Gurdial Singh and Others vs State of Punjab

Hemant Gupta, J.—This order shall dispose of aforementioned two appeals preferred by Gurdial Singh @ Hardial Singh @ Dali son of Gurbax Singh and Sucha Singh @ Ghucha son of Mohinder Singh aggrieved against the judgment of conviction and order of sentence dated 20.04.2010 passed by the learned Additional Sessions Judge, Amritsar, whereby both the appellants were convicted for the offences punishable under Sections 396/341 read with Section 34 IPC and sentenced to undergo for varying terms as mentioned in the order of sentence.

The prosecution case was set in motion, when SI Harish Behl, SHO, P.S. Airport, Amritsar, received a telephonic call from Janta Hospital, opposite Central Jail, Amritsar, regarding admission of one Amrik Singh son of Swaran Singh due to gun-shot injury. He reached hospital and got recorded the statement of Harcharan Singh son of Anoop Singh on 15.06.2007 at about 3.30 PM. In his statement (Ex. PG), Harcharan Singh stated that on 23.05.2007, he and his brother namely Sukhchain Singh have agreed to purchase 4 1/2 acres of land situated at Mohan Bhandaria Fatehgarh Churian from Jagdip Singh @ Judge son of Jhirmal Singh @ Iqbal Singh and Paramjit Singh son of Amrik Singh, both residents of Nijjarpura, at the rate of Rs. 10,75,000/- per acre. An amount of Rs. 23,45,000/- was paid to Jagdip Singh and Paramjit Singh as part payment and the sale deed was to be executed on 15.06.2007. As per agreement, he arranged to pay Rs. 26,00,000/-. Since the amount was huge, he arranged Zen car bearing registration No. PB-02-888 from his neighbourer Prem Singh son of Raghbir Singh. Thereafter, at about 12.45 PM, he alongwith his brother Sukhchain Singh; father Anoop Singh; nephew Hoshiar Singh and brother-in-law Amrik Singh proceeded towards Ajnala Tehsil on the said car for execution of sale deed. At about 1.00 PM, when they reached near the farm house of Numberdar Waryam Singh resident of Village Heir, six young persons i.e. three persons riding on a red colour motorcycle and three others were pushing it, suddenly brought the motorcycle in front of their car as a result of which, he applied brakes of the car. Out of them, five persons took out their pistols and pointed towards them and asked them to come out of the car. He, his brother Sukhchain Singh and nephew Hoshiar Singh came out of the car. Then all the assailants started snatching the bag containing cash from his father Anoop Singh. His brother-in-law Amrik Singh tried to save the said bag and got grappled with the assailants. In the meantime, one of the assailants shot fire with his pistol on his brother-in-law, which hit in his abdomen. He further stated that after taking bag containing cash from his father, he ran away. After coming out of the car, his father started raising hue and cry as a result of which, people started gathering at the spot. Thereafter, all the assailants absconded from the spot on the motorcycle as well as on their car. He further stated that after arranging the vehicle, they removed Amrik Singh to Janta Hospital, Opposite Central Jail, Amritsar.

On the basis of such statement, ruqa (Ex. PI/1) was sent to the Police Station for registration of an FIR. On receipt of ruqa, FIR (Ex. PI/2) was lodged at about 4.00 PM on the same day. Thereafter, SI Harish Behl, the Investigating Officer, visited the spot and recovered one live cartridge of 9 mm; one empty cartridge of 9 mm and one spectacle from the spot. After converting them into separate parcels, all the articles were taken into possession. He also prepared rough site plan Ex. P.J.

On the same day, on receipt of secret information to the effect that the car, which was taken by the assailants, has been abandoned near Meeran Kot Chowk, SI Harish Behl reached there and got recovered the same. On search of the car, one live cartridge of 9 mm was recovered. After converting into separate parcel, the same was taken into possession alongwith the car. He also prepared the rough site plan Ex. P.K.

On the next day i.e. 16.06.2007, SI Harish Behl reached Janta Hospital on receipt of information that injured Amrik Singh has died due to the injuries sustained by him. He prepared inquest report Ex. PL and sent the dead body of deceased Amrik Singh for post-mortem examination. After the death of Amrik Singh, offence under Section 396 IPC was added vide DDR entry Ex. PM.

It was on 28.10.2007, SI Harish Behl showed some photographs of accused relating to case FIR No. 72 of 2007, P.S. Dera Baba Nanak to Harcharan Singh i.e. author of FIR, who identified the photographs of Sucha Singh and Gurdial Singh - the present appellants, as the persons, who have killed Amrik Singh on 15.06.2007. Thereafter, after obtaining production warrants of both the accused, who were lodged in jail in the above said case, they were formally arrested in the present case on 17.11.2007. On completion of necessary investigations, report under Section 173 Cr.P.C. was filed against the present appellants.

It is pertinent to mention that during the pendency of trial accused Suresh Kumar @ Raju Bhaiya son of Sukhdev Singh, resident of 770 Mota Singh Nagar, Jalandhar was also arrested in the present case after he absconded. However, in separate trail, he stands acquitted.

To prove its case, the prosecution examined PW-1 Dr. Jatinder Singh Pannu, Medical Superintendent, Janta Hospital, Amritsar. He deposed regarding admission of Amrik Singh son of Swarn Singh, resident of Village Kohali, Tehsil Ajnala, District Amritsar in the emergency ward of Janta Hospital on 15.06.2007 at about 12.50 PM. He further deposed that the patient remained in ICU and died on the same day at about 10.29 PM. He also proved the bed head ticket of Amrik Singh as Ex. PA.

PW-13 Dr. Puneet Arora conducted the post-mortem examination on the dead body of Amrik Singh on 16.06.2007. He opined that the cause of death was hemorrhage and shock as a result of ante mortem firearm injury, which was sufficient to cause death in the ordinary course of nature. He also proved the post mortem report and pictorial diagram as Ex. P.W. 13/A and P.W. 13/B respectively. A bullet was recovered from the dead body, which was taken in possession vide recovery memo Ex. PO.

PW-8 Harcharan Singh, apart from reiterating his earlier version i.e. basis of FIR, deposed that on 28.10.2007, the police showed him the photographs of the accused present in the court and he identified them from the said photographs. He further deposed that on 18.11.2007, he alongwith his brother-in-law Gurjit Singh went to the police station to enquire about the status of the case and at that time accused Sucha Singh and Gurdial Singh were being interrogated in the police station and on seeing them, he recognized them to be the same persons, who had killed Amrik Singh.

PW-9 Sukhchain Singh and PW-11 Hoshiar Singh also supported the prosecution case in its entirety. PW-10 SI Harish Behl - the Investigating Officer and PW-7 ASI Bhagwan Singh, while appearing in the witness-box, deposed regarding investigations to be carried out by them. Apart from the above witnesses, the prosecution also examined the formal witnesses to complete the chain of circumstances.

After conclusion of prosecution evidence, the statements of both the accused were recorded under Section 313 Cr.P.C. They were put all the incriminating circumstances appearing against them in the prosecution evidence. They denied the prosecution case and pleaded false implication. In their defence, the accused examined D.W.-1 ASI Balwinder Kumar, P.S. Dera Baba Nanak; D.W.-2 Pawan Kumar, Ahlmad to the Court of Additional Sessions Judge, Gurdaspur; D.W.-3 SI Surinder Singh, P.S. Dera Baba Nanak and D.W.-4 DSP (D) Gurmit Singh apart from tendering statements of Hoshiar Singh, Harcharan Singh and Sukhchain as Exs. PX, PY and PZ respectively.

After going through the evidence on record, the learned trial Court returned a finding that the prosecution has been able to prove the guilt of the present appellants beyond any reasonable doubt and accordingly convicted and sentenced them, as mentioned above.

Before this Court, Mr. Bahl, learned Senior Advocate representing appellant Gurdial Singh @ Hardial Singh @ Dali has vehemently argued that the prosecution has failed to prove the identification of both the appellants, as both the appellants were not known to the complainant party. The prosecution has referred to the identification by way of photographs shown to the witnesses after their arrest in case FIR No. 72 dated 23.07.2008, P.S. Dera Baba Nanak. It is argued that such photographs though related to case FIR No. 72 dated 23.07.2008, P.S. Dera Baba Nanak, but are not the part of record pertaining to such trial, as deposed by D.W.-1 ASI Balwinder Kumar, who brought the summoned file titled as ''State v. Sucha Singh'' and D.W.-2 Pawan Kumar, Ahlmad, who has brought the summoned court file titled ''State v. Param Sunil Singh etc'' in case FIR No. 72 dated 23.07.2008, P.S. Dera Baba Nanak. It is also argued that D.W.-4 DSP (D) Gurmeet Singh has stated that appellant Sucha Singh was not subjected to be photographed during the period investigations remained with him. It is also argued that Suresh Kumar, who was attributed fatal gun shot blow, was arrested subsequently and tried separately. But in the separate trial, the prosecution witnesses examined in the present case as PW-8 Harcharan Singh, PW-9 Sukhchain Singh and PW-11 Hoshiar Singh have turned hostile and that accused Suresh Kumar was acquitted. Thus, it is argued that the learned trial Court has failed to appreciate statements Exs. PX, PY and PZ in view of the following order passed by this Court in Criminal Revision No. 2106 of 2009;

"Learned counsel for the petitioner wants to withdraw the petition with liberty to rely upon the statements in the supplementary challan case in order to high light the contradictions with an objective to impeach the credibility of the witnesses or to challenge the truthfulness of the witnesses, who have already deposed as witnesses against petitioners 1 and 2 in the original trial titled ''State v. Sucha Singh'', as the petitioners can take advantage of the subsequent statements of some of the witnesses by producing the same in defence.

Without expression of any opinion, I permit the petitioner to withdraw this revision petition with the above said liberty."

On the other hand, learned counsel for the respondent-State has argued that the identity of the accused has been established by the witnesses in the Court itself. During the course of investigation, the Investigating Officer confirmed the identity of the accused on the basis of photographs, but evidence on oath in Court is the most relevant evidence, when the accused had the opportunity to cross-examine the witnesses. All the three witnesses i.e. PW-8 Harcharan Singh, PW-9 Sukhchain Singh and PW-11 Hoshiar Singh have stood the test of cross-examination and have consistently given graphic details of the manner of occurrence and identified accused in Court. It is also contended that availability of photographs on the court file leading to FIR No. 72 of 2007 is not material, as any information derived by the Investigating Officer from whatever sources can be used in evidence provided that the evidence produced is primary evidence which was allowed to be tested by cross-examination by the accused. Therefore, even if photographs of the accused, the basis of identification, are not available, the fact that the prosecution witnesses have identified the accused in Court and have stood the test of lengthy cross-examination, proves the prosecution case.

We have heard learned counsel for the parties and with their assistance gone through the entire record. PW-10 SI Harish Behl - the Investigating Officer, while appearing in the witness-box, has deposed that he got photographs of accused pertaining to case FIR No. 72 of 2007, P.S. Dera Baba Nanak on 28.10.2007. Such photographs were shown to PW-8 Harcharan Singh, who identified the photographs of the appellants, as the persons, who have killed Amrik Singh on 15.06.2007. It was during interrogation on 18.11.2007 i.e. after the arrest of the appellants on 17.11.2007, PW-8 Harcharan Singh identified the present appellants, as the persons, who have tried to snatch Rs. 26 lac from them and killed his brother-in-law Amrik Singh. PW-10 SI Harish Behl also proves the parcel containing one live and one empty cartridges of 9 mm as Ex. P3 and parcel containing bullet recovered from the body of deceased Amrik Singh as Ex. P6. In his cross-examination, PW-10 SI Harish Behl stated that he placed 10 photographs before Harcharan Singh on 28.10.2007 and he identified the appellants. He further stated that he did not know that such 10 photographs have been placed in report under Section 173 Cr.P.C. or not and that he has not prepared any memo for taking into possession the ten photographs.

PW-8 Harcharan Singh - the author of FIR, has categorically deposed that the accused present in the Court were one of those six persons and were pushing the motor-cycle from behind. He further deposed that it was Sucha Singh, who took out the keys of the car from the ignition point and made them to come out of the car. He further deposed that Sucha Singh then grabbed him from his neck and then they tried to snatch amount of Rs. 26 lacs. He further deposed that when the accused persons tried to snatch the amount, Amrik Singh came forward, then the other accused present in Court known as Dali fired at Amrik Singh with a pistol, which hit Amrik Singh on the area little below the chest. He further deposed that they raised hue and cry as a result of which some people from nearby Dera came out. Thereafter, all said six persons escaped from the spot on the motor cycle and they also took away their Zen car. In his cross-examination, he stated that photographs of about 100 persons were shown to him, but the police did not tell him the names of 100 persons. He came to know about the names of the accused on 18.11.2007, when they were shown to him in the Police Station. Similar is the statement of PW-9 Sukhchain Singh, brother of Harcharan Singh. In his cross-examination, PW-9 Sukhchain Singh stated that he had mentioned the age of accused persons and their accomplices about 30/35 years and that the appearance of accused Gurdial Singh was in the same condition as he looks today except as he was not wearing Patka (Headgear) at that time. PW-11 is Hoshiar Singh i.e. son of PW-8 Harcharan Singh''s sister. He was the one, who was in car alongwith his maternal uncles namely Harcharan Singh and Sukhchain Singh. In his cross-examination, he stated that he used to go to the Police Station with Harcharan Singh, but could not know the names of culprits or the persons, who had committed the crime. He stated that he identified accused after occurrence. From the said testimonies, it is categorical clear that PW-8 Harcharan Singh and PW-11 Hoshiar Singh have committed no mistake in identifying the accused and on the other hand PW-9 Sukhchain Singh was categorical that accused Gurdial Singh looks same, but he was not wearing patka at the time of commission of offence. The said witnesses have not been cross-examined in respect of truthfulness of the said part of the statement. Since all the prosecution witnesses are categorical and clear about the identification of both the accused and the role played, we do not find that the appellants can be permitted to dispute their identity during the course of trial.

The argument that PW-8 Harcharan Singh, PW-9 Sukhchain Singh and PW-11 Hoshiar Singh have changed their version, when they appeared in the separate trial against Suresh Kumar, which is evident from the statements Exs. PX, PY and PZ, therefore, their testimonies cannot be taken into consideration, is again is not tenable. Such prosecution witnesses were examined in Suresh Kumar''s trial on 15.11.2009 i.e. after more than one year of their statements recorded before the trial Court on 21.08.2008. The defence has not moved any application for recall of the said witnesses to contradict them with their statements made in Suresh Kumar''s trial. Any statement made by a witness in other trial cannot be read as evidence in the present case, unless the witness is confronted with the previous statement and given an opportunity to explain such statement.

Learned counsel for the appellants has relied upon an order, as reproduced above, wherein the present appellants have withdrawn their petition with liberty to rely upon the statement in the supplementary challan case in order to impeach the credibility of the witnesses or to challenge the truthfulness of the witnesses. The appellants have withdrawn their petition. Therefore, the statutory provisions of evidence cannot be said to be complied with on the basis of perception of the appellants in the criminal revision. In terms of Section 145 of the Code of Criminal Procedure, the previous statement of the witness cannot be read into evidence unless the witness is confronted with the previous statement. In Sudevanand Vs. State, (2012) CriLJ 1320 : (2012) 1 Crimes 137 : (2012) 2 JT 40 : (2012) 1 RCR(Criminal) 662 : (2012) 1 SCALE 462 : (2012) 3 SCC 387 : (2012) AIRSCW 953 : (2012) 1 Supreme 329 , the Hon''ble Supreme court was examining a case where a witness who turned approved, changed his version in another trial. The Court relied upon Mishrilal and Others Vs. State of M.P. and Others, (2005) 5 JT 559 : (2005) 10 SCC 701 : (2005) 1 SCR 259 Supp , to hold that the witness cannot be reexamined after his statement is recorded in another trial. The court discussed Section 145 of the Evidence Act that such statement should not be produced in evidence. The Court held:--

"25. In Mishrilal and Others Vs. State of M.P. and Others, (2005) 5 JT 559 : (2005) 10 SCC 701 : (2005) 1 SCR 259 Supp , one of the prosecution witnesses (PW 2) had supported the prosecution case before the trial court but before the Juvenile Court that was trying some of the juvenile accused in the same case he did not support the prosecution case and as a result, the juvenile accused were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness. After his evidence before the Juvenile Court, he was again summoned before the trial court where the other accused were facing trial and was confronted with the evidence he had given before the Juvenile Court. This Court found and held that the procedure adopted by the Sessions Judge was not in accordance with law and in paras 5 and 6 of the judgment observed and held as follows: (Mishrilal case, SCC pp. 702-03)

"5. The learned counsel for the appellants seriously attacked the evidence of PW 2 Mokam Singh. This witness was examined by the Sessions Judge on 6-2-1991 and cross-examined on the same day by the defence counsel. Thereafter, it seems, that on behalf of the accused persons an application was filed and PW 2 Mokam Singh was recalled. PW 2 was again examined and cross-examined on 31-7-1991. It may be noted that some of the persons who were allegedly involved in this incident were minors and their case was tried by the Juvenile Court. PW 2 Mokam Singh was also examined as a witness in the case before the Juvenile Court. In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some banjaras. Upon recalling, PW 2 Mokam Singh was confronted with the evidence he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness.

In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW 2 Mokam Singh on 6-2-1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or for some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses."

The decision in Mishrilal case was followed in Hanuman Ram Vs. The State of Rajasthan and Others, AIR 2009 SC 69 : (2009) CLT 50 : (2008) 11 JT 154 : (2008) 13 SCALE 155 : (2008) 15 SCC 652 . Mishrilal case had come to this Court after the appeal court had maintained the conviction and sentence passed against the accused. But Hanuman Ram case came at the intermediate stage when the trial court was directed by the High Court to recall two prosecution witnesses under Section 311 Cr.P.C. under similar circumstances. In Hanuman Ram case too, two of the witnesses (P.Ws. 3 and 5) who had supported the prosecution case before the trial court did not support the case of the prosecution before the Children''s Court where one of the accused in the case who was a minor was being tried. Before the trial court an application was made under Section 311 Cr.P.C. for summoning those two witnesses for cross-examination with reference to their statements before the Children''s Court. The trial court did not accept the prayer and rejected the petition. On an application in revision, the High Court intervened in favour of the accused and directed the trial court to recall and re-examine the two witnesses. In appeal against the High Court order, this Court following the earlier decision in Mishrilal case, held that there was no legal foundation for recalling the witnesses under Section 311 Cr.P.C. and set aside the High Court judgment.

At first sight, the decisions in Mishrilal case and Hanuman Ram case seem to clinch the issue arising in the case. But, on a deeper examination, it would appear that the decision in Mishrilal case did not interpret Section 311 Cr.P.C. defining the import, scope and ambit of the provision contained therein. It rather said that on the facts of the case, the provision had no application and the procedure adopted by the trial court was not strictly in accordance with law."

Therefore, the liberty granted by this Court will not amount to overriding of the settled and established principles of law regarding the evidentiary value of the statements made subsequently in another trial.

Still further, PW-11 Hoshiar Singh, while appearing as PW-10 in Suresh Kumar''s trial, has deposed that he has seen accused referring to Suresh Kumar, but he cannot say whether he was one of the said six persons or not, as he cannot identify him. In his cross-examination, he stated that he did not know the names of any of the six assailants and that he did not know any of them prior to the occurrence nor he has seen any of them prior to the occurrence. Similarly, Harcharan Singh, while appearing as PW-8 in Suresh Kumar''s trial, in his cross-examination by the Additional Public Prosecutor admitted that his statement was correctly recorded by the police as also the previous statement given by him. He denied that he has intentionally not identified the accused, as he has entered into a compromise with him. Similarly, PW-9 Sukhchain Singh while appearing as PW-12 in Suresh Kumar''s trial, failed to identify the accused Suresh Kumar, but in his cross-examination by the Additional Public Prosecutor, he admits that he had given the statement in court earlier also on the basis of whatever was stated to him by the police regarding investigation and identity of accused. He denied that he has given a false statement in the Court.

None of the prosecution witnesses have changed the manner of occurrence except that they have refused to identify accused Suresh Kumar. Since they have refused to identify Suresh Kumar in a separate trial against him, any part of the statement cannot be used by the present appellants, when they have the opportunity to cross-examine the witnesses when examined in the present trial.

In view of the above discussion, we do not find that the testimonies PW-8 Harcharan Singh, PW-9 Sukhchain Singh and PW-11 Hoshiar Singh suffer from any infirmity, so as to exclude it from evidence. The learned trial Court has considered the entire evidence in correct perspective to return a finding that the prosecution has succeeded in proving the charge against the appellants. The judgment of conviction and order of sentence recorded by the learned Additional Sessions Judge do not suffer from any patent illegality or irregularity.

Consequently, the present appeals are dismissed.