unloaded and three empty cartridges were found by the police. In cross- examinations, complainant Joga Singh admitted that Parjinder Singh was the only son of accused Balwinder Singh in whose murder case, he (Joga Singh) was convicted under Section 304 Part-I IPC. He has also admitted that during investigation of the case, accused persons Charanjit Singh and Jaswinder Singh were found to be innocent. However, he has not denied the fact that the complainant side had not committed the murder of Parjinder Singh and they were falsely implicated. In that case, witness Joga Singh and his brother Baldev Singh, and his cousins Surjit Singh and Manjit Singh and his father Jarnail Singh were convicted and sentenced to life imprisonment. In his further cross-examinations, witness Joga Singh admitted that the accused persons had not made any attempt to assault him and his cousin Surjit Singh at the time when injuries had been caused to Teja Singh and his wife Naranjan Kaur. However, this witness has also admitted that he and his cousin Surjit Singh had not intervened when Naranjan Kaur and Teja Singh had been assaulted. They also did not help the couple in snatching the gun from accused Balwinder Singh. The gun snatched from accused Balwinder Singh was handed over to complainant Joga Singh in the Haveli itself. This witness further stated that he had parted company with injured Teja Singh, his wife Naranjan Kaur and cousin Surjit Singh only at Civil Hospital, Dhilwan, as the Police Station was close to Civil Hospital. He has clarified that his cousin Surjit Singh, injured persons, namely, aunt Naranjan Kaur and uncle Teja Singh had not accompanied him to police station before going to Civil Hospital, Dhilwan. He also denied the defence suggestion that deceased Mohinder Singh and injured Teja Singh and Naranjan Kaur did not receive injuries in his presence. He has clearly mentioned that he and his cousin Surjit Singh had jumped from the tractor at the place where his uncle Mohinder Singh was shot dead. He also stated that there were blood stains on the body of tractor when he had seen it in the evening at his residence. Blood stains were noticed on the left mud guard which he had also told to the police. According to this witness, police had visited his house in the village and noticed the presence of blood stains on the mud guard of tractor. The tractor was lying near the place of first occurrence when he had visited that place with police and the police had also noticed the presence of blood stains on tractor. He also stated that the police left that place at 3.00 p.m. and the tractor was still standing there. He has clarified that before the High Court enhanced their sentence in the murder case of Parjinder Singh, they had been released after undergoing the sentence imposed upon them by the trial Court and thereafter, they were released on bail by the Supreme Court. He has denied all the defence suggestions and his statement recorded under Section 161 Cr.P.C., which were contrary to the prosecution case. He also stated that his cousin Surjit Singh, who had accompanied him till Civil Hospital, did not meet him again on 1.3.2000. He met him only on next day in the Civil Hospital, Kapurthala, at 11.00 a.m, where injured Teja Singh was admitted. According to him, police was also present. He has repeatedly denied the defence suggestions that his cousin Surjit Singh, his aunt injured Naranjan Kaur and uncle injured Teja Singh were also with him when he went to police station. He also denied the defence suggestion that injured Naranjan Kaur and Teja Singh were sent to Civil Hospital by the police from police station. Thus, in the statement of this witness, no such material has come on record so as to impeach his credibility nor is there any improvement in his evidence. He has categorically denied all such defence suggestions which were contrary to the prosecution case and his statement given to the police leading to recording of FIR. Thus, it cannot be alleged that the FIR was lodged after prior deliberations.

Teja Singh (PW2) is an injured witness. He is uncle of complainant Joga Singh (PW1) and father of Surjit Singh. In his examination- in-chief, he has stated that on 1.3.2000 at about 1.30 p.m., he and his wife Naranjan Kaur were present in Haveli. All three accused persons came there in jeep which was being driven by accused Charanjit Singh. Accused Balwinder Singh was carrying a .12 bore DBBL gun, and fired two gun shots at them and both these shots hit him on his right shoulder. The accused persons did not utter anything to them before accused Balwinder Singh opened fire. Accused Charanjit Singh also participated in committing offence as he had brought a rod from the jeep and caused a blow on the left ear and neck of his wife Naranjan Kaur. This witness Teja Singh had also grappled with accused Balwinder Singh and so had his wife Naranjan Kaur. When accused Balwinder Singh was trying to re-load his gun, they snatched the gun from him and in the process, the butt of gun had been broken. At that time, witness Joga Singh and Surjit Singh also reached the place of occurrence and witnessed the commission of offence. Thereafter, accused persons fled away from the scene of occurrence in their jeep. He and his wife Naranjan Kaur were taken to Civil Hospital, Dhilwan, where they were medically examined. Later, this witness was referred to Civil Hospital, Kapurthala, where his son Surjit Singh and nephew Joga Singh (PW1) informed him that the accused persons also committed murder of his brother Mohinder Singh. His statement was recorded by police in the hospital. He also identified the jeep used in the incident by the accused when it was standing outside the Court. In his cross-examinations, witness Teja Singh has admitted that during the grappling, he had also snatched the gun from accused Balwinder Singh and grappled with him. He testified that his son Surjit Singh and nephew Joga Singh had not come to their rescue but they had witnessed the incident from a distance. Joga Singh (PW1) contacted him only on 3rd day of incident in Civil Hospital, Kapurthala, after he had parted with his company at Dhilwan. Witness Teja Singh also denied the defence suggestion that he had not received any injury and there was no grappling with accused Balwinder Singh. He also denied further defence suggestion that he and his wife fabricated the injuries noticed on their person and thereafter set up a false story to implicate the accused persons on account of the past enmity. Witness Naranjan Kaur (PW3) has also supported the prosecution case and has corroborated the statement of her husband Teja Singh (PW2). She categorically stated that about 2 years prior to the incident, at about 1.30/2.00 p.m., she along with her husband Teja Singh was staying in their Haveli when all the three accused persons came there in a jeep being driven by accused Charanjit Singh. One of the accused persons namely Balwinder Singh, who was armed with a gun, started firing from the gun with an intention to kill her husband. The fire shots hit on the right shoulder of her husband Teja Singh and when accused Balwinder Singh tried to re-load his gun, she and her husband Teja Singh grappled with him and in the scuffle, the butt of gun was also broken. Thereafter, accused Charanjit Singh brought a rod from the jeep and caused a rod blow to her hitting on the left ear and other parts of body. She has further deposed that the occurrence was witnessed by witness Joga Singh (PW1) and her son Surjit Singh. Thereafter, accused persons fled away from the spot in their jeep. She has also stated that her husband Teja Singh was later referred to Civil Hospital, Kapurthala, whereas, she was medically examined in local Civil Hospital, Dhilwan, and her statement was also recorded by the police. She has specifically stated that deceased Mohinder Singh was killed by accused persons in a prior incident as informed to her by witness Joga Singh and her son Surjit Singh. In her cross- examinations, she has further deposed that perhaps the attending Doctor had seen her injuries on 2.3.2000 after sun rise. She stated that her husband Teja Singh had been immediately referred to Civil Hospital, Kapurthala, without giving any medicine at Dhilwan, and only a bandage was applied there. She denied the defence suggestion that her sons Surjit Singh and Manjit Singh with her brother-in-law Jarnail Singh and nephew Joga Singh had committed the murder of Parjinder Singh son of accused Balwinder Singh. She asserted that her sons were convicted and sentenced on being falsely implicated in that case. She denied the defence suggestion that she had not suffered any injury in the manner as depicted by her and also denied that the accused persons had not come to her Haveli in the jeep. She also denied the defence suggestion that her husband had not suffered any gun shot injury at the hands of accused Balwinder Singh and they have falsely implicated him in this case. She also denied the defence suggestion that her son Surjit Singh and nephew Joga Singh had not returned to Haveli and witnessed the incident.