Jaswant Singh vs State of Haryana

Harphul Singh Brar, J.

Additional Sessions Judge, Sirsa, vide his judgment/order dated 4.11.1995 and 8.11.1995 respectively, convicted Jaswant Singh under section 302 IPC and under Section 27 of the Arms Act and awarded him death sentence under Section 302 IPC and a fine of Rs. 500/ in default of which he was further ordered to undergo rigorous imprisonment for two months. Jaswant Singh was also sentenced to undergo R.I. for two years under section 27 of the Arms Act. Against the aforesaid conviction and sentence Jaswant Singh has filed Criminal appeal No. 593DB95 and a murder reference No. 6 of 1995 has been forwarded by the Additional District Judge, Sirsa, for confirmation of death sentence. The appeal as well as murder reference have come up before us for decision.

Jaswant Singh son of Sohan Singh, Jat Sikh, resident of Amritsar Kalan, complainant, while lodging the FIR stated as under :

"That he was resident of Amritsar Kalan. On 20.4.1994 he and his nephew Baaj Singh son of Jai Singh were going to City Ellenabad for domestic affairs. Sukhdev Singh son of Bakhshish Singh Jat Sikh resident of Ellenabad who was nephew in relation and his son Jang Singh and Mohinder Singh son of Bakhshish Singh Jat Sikh resident of Shekhu Khera now at Ellenabad met them on the turning of the street leading to Electricity Board of Gurdwara Road. They were talking with them. In the meantime, Jaswant Singh son of Jhanda Singh, caste Jat Sikh resident of Dhani Jhanda Singh, Ellenabad whom he knew earlier came there armed with has gun from the street of Electricity Board. Jaswant Singh asked us "I have to talk with Sukhdev Singh separately." We got aside a little. As soon as we went aside from Sukhdev Singh within our sight Jaswant Singh fired shot from his single barrel gun on the chest of Sukhdev Singh as a result of which Sukhdev Singh fell down. We immediately overpowered Jaswant Singh along with his gun and bandoiler. Mohinder Singh and Jang Singh removed Sukhdev Singh to hospital at once. He and his nephew Baaj Singh were taking Jaswant Singh to PoliceStation. Jang Singh told them on the way that Sukhdev Singh had died. They then produced Jaswant singh along with his gun and bandolier before Ram Avtar ASI, Police Station, Ellanabad. Cause of grudge was that there money transactions between Jaswant Singh son of Jhanda Singh Jat Sikh resident of Dhani Jhanda Singh Ellenabad and deceased Sukhdev Singh. On account of that grudge Jaswant Singh had killed Sukhdev Singh by firing shot. He had got recorded his statement and after hearing his statement he had signed it in token of its correctness."

This statement of Jaswant Singh son of Sohan Singh was attested by Ram Avtar ASI, PoliceStation, Ellenabad.

An empty cartridge found in the gun was taken out. Sketch Ex. PF of the gun was prepared. There were 30 live cartridges in the bag. Separate sealed parcels of the empty cartridges, gun and the bag with live cartridges were prepared with the seal RA and were taken into possession vide memo Ex. PE by the police. The accused was arrested in this case. In the meantime, Sukhdev Singh on being taken to hospital was declared as brought dead and Dr. Bishnoi sent rukka Ex. PA to the police mentioning therein that Mohinder Singh PW had brought the dead body of Sukhdev Singh. Then Ram Avtar ASI went to Primary Health Centre, Ellenabad and prepared inquest report Ex. PC of the dead body of Sukhdev Singh and sent it for autopsy and recorded the statements of witnesses. Ram Avtar ASI then went to the place of occurrence and prepared rough site plan Ex. DA.

Dr. Gurtej Singh (PW 2) conducted postmortem examination of the dead body of Sukhdev Singh son of Bakhshish Singh on 20.4.1994 at 4.40 p.m. and found the following injuries on the dead body :

(i) An oval shaped lacerated wound of size 3 cm x 2 cm present on the abdominal wall. It was present on midline and right side of midline. It was 12 cm above the umbilicus. Blackening and tattooing was present. Margins were inverted.

(ii) The oval shaped lacerated wound of size 1 cm x 3/4 cm present on the abdominal wall. Margins were inverted. Blackening and tattooing was present. It was just half cm. below and lateral to injury No. 1.

(iii) A circular burn was present on the abdominal wall. It was of size 2 cm x 2 cm. The central area was healthy. It was 2 cm lateral to injury No. 1.

(iv) SemiCircular abrasion of size 2 cm x 3/4th cm present on the abdominal wall on right side. It was just lateral to injury No. 3 and at the same level.

(v) Semicircular abrasion of size 2 cm x 1.75 cm on the abdominal wall in right side. It was 1 cm lateral and slightly above the injury No. 4.

(vi) Semi Circular abrasion of size 2 cm x 1.75 cm present on the abdominal wall. It was 5 cm below the injury No. 5.

(vii) An abrasion of size 21/2 cm and 3/4th cm present on the anterior aspect of left leg. It was 18 cm below the left knee joint.

(viii) An abrasion of size half cm x 1/4th cm present on the medial aspect of left leg. It were 14 cm below the left knee joint.

On dissection, there was multiple lacerations of liver, perforation of stomach on both anterior and posterior walls of stomach, laceration of spleen, laceration of right kidney in its upper half, laceration of descending aort, fracture of first lumber vertebra was present. Two pellets were removed from the vertebra; other pellets could not be located. Then for that Xray of body was dore. Then one pellet was removed from the posterior wall of abdomen. Two pellets were embedded in the vertebra which could not be removed. So, three pellets in total taken out and sealed. The abdominal cavity was full of blood. Large transverse intestine was also perforated.

The cause of death, in the opinion of the doctor, was due to fire arm injuries which were sufficient to cause death in the ordinary course of nature and were ante mortem in nature.

Injuries No. 1 and 2 were caused by firearm. Injury No. 3 could be by hot barrel of firearm. Injuries No. 4 and 8 were caused by blunt weapon. Duration between injuries and death was few minutes and between death and postmortem examination was within 12 hours.

There were corresponding marks present on the shirt in respect of injuries No. 1 and 2 and also burn mark respecting injury No. 3. Injuries No. 4 to 6 were possible with barrel of fire arm. There were also blackening marks on the shirt against other injuries on the chest. Injuries No. 7 and 9 8 were possible by fall. Rigor mortis was present in all the four limbs, slightly less in lower limbs.

Three pellets taken out of the dead body were sealed in a bottle and shirt, chadra and Jutti (shoes) of the deceased were separately sealed in parcal . Both the parcels were taken into possession by the police vide memo Ex. PH. As per Forensic Science Laboratory reports Ex. PO and PO/1 the aforesaid gun of the accused was found in the working order and empty cartridges had been fired from the said gun and not from any other firearm and out of 30 live cartridges of .12 bore, 20 cartridges were found to be re loaded. The pellets taken out from the dead body were found to be part of .12 bore cartridges. Holes on kurta (shirt) of the deceased had been caused by led projectiles. Human blood was detected on the kurta (shirt) and Chaddra and traces of blood were detected on juttis (shoes). On completion of investigation, challan was presented in the Court against the accused and he was convicted and sentenced as stated above, by the Additional Sessions Judge, Sirsa.

To bring home the charge against the accused the prosecution examined as many as nine witnesses. Dr. M.R. Bishnoi (PW 1) deposed that on 20.4.1994 he sent ruqa Ex.PA to the police regarding arrival of dead body of Sukhdev Singh. Dr. Gurtej Singh (Pw 2) who conducted the postmortem examination on the dead body of Sukhdev Singh has given its full description as stated above.

Complainant Jaswant Singh (PW 3) and Mohinder Singh (PW 4) have both stated in detail about the occurrence. They have deposed that Jaswant Singh and Baaj Singh PWs met Mohinder Singh, Sukhdev Singh and Jang Singh on the turning of HSEB street in Ellenabad at about 9.15 a.m. They started talking. In the meantime, accused Jaswant Singh came from HSEB lane side with a single barrel gun and bag of cartridges. The accused said that he wanted to talk to Sukhdev Singh separately. Accordingly, the accused and Sukhdev Singh went a little aside by one or two paces from the other witnesses and then Jaswant Singh accused fired from his gun at Sukhdev Singh who was hit in the chest and fell down. Baaj Singh caught and secured the accused. Complainant caught the gun of the accused and Mohinder Singh took the bag of cartridges from him. In the meantime, a jeep driven by Jagir Singh came and was got stopped and Sukhdev Singh was sent in the jeep with Mohinder Singh and Jang Singh to the hospital whereas complainant Jaswant Singh and Baaj Singh took the accused to policestation. On reaching hospital Doctor declared Sukhdev Singh as dead and so Jang Singh went and informed the complainant about the death of Sukhdev Singh on way to PoliceStation. On reaching the policestation complainant lodged FIR Ex. PD. The accused was handed over to the police along with gun and bag of cartridges. An empty cartridge was found in the gun and 30 live cartridges were in the bag. Sketch of the gun was prepared. One empty cartridge and live cartridge were separately sealed and taken into possession by the Police along with licence Ex. P1 of the gun in the name of the accused.

Harbans Kaur (PW 5) is the mother of the deceased. She stated that on the day of occurrence the accused had come to her house and enquired about the whereabouts of her son Sukhdev Singh. She told the accused that Sukhdev Singh had gone to market. The accused had a gun and a bag of cartridges with him.

Inderjit Draftsman (PW 6) stated that he prepared the scaled site plan Ex. PG after visiting the spot at the pointing out of PWs. Jaswant Singh and Jang Singh. S.I. Ram Avtar (PW 7) stated that complainant Jaswant Singh and Baaj Singh brought the accused to the police station on 20.4.1994 and lodged FIR Ex. PD. The gun and empty cartridge found in it and 30 live cartridges in the bag of the accused were taken into possession in sealed parcels along with arms licence. Sketch of the gun was also prepared. Ram Avtar ASI further stated that he arrested the accused in this case and then went to the hospital and prepared inquest report Ex. PC and recorded the statements of the witnesses and sent the dead body of Sukhdev Singh for post mortem examination. Then he went to the spot and prepared rough site plan Ex. DA. On 21.4.1994 he took into possession the sealed parcel of pellets and another sealed parcel of clothes of the deceased given by the doctor.

Constable Bhoop Singh (PW 8) deposed that on 20.4.1994 he had taken the copies of FIR No. 63 as special report to Duty Magistrate at Sirsa and other officers. He delivered copy of the FIR Ex. PD to the Magistrate at Sirsa at about 2.00 p.m. He deposed that the started from the police station at about 11 a.m. and went on foot to Bus Stand, Ellenabad and then in the bus up to Sirsa and then on foot from Bus stand, Sirsa to the residence of the Duty Magistrate. ASI Balbir Singh (PW 9) stated that he partly investigated the case and recorded the statements of Harbans Kaur and Bhoop Singh constable.

PWs Baaj Singh and Jang Singh were given up as anunnecessary. Affidavits Ex. PJ of Satanarain head Constable, Ex. PK of Om Parkash Constable, Ex. PL of Balwan Singh Head Constable, Ex. PM of Jaipal Head Constable and Ex. PN of Rajpal Constable, were tendered in evidence to prove that there was no tampering with the sealed parcels. Forensic Science Laboratory reports mentioned above were also tendered into evidence.

The accused in his statement under section 313 Cr.P.C. denied all the incriminating circumstances put to him. He alleged that he was going from the office of HSEB, Ellenabad and in that lane away from the alleged place of occurrence, Sukhdev Singh caught him saying that Sukhdev Singh had heard that the accused had fired at his friend Sube Singh last night and so Sukhdev Singh would kill the accused with his own gun. Sukhdev Singh tried to snatch the gun and bag of cartridges of the accused and both of them scuffled. Sukhdev Singh was holding the gun from muzzle side and in the interpulling, the muzzle struck the abdomen of the deceased at many places and the gun also went off accidentally and hit Sukhdev Singh. The accused himself went to the police station to inform about the occurrence. The police detained him and fabricated three cases against him. No PW was present at the spot. FIR was ante dated. The gun and the cartridges were got sealed on that date. The police fired many shots from the gun in the police station and planted empty cartridges thereof on the accused.

No evidence was led by the accused in his defence although in the first instance he expressed his desire to lead defence evidence.

After hearing both the parties and going through the record, Additional District Judge, Sirsa convicted and sentence the appellant as stated above.

We have heard the learned counsel for both the parties and have gone through the evidence with their help.

The controversy in this case has narrowed down to a small compass. It is undisputed that Sukhdev Singh deceased died as a result of fire from the licenced gun of accused Jaswant Singh. The accused has alleged that it was an accidental fire as the deceased was trying to snatch the gun from him and in the course of interpulling of the gun between him and the deceased, the gun went off accidentally and the death of the deceased took place due to this accidental fire. It has thus, to be seen as to whether the death of deceased Sukhdev Singh is the result of intentional killing by the accused or it was due to an accidental fire.

Jaswant Singh P.W. 3 is the eye witness of the occurrence. He has deposed at the trial that the accused Jaswant Singh fired his gun at Sukhdev Singh which hit on his chest and he fell down. Baaj Singh caught and embraced the accused, and he caught hold of the gun of the accused. He, Mohinder Singh and the Jeep Driver put Sukhdev Singh in the jeep whereas Baaj Singh kept on holding the accused. Mohinder Singh, Jang Singh and jeep driver took Sukhdev Singh to hospital. He (Jaswant Singh) and Baaj Singh took the accused to police station. On way to police station at Big Chowk, Jang Singh had told him that Sukhdev Singh had expired. The accused, according to these witnesses, was caught redhanded and was handed over to the police. This statement of Jaswant Singh P.W. 3 is corroborated by another eye witness Mohinder Singh PW 4. They have fully supported the prosecution case.

Mohinder Singh PW 4 is an independent witness and he is not related to the deceased in any manner nor he has been shown to be inimical towards the accused. Jaswant Singh PW 3 though, is the maternal uncle of the deceased, but his relationship itself is not sufficient to discredit his sworn testimony at the trial. Moreover his statement has been fully corroborated by an independent eye witness Mohinder Singh P.W. 4. The sworn testimony of the independent witnesses is further corroborated by the medical evidence on the record.

Dr. Gurtej Singh PW 2 has deposed that the cause of death is due to fire arm injuries which were sufficient to cause death in the ordinary course of nature.

FIR has also been promptly lodged in this case and it reached the Illaqa Magistrate within a reasonable time. In fact, the accused was overpowered at the place of occurrence itself and was handed over to the police immediately thereafter. However, the main question to be determined in this case is as to whether Jaswant Singh accused had intentionally fired at the deceased Sukhdev Singh or it was an accidental fire. The evidence of the eye witnesses is unimpeachable and they have certainly stated at the trial that the accused had fired at the victim Sukhdev Singh and he had died due to that fire arm injury.

The learned counsel, in order to show that the death was due to accidental fire, has brought to our notice the injuries on the dead body particularly, injuries No. 4, 5 and 6. He submits that injuries No. 4, 5 and 6 could only be the result of a scuffle between the deceased and the accused and it was during the scuffle that the gun went off and it hit the deceased accidentally. These injuries, according to the learned counsel, had not been explained by the prosecution.

The learned counsel has further contended that the injuries No. 4, 5 and 6 were possible with the muzzle of the gun during interpulling of the gun as per defence, when even Dr. Gurtej Singh PW 2 has also stated in his cross examination that the possibility of injuries No. 4 and 6 being caused by interpulling the gun by the deceased and the assailant, muzzle side being towards the deceased, cannot be ruled out. The doctor has further stated that possibility of injuries No. 7 and 8 being caused by scuffle between the deceased and the assailant cannot be ruled out.

Injury No. 3 was a circular burn 2 cm x 2 cm. on the abdominal wall. This injury could possibly be caused with the hot muzzle of the gun, i.e. when the muzzle became not due to fire. Injury No. 3, thus, could be caused only after the firing and not prior to it. Injuries No. 4 and 5 which are semi circular abrasions on the abdominal wall, although not burns, could be caused after the firing and not prior to it. This fact is corroborated by the blackening marks on the shirt of the deceased corresponding to injuries No. 4 to 6, as stated by Dr. Gurtej Singh PW 2. The presence of blackening marks on the shirt thus shows that these injuries were caused after the firing when the muzzle was in the process of cooling. Thus, the possibility of the said injuries being caused due to alleged interpulling of the gun between the deceased and accused is ruled out because the deceased could not pull the gun after the firing.

As regard injuries No. 7 and 8, even the defence counsel was not serious in challenging that they could be possible due to the fall after the firing. The presence of injuries No. 3 to 6 thus, does not fit in with the defence version that they were caused because of interpulling and the scuffle between the accused and deceased before the firing.

We have seen the gun also. This gun could not go off accidentally because there is a hammer in the top of it and after firing the cartridge, it is not ready for use. One has to pull up the hammer back after applying considerable force and only then it is ready for being pressed to fire a shot. These injuries could be caused even in the process of overpowering the accused by the eye witnesses also.

The learned counsel has pointed out that according to PWs Jaswant Singh and Mohinder Singh, the fire was shot from a distance of 34 ft. only but according to the site plan Ex. DA, the distance was six paces i.e. about 15 ft. It could be due to some inadvertent error. S.I. Ram Avtar P.W. 7 was not specifically confronted about the said distance. Moreover, in the scaled site plan Ex. PG, the distance between the accused and the deceased at the time of firing has been correctly shows as 5 ft and it fully reconciles with distance given by the eye witnesses. It is significant to note that Inderjit Draftsman, PW 6 who prepared the scaled site plan Ex. PG, was not crossexaminted at all regarding the distance matter and thus, the distance shown in this plan was admitted as correct by the accused as stated above, it is in conformity with the statements of both the eye witnesses. Moreover, on the question of distance it has been ruled by the apex Court in Janak Singh v. State of U.P., 1972 Cr. LJ 1177, that witnesses could hardly be expected to mark precise distance. Estimated distance is bound to vary and nothing turns on such variations. The relevant observations of the apex court are reproduced as under:

"The third contention was the one which Mr. Dixit elaborated. His proposition was that the medical testimony contradicted the eye witnesses'' version and that contradiction rendered their account unacceptable. According to Dr. Ghosh''s evidence, none of the three entry wounds showed any blackening or tattooing. Obviously, therefore, the firing did not take place from the very close range but from some distance at least. No doubt, the three eye witnesses gave different distances ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the firearm was. They, therefore, gave an estimate of the distance at which he was from the victim. It is no wonder that the distances they deposed varied. Nothing can, therefore, turn on such variation."

In any case, some variation in the distance loses its significance when there is direct evidence of the eye witnesses. In the case in hand, the eye witnesses account of Jaswant Singh and Mohinder Singh, PW 3 and PW 4 respectively, is available and we find their version as credible and reliable.

We, thus, find that the defence version put up by the accused is neither probable nor is proved from any evidence on the file.

We, thus, relying upon the sworn testimony of the prosecution witnesses which is further corroborated by the medical evidence and the recovery of the licensed gun and the cartridges from the accused along with other relevant evidence on the file discussed above, find no infirmity with the judgment of the learned Additional Sessions Judge, Sirsa so far he has convicted the accused under Section 302 of the Indian Penal Code and Sections 25/27/24/59 of the Arms Act.

The reference made by the learned Additional Sessions Judge, Sirsa in his order of sentence dated 8.11.1995 about the accused having committed the murder of Brij Lal is irrelevant. Accused Jaswant Singh has been acquitted in that case vide judgment dated 27.5.1996 in Criminal Appeal No. 595DB of 1995.

After hearing the learned counsel for the parties, we do not find it such a case wherein the extreme penalty of death could be awarded to the accused.

We would, therefore, while upholding the conviction of the appellant Jaswant Singh, commute the death sentence on the charge under Section 302 IPC to that of imprisonment for life and a fine of Rs. 500/, in default of payment of which, rigorous imprisonment for two months. The sentence of imprisonment for two years under Section 27 of the Arms Act also remains. However, it is ordered that the sentence awarded in this appeal as well as vide judgment dated 29.5.1996 in Criminal Appeal No. 594DB of 1995 shall run concurrently.

The reference made by the learned Additional Sessions Judge, Sirsa is consequently declined.