Balwinder Singh and Others vs State of Punjab

Hemant Gupta, J.—Present appeal is by Balwider Singh, Gurdeep Singh, Bahadur Singh sons of Shangara Singh and Gurdev Singh @ Gora son of Hazara Singh-brother of the wife of Balwinder Singh against the judgment passed by Additional Sessions Judge, Kapurthala dated 21.9.2001 convicting Balwinder Singh and Gurdev Singh for an offence u/s 302 of the Indian Penal Code (for short the ''Code'') and Gurdeep Singh and Bahadur Singh for an offence u/s 302 read with Section 34 of the Code. Balwinder Singh was also convicted for an offence u/s 307 whereas Gurdev Singh and Bahadur Singh were convicted for an offence u/s 307 read with Section 34 of the Code. Balwinder Singh with Gurdev Singh, Gurdeep Singh, Bahadur Singh was also convicted for firing at Kulwinder Singh with the intention and under such circumstances that if he had caused the death of Kulwinder Singh, he would have been guilty of his murder. Gurdev Singh was convicted for an offence u/s 307 of the Code and Balwinder Singh, Gurdeep Singh and Bahadur Singh were convicted for an offence u/s 307 read with Section 34 of the Code for firing at Lakhwinder Singh and Veer Kaur with such intention and under such circumstances that if by that act, he had caused their death, he would have been guilty of their murder. Gurdev Singh was convicted with the other co-accused Balwinder Singh, Gurdeep Singh, Bahadur Singh for firing Mehnga Singh with such intention and under such circumstances that if by that act he had caused his death, he would have been guilty of the murder of Mehnga Singh. Gurdeep Singh was convicted for an offence u/s 307 of the Code for firing at Lakhwidner Singh, Kulwinder Singh and Veer Kaur where as Balwinder Singh and Bahadur Singh were convicted for an offence u/s 307 of the Code read with Section 34 of the Code.

Prosecution case was set in motion on the basis of the statement (Ex. PA) of Lakhwinder Singh son of Bakshish Singh made to SI-Amrik Singh at 10.05 P.M. on 14.7.1999 in respect of the occurrence which had taken place at 6. P.M. in the area of Village Fattu Dhinga, Police Station Kotwali, Kapurthala. On the basis of such statement, FIR PA/2 was recorded at 10.15 P.M. The special report was received by learned Magistrate on 15.7.1999 at 11.00 A.M. In the said occurrence Jagjit Singh aged 55 years son of Bhagat Singh, nephew of Lakhwinder Singh died due to multiple injuries at 8.20 P.M. whereas, Lakhwinder Singh, Veer Kaur, Kulwinder Singh and Mehnga Singh received injuries. Lakhwinder Singh has stated that Kulwant Singh and Balwant Singh of his village owned a plot. Kulwant Singh sold his half share in the plot to Bahadur Singh accused for Rs. 9,000/-. Bahadur Singh wanted to occupy whole of the said plot. On 14.7.1999 at about 10. a.m. both the parties collected in the said plot for a compromise. Lakhwinder Singh PW1 and Jagjit Singh (since deceased) also participated in that gathering and were supporting Kulwant Singh and Balwant Singh. It was decided in that meeting that Bahadur Singh would get the land demarcated and would take possession of only the share of Kulwant Singh, which he has purchased. Bahadur Singh did not agree to this compromise and represented that he has purchased whole of the said plot and would occupy whole of it. At about 5. P.M. Lakhwinder Singh and his wife Gurjit Kaur were bathing their buffaloes when bahadur Singh and Balwinder Singh accused came there. They threatened Lakhwinder Singh that he was helping Kulwant Singh and Balwant Singh which would not be good for him. Balwant Singh informed the police of P.P. Fattu Dhigna, upon which the Incharge and an official came to the spot, who called both the parties and made them to understand that both of them should approach the Civil Court for the decision of the dispute. Thereafter, at about 6 P.M., when Lakhwinder Singh P.W. 1, his wife Gurjit kaur, his uncle Jagjit Singh (since deceased), Kulwindef Singh P.W. and his mother Vir Kaur PW2 were present in the court-yard of their house, where Balwinder Singh accused armed with 12 bore gun, Gurdeep Singh accused with 315 bore rifle, Bahadur Singh accused armed with a Kirpan, Shangara Singh with a dang, Surjit Singh with a datar and Gurdev Singh with 12 bore gun came in front of their house. Shangara Singh raised a lalkara to teach them a lesson for helping Kulwant Singh and Balwant Sigh. Upon this, all the accused entered the court-yard of their house. Gurdev Singh fired two shots towards them from his 12 bore gun hitting Jagjit Singh on his chest, abdomen and other part of the body. Balwinder Singh accused also fired from his 12 bore gun, which also hit Jagjit Singh on his abdomen, due to which Jagjit Singh fell down on the ground. In order to save him, Lakhwinder Singh P.W. 1, Kulwinder Singh and their mother Vir Kaur P.W. 2 came forward. Bahadur Singh raised a lalkara to deal with them in the same manner, upon which Gurdeep Singh fired two shots from his 315 bore rifle towards them. Balwinder Singh again fired two shots from his 12 bore gun towards them hitting Kulwinder Singh on different parts of his body. Gurdev Singh also fired a shot from his 12 bore gun towards them hitting Kulwinder Singh on different parts of his body. Gurdev Singh also fired a shot from his 12 bore gun which hit Lakhwinder Singh P.W. 1 and Vir Kaur P.W. 2. In the meantime, Balwant Singh and Mehnga Singh came towards them to rescue them, but Gurdev Singh fired frm his 12 bore gun towards them which hit Mehnga Singh on his back and leg. Lakhwinder Singh and others raised a raula, due to which several persons came there to rescue them. The accused then left the spot with their weapons. The injured were shifted to the hospital, where Jagjit Singh was declared dead. Others were admitted in the hospital.

On 15.7.1999, post mortem examination of the dead body of Jagjit Singh was conducted by a Board of Doctors consisting of Dr Hussan Lal Mehmi, SMO, Civil Hospital, Kapurthala, Dr B.S Multani, Dr Roop Lal and Dr Gurbachan Singh on an application (Ex. PB) moved by the police. Dr Hussan Lal Mehmi has appeared as P.W. 3 to prove the report of the Board of Directors in respect of post mortem conducted on the dead body of Jagjit Singh. The doctors have found the following injuries on the person of the deceased:

A lacerated punctured wound measuring 4 mm in diameter on left side of forehead with margins inverted.

A lacerated punctured wound measuring 3.5 mm in diameter on right side of nose with a margins of wound inverted.

Six punctured wounds on right shoulder measuring from 2.5 mm to 4 mm in diameters margins of the wounds were inverted.

Three punctured wound with inverted lacerated margins measuring 3 mm in diameters on front of neck and side of neck.

Nine punctured wounds with inverted lacerated margins on front of chest measuring 3 mm to 4 mm in diameters.

Ten punctured wound with inverted lacerated margins on front and outer side of left shoulder, measuring 3 mm to 4 mm in diameters.

Nine punctured wound with inverted lacerated margins on front of abdomen on right side measuring 3 mm to 4 mm in diameters.

A lacerated punctured wound on right thigh measuring 4 mm in diameters.

A lacerated punctured wound with inverted margins on inner side of right thigh measuring 3 mm in diameters.

Twelve lacerated punctured wounds with inverted margins on left thigh on upper part measuring 3.5 mm to 4 mm in diameters.

Two lacerated wounds on little finger of left hand measuring 3 mm in diameters, margins of the one wound was inverted and other were inverted.

A lacerated punctured wound with inverted margins on palm of right hand.

The Doctors have recovered one piece of metal from right lobe of liver. All the pieces of metal could not be detected on dissection because they were deeply embedded and were of small size. The x-ray films showing the presence of the metal pieces was sent with the post mortem report as a proof of the same.

P.W.-7 Dr Rajeshwar Singh, Medical Officer, Civil Hospital, Kapurthala conducted the medico legal examination of Kulwinder Singh son of Bakshish Singh aged 35 years on 14.7.1999 at 7.45 P.M and found the following injuries:

0.4 x 0.4 cm lacerated wounds with inturned inverted margins showing blackening were present on anterior aspect of left arm in the middle part, one over left deltroid region (anteriolateral aspect) about 10 cm distal to tip of acromion, three lacerated wounds on the back of left elbow, one lacerated wound on left submandibular region 51/8 cm below left ear lobule, one lacerated wound on the fore head 2.4 cm above root of nose (nasiom), two over right deltroid region in the upper half, one in right supraclavicular region roughly in the middle of it, one on the postero lateral of aspect of left neck roughly in the middle, one lacerated wound on left abdomen about 7.5 cm lateral and above the umbilicus, one lacerated wound on left lateral abdomen, one lacerated wound on right lateral abdomen wall about 2 cm below tip of 12th rib, two lacerated wound in the lower part of right thigh 6 cm above the right knee joint, one lacerated wound on lateral aspect of right lower leg near the knee joint. One over the glans penis, three over the shaft of penis, two over symphasis publis, one over the anterior aspect of thigh about 6 cm below inguinal ligament, one over lying right inguinal ligament 3 cm medical to anterior superior iliac spine, one overlying left inguinal ligament in the outer part one on the anterior lateral aspect of left upper thigh, fourteen (14) scattered lacerated wounds over left glottal region and back of left thigh, one on the back of right glutial region and 2 on the back of right thigh, one on the back of left chest in the lower part.

One lacerated wound about 0.6 cm x 0.3 cm oval in shape with inverted margins with blackening of margins on the front of left chest 2 cm below and medial to nipple.

One lacerated wound 1.5 cm x 0.2 cm elliptical in shape on the back of left thigh in the upper part with inturned margins with blackening of margins also.

One superficial lacerated wound 1.2 cm x 0.2 cm on right back in the upper part.

He deposed that after the report of surgical specialist, all injures were declared simple in nature and the weapon used was the fire arm. On the same date at 8.15 P.M, he medico legally examined Lakhwinder Singh and found two lacerated wounds. The injuries were declared simple in nature with the use gun cannot be ruled. P.W.-6- Dr Gian Chand Mangat, Senior Medical Officer, Civil Hospital, Kapurthala has medico legally examined Mehnga Singh son of Jagir Singh at 8.05 P.M. on 14.7.1999 and found three lacerated wound with inverted margins and blackening of margin over left lateral chest over posterior axillary line. On the same date at 8.25 P.M., he also examined Veer Kaur wife of Bakshish Singh and found lacerated wound with inverted margins and blackening of margins on posterior aspect of right fore-arm.

On 19.7.1999, accused Gurdeep Singh while in police custody, suffered a disclosure statement. In pursuance of such disclosure statement Ex PE, he got recovered his licensed 315 bore rifle (Ex. P-12) bearing No. 89-AB-0876 along with two empty cartridges (Ex. P-13) concealed in the room of his residential house vide the recovery memo (Ex. PG) in the presence of Pritam Singh, ASI (P.W.-5) and Nazar Singh (P.W.-4). Bahadur Singh also suffered a disclosure statement (Ex. PH) in respect of concealment of kirpan in the room of his residential house. Such kirpan was recovered and taken in possession. Such process witnessed by Pritam Singh ASI and Nazar Singh. Ex. PP is the disclosure statement suffered by Balwinder Singh, accused in respect of 12 bore double barrel licenced gun of his brother-Gurdeep Singh kept concealed under clothes in the iron box in the room of his residential house. Ex. PU is the recovery memo of 12 bore double barrel gun bearing No. 6306-83 and empty cartridges taken in possession on 18.7.1999 in the presence of witnesses Surjit Singh son of Piara Singh and Pritam Singh ASI. Gurdev Singh also suffered disclosure statement in respect of licensed double barrel bore gun bearing number 5277.98. Ex. PX is the recovery memo of such double barrel bore gun and of four empty cartridges from the room of the residential house of his brother Balwinder Singh.

The Forensic Science Laboratory in its report Ex. P-AL has reported as under:

one 12 bore K.F. cartridge marked as C-1 contained in parcel ''A'' fired from right barrel of 12 bore double barrel gun No. 6366-83;

Two 12-bore K.F. cartridges marked C-2 and C-3 contained in parcel ''A'' and left barrel of 12 bore double barrel gun No. 6366-83.

Two 12-bore K.F. cartridge marked C-4 and C-6 contained in parcel ''B'' fired from left barrel of 12-bore double barrel gun No. 5277-88.

Two 12-bore K.F. cartridge marked C-5 and C-7 contained in parcel ''B'' fired from right barrel of 12-bore double barrel gun No. 5277-88.

Two 315" K.F. cartridge marked C-8 ad C-9 contained in parcel ''C'' frimed from 315 bore inch bolt action rifle No. 89AB/0876.

Firing mechanism of two 12-bore double barrel gun No. 6366-83 No. 5277-88 and one 315 inch bolt action rifle No. 89 AB/0876 in the working condition.

The investigating Officer completed the other chain of circumstances including lifting of earth from the place of occuence, possession of the clothes of the deceased and submitted a report u/s 173 of the Code of Criminal Procedure. The present Appellants, Shangara Singh and Surjeet Singh son of Gurdeep Singh i.e. the grand son of Shangara Singh were made to stand trial. Learned trial Court granted benefit of doubt to Shangara Singh and Surjeet Singh while convicting the Appellants herein for the offences as mentioned above. During the pendency of the appeal, Gurdeep Singh died on 16.10.2007 and as per learned Counsel for the Appellants the appeal qua Gurdeep Singh stands abated.

Learned Counsel for the Appellants has vehemently argued that the lodging of the FIR is grossly delayed. The special report has been received by the learned Magistrate on 15.7.1999 at 11.00 A.M. in respect of the incident allegedly taken place around 6 P.M. on 14.7.1999. Therefore, the prosecution story is not free from doubt. It is contended that Mehnga Singh and Kulwinder Singh are said to be the injured in the said occurrence but have not been examined. Thus, the prosecution evidence consists of the statement of Lakhwinder Singh (P.W.-1), nephew of the deceased and Veer Kaur (P.W.-2), mother of Lakhwinder Singh. The witnesses examined in Court are the close relations of the deceased, therefore, their testimonies without corroboration cannot be relied upon and conviction on such statements is not sustainable.

It is contended that Gurdev Singh son of Hazara Singh is the brother of the wife of Balwinder Singh. He is resident of a different village. As per the allegations in the FIR, Bahadur Singh and Balwinder Singh had come to the house of Lakhwinder Singh at 5 p.m. therefore, Gurdev Singh cannot be present at the time of occurrence. It is contended that as per statement Ex PA, the motive or dispute is said to be of Lakhwinder Singh with Kulwant Singh and Balwant Singh. Therefore, there is no motive in causing death of Jagjit Singh. It is argued that Bahadur Singh is said to be armed with Kirpan but there is no injury by kirpan either on the person of the deceased or the injured, therefore, false implication of the near relation cannot be ruled out as the only allegation against him is of exhortion.

We have heard learned Counsel for the parties and do not find any merit in the present appeal. Firstly, we shall take up the argument that FIR is delayed. As per the prosecution evidence, incident has taken place at 6 P.M. on 14.7.1999. The police station is at a distance of 16 kms. The injured Lakhwinder Singh, Veer Kaur, Mehnga Singh and Kulwinder Singh have been medico legally examined in the Civil Hospital, Kapurthala from 7.45 p.m. till 8.25 p.m. Keeping in view the fact that large number of persons were hit by the fire arm shots, some time would be taken to provide medical assistance before recording of the FIR. But still, the time gap of recording of FIR is about four hours. The police station is also 16 kms away from the place of occurrence. It cannot be said there is any considerable delay in lodging of the FIR.

Learned Counsel for the Appellants, in fact, pointed out that the special report was received by learned Magistrate at 11.00 A.M. next day, therefore, it is open to the investigating agency to manipulate the recording of information. The delivery of special report to the learned Magistrate is proved by Constable Hardev Singh P.W.-15. In the affidavit (Ex. PA/J), he has stated that on 14.7.1999 at about 11.55 P.M., Satpal, MHC has given the special report to handover the same to the higher authorities. It is stated that he went to the residence of Shri Balbir Singh, CJM, Kapurthala at night but his residence was locked. Again in the morning, he went to the residence of Illaqa Magistrate but came to now that the Illaqa Magistrate is on leave. Therefore, he handed over the special report at the residence of Shri B.J. Nangli, Additional Chief Judicial Magistrate. P.W.-15- Hardev Singh has not been cross-examined. Thus, the reasons as to why the special report was delivered at 11.00 A.M. on 15.7.1999 stands explained.

Lakhwinder Singh and Veer Kaur have received fire arm injuries which is evident from the statement of P.W.-7 Dr. Rajeshwar Singh and P.W.-6 Dr. Gian Chand. In Court, P.W. 1 Lakhwinder Singh and P.W. 2 Veer Kaur have deposed in detail the manner of occurrence. The lengthy cross-examination has not been able to bring out any inconsistency or the fact that the said witnesses are not the reliable or truthful witnesses. Mere fact that such witnesses are the close relations of the deceased is not sufficient to doubt their version when the FIR in respect of the incident has been recorded soon after the incident; the fire arms recovered in pursuance of the disclosure statement of the accused along with the empty cartridges; and the injuries suffered by such witnesses stands corroborated by the medical evidence. Therefore, the prosecution evidence in respect of the manner of occurrence as deposed by P.W.-1 Lakhwinder Singh and P.W.-2 Veer Kaur conclusively establishes the commission of crime by the Appellants in the manner propounded by the prosecution. Jagjit Singh is not a stranger to Lakhwinder Singh. His joining Lakhwinder Singh is natural. The learned trial court has considered entire evidence to believe prosecution evidence. We do not find that the testimony of eyewitnesses is in way infirm. Such is the finding recorded by the learned trial Court as well.

Though, Gurdev Singh, one of the Appellants is the resident of a different village but he is the brother-in-law of Balwinder Singh. But both the witnesses i.e. P.W. 1 Lakhwinder Singh and P.W. 2 Veer Kaur have deposed that Gurdev Singh is frequent visitor to their village. He may not be present at 5 p.m. but keeping in view the relationship and frequency with which, he was visiting the village, his presence at about 6.00 p.m. is not unexpected or unnatural.

Learned Counsel for the Appellants has vehemently argued that as per the prosecution evidence in FIR, eight fires have been shot. It is contended that such large number of shots could not be fired as no empty was recovered from the spot. It is contended that at best it is a case of one shot which led to multiple injuries to the injured. We do not find any merit in such argument. Kulwinder Singh has not been examined as a witness on account of his ill health but his medical legal report shows the multiple injuries on account of fire arm injuries. The report shows that he has received injuries on the front portion of the body such as shoulder, abdomen, thighs and knees as well as on the back portion i.e. back side of thighs and on the hip. Therefore, the argument that only single shot was fired is not plausible as Kulwinder Singh cannot receive injuries from a single shot on the front side of the body as well as on the backside of the body. Similarly, Mehnga Singh has also received the fire arm injuries as per the medico legal report (Ex. PFF/1). cLarge number of injuries have been suffered by Lakhwinder Singh, Veer Kaur, Mehnga Singh and Kulwinder Singh. Such injuries are not possible to four different persons from a single fire arm shot.

It is also well settled that the quantity of the evidence is not relevant but the quality thereof. The other injured in the occurrence are Mehnga Singh and Kulwinder Singh. Mehnga Singh has been given up as won over whereas Kulwinder Singh was not examined as has become mentally unfit after the receipt of injuries. Therefore, their non examination is not any way prejudices the prosecution story. Mehnga Singh and Kulwinder Singh would add to the quantity of the evidence. Therefore, their non examination is not material so as to doubt the prosecution story.

Though, Bahadur Singh is armed with kirpan and there is no incised wound on any of the four injured or the deceased but the fact remains that the entire dispute revolves around him. It is Bahadur Singh who has purchased the part of land and wanted to take possession of the entire land. Therefore, the presence of Bahadur Singh and his exhortion to the other co-accused cannot be disbelieved.

We find that the prosecution story is plausible, reasonable and believable. Consequently, we do not find any reason to interfere with the findings recorded by learned trial Court.

Appeal is thus dismissed.