Kulwant Singh vs State of Punjab

V.K. Bali, J.

The present case illustrates as to how sometimes heinous crimes are committed on trivial and insignificant issues. Appellant Kulwant Singh belonging to a disciplined police force being a Special Officer is stated to have killed his colleague Rupinder Singh on 20th of November, 1993 at 6.30 P.M. During the day time on the same day altercation had taken place between the two on wearing clothes of one another. Kulwant Singh was charged under Secttion 302 of the Indian Penal Code and Sections 24/54/59 of the Arms Act and on resultant trial was ordered to undergo R.I. for life and to pay a fine of Rs. 2,000/ in default whereof he was further ordered to undergo R.I. for one month under Section 302 of the Indian Penal Code vide order of conviction and sentence recorded by the Additional Sessions Judge, Kapurthala on Ist of September, 1994. It is against this order of conviction and sentence that Kulwant Singh has filed the present appeal.

The F.I.R. with regard to murder of Rupinder Singh came to be recorded on 20th of November, 1993 at 8.30 P.M. under Section 302 of the Indian Penal Code and Sections 25/54/59 of the Arms Act at Police Station Bholath. It was recorded on receipt of Ruqa which was sent by Sukhdeep Singh A.S.I. and was carried by Constable Malkiat Singh SPO No. 40R to the police station for registration of the case. ASI Sukhdeep Singh mentioned in his ruqa that on eventful day i.e. 20th of November, 1993, he alongwith SPO Rupinder Singh and SPO Amrik Singh after patrolling the area of Chowki Bhatha reached Chowk Bajaj Bhatha Bhatnura at the Naka on a bulletproof tractor at 6.30 P.M. where Head Constable Balkar Singh alongwith Constable Balwant Singh, SPO Kulwant Singh and PHG Sewa Singh were already holding a Naka. After alighting from the Bullet Proof tractor alongwith his companions, he asked SPO Rupinder Singh to call Balkar Singh to come to him. At this stage SPO Rupinder Singh went to call Head Constable Balkar Singh. Then, within his sight as also that of the officials present at Naka, SPO Kulwant Singh fired two shots with his .303 rifle at SPO Rupinder Singh. One shot hit Rupinder Singh SPO on his back and the second on his neck. On receiving fire shot injuries, SPO Rupinder Singh fell on the ground and died at the spot. He and Head Constable Balkar Singh caught hold of SPO Kulwant Singh alongwith ammunition immediately. On unloading his rifle, one empty cartridge and three live cartridges of 3 x 3 were recovered and one empty cartridge was found lying on the ground at the spot. Rifle bearing No. 120, Body No. 35723 and two empty cartridges of 3 x 3 were converted into separate parcels and sealed with his seal bearing letters S.S. along with three cartridges recovered from the magzine and 20 cartridges of 3 x 3 contained in the bandolier were taken into possession vide a separate memo and seal after use was handed over the Head Constable Balkar Singh. The cause of grudge as stated in the ruqa was that today at day time an altercation had taken place between both of them i.e. appellant and the deceased on wearing clothes of one another. After preparing his ruqa, Rupinder Singh sent the same through Constable Malkiat Singh SPO to Police Station for registration of the case. The record of case reveals that whereas occurrence leading to the death of Rupinder Singh took place at about 6.30 P.M. on 20th of November, 1993 at village Bhatha Bhatnura stated to be at a distance of 6 Kms from the police Station Bholath, F.l.R. came to be registered at Police Station on 20th November, 1993 at 8.30 P.M. Special Report with regard to the incident reached the Ilaga Magistrate at Kapurthala on the same day i.e. 20th of November, 1993.

The prosecution endeavoured to bring home the offence against the appellant by examining PW1 Dr. Anup Kumar, Medical Officer, Civil Hospital, Kapurthala who had conducted the postmortem on the dead body of Rupinder Singh. Following injuries were found on the dead body of Rupinder Singh :

1A. Lacerated oval wound 0.5 cm in diameter with inverted margins present on back 3 cm left to midline, 16 cm above upper and of natal cleft. Blackening around of wounds was present. Clotted blood seen around it. This was the wound of entry.

1B. Lacerated wound oval shaped 8 cm x 6 cm with everted margins present just above the umbilicus in the centre of abdomen, gut smeared with clotted blood coming out through this bone, on probing injury No. 1A communicates with lB and structures in between this tract lacerated and torn, direction of wound was upward and forward.

Lacerated wound 13 x 8.5 cm with everted and irregular margins present on front of chest involving midline area and right side of chest (adjacent) extending upwards involving front of neck (more so on right side) upto chin under line deep structures converted with clotted blood were seen. On removal clotted blood underlying muscles, large vessels were lacerated and torn. Fracture of mandible was seen. On further dissection deep structure line lacerated area surrounding the wound is blackened and edges of the skin of wound were slightly swollen.

Cause of death in the opinion of the doctor was due to shock and haemorrhage. Both injuries individually or collectively were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem and could be the result of firearms. Probable time that elapsed between injuries and death was immediate and between death and postmortem within 24 hours. In crossexamination the doctor stated that he could not tell the distance from which the firing was made. He could not deny the suggestion that in this case the firing was from very close range. PW2 Tarsem Singh who is the unfortunate father of the victim, identified the body of Rupinder Singh before the police and received the same after the postmortem was conducted. Sukhdeep Singh A.S.I., Police Station Phagwara, who on the relevant date was posted as Incharge of Police Post Bhatha as also Balkar Singh Head Constable No. 605 PW4 who too on the relevant date was posted at Police Post Chowk Bhatha under Police Station Bholath fully supported the prosecution version. Both of them were present at the scene of occurrence. Baland Singh SI, S.H.O. Bholath PW5 deposed with regard to part of the investigation conducted by him. In his crossexamination he stated that the witnesses of the occurrence were found there and they were interrogated by him about the facts of the case. Case diary was recorded with regard to that fact. There was a daily diary maintained at the police post chowk Bajaj. The entries made in the daily diary by the officials were checked by him. There was a report found recorded in the daily diary about the occurrence and copy thereof was not placed on the file. PW6 Malkiat Singh only stated that Kulwant Singh appellant was recruited as SPO by S.P. Headquarters Kapurthala on 12th of November, 1992 and he was posted at Police Station Bholath on 6th of December, 1992. PW7 Ramesh Chander deposed with regard to preparation of scale site plan Ex. PJ. PW8 Kewal Singh Constable deposed that on 20th of November, 1993 he was entrusted Special F.I.R. Ex. PF/1 which he took to the Ilaqa Magistrate and delivered him in the Court at 11.00 A.M. PW9 Manjit Singh Head Constable stated that he was posted as Addl. MHC at Police Station Bholath. Arms and Ammunition of Police Station Bholath remained in his custody. He used to distribute arms to the force going on duty. Kulwant Singh appellant was known to him. He was posted at SPO at Police Post Thatha on 11th of April, 1993 and on that day he was issued one rifle of .303 bore of Butt No. 120, Body No. 35723 and 25 live cartridges of that bore and an entry at Sr. No. 16 of Arms and Ammunition register maintained by him was made on which signatures of the appellant were obtained. He produced the relevant entry Ex. PN in Court. The Public Prosecutor tendered in evidence report of Serologist Ex. PQ and affidavits Ex. PP and PR of Balkar Singh MHC and Mohinder Singh Constable respectively. He also tendered in evidence report of the Chemical Examiner Ex. PK and report of the Forensic Science Laboratory Ex. PL and affidavits of formal witness Sakatar Singh MHC Ex. P.M., Balkar Singh HC Ex. PP and of Mohinder Singh Constable Ex. PR.

The appellant when examined under Section 313 of the Code of Criminal Procedure while denying incriminating material put to him further stated that all the allegations made against him were false. In fact he had objected to Balkar Singh Head Constable and other police officials for their indulging in criminal activities who used to forcibly extract money from public. On the day of occurrence when he remarked that as ASI was not listening to him he would appear before the S.S.P., he was assaulted by Balkar Sigh and other police officials and the shots fired at him by Sewa Singh accidentally hit the deceased as he got aside. He further stated that a false case has been registered against him to save the police officials. In defence he examined Skatar Singh MHC, Police Station Bholath as DW1. He stated that there was no entry in the daily diary about the occurrence of this case at Police Post Bhatha Bhatnura. He also stated that there was no entry of the quarrel of the appellant with any other official. There was no other daily diary maintained at the police post. However, in crossexamination he stated that the diary he had brought was maintained at the police post to note down the presence of the officials posted there and of their movements. As per report No. 11 of 20th of November, 1993 at 4.05 P.M. the appellant Balkar Singh HC, Balwant Singh Constable and Sewa Singh employee of Punjab Home Guards were deputed for the purpose of Nanak at Chowk of Bhatha Bajaj (Bhatha Bhatnura). On that day as per report No. 10 Sukhdeep Singh ASI Incharge of the police post along with other officials had left the police post for patrolling. The entries with regard to registration of the crime are made in the daily diary maintained at Police Station Bholath. Arms and ammunition was also disbursed to the officials in the police station.

On the strength of evidence, gist whereof has been given above, Mr. A.S. Sandhu, the learned counsel representing the appellant contends that the case against the appellant has been concocted as no entry in daily diary register was recorded with regard to incident at the police post as is sought to be made by the Investigating Officer. In the F.I.R. itself there is a mention that a ruqa had been sent to the police station but with regard to receipt thereof, there is no entry recorded in the daily diary register, clarifies the learned Counsel. In fact, the occurrence had taken place in the way and manner as suggested by the appellant so clearly spelled out in the statement made by him under Section 313 of the Code of Criminal Procedure. Simply with a view to shield the real offender and to involve the appellant herein, no entry was made in the daily diary register with regard to the receipt of ruqa sent by Sukhdeep Singh ASI, further contends the counsel. It is then contended by the learned Counsel that from the injuries suffered by the deceased Rupinder Singh it is clear that the fire was shot from the very close range whereas both the eyewitnesses have stated that at the time when appellant had fired shots, the deceased was at a distance of 57 or 810 yards. The ocular evidence is, thus, in sharp conflict with the medical evidence and therefore, the version given by the eyewitnesses has to be discarded. The learned Counsel further contends that even though it is made to look like that the Special Report reached the Ilaqa Magistrate concerned at 11.00 P.M. on 20th of November, 1993, the constable who had carried the Special Report clearly deposed that he had delivered it at 11.00 A.M. and that too in the Court of the Magistrate and not at his residence. The learned Counsel further contends that even though there is evidence on record that at the place of occurrence, there were many shopkeepers who had closed the shutters of their shops on hearing the two shots yet none was produced who could be independent witness of the occurrence and instead the prosecution chose to rely upon the interested witnesses. Mr. S.S. Dhaliwal, learned DAG, has joined issues with Mr. Sandhu, learned Defence Counsel on all the points as noted above.

We have heard the learned Counsel for the parties and with their assistance gone through the record. In our considered view none of the points raised by the learned Counsel for the appellant has any substance. In our considered view on the dint of evidence that has been produced on the record of this case, there is no substance in any of the points raised by the learned Counsel and therefore, this appeal deserves to be dismissed.

Sukhdeep Singh ASI while sending his ruqa on the basis of which formal FIR came to be recorded in the Police Station Bholath clearly mentioned that he was sending the same to the Police Station for registration of a case through Constable Malkiat Singh. Sukhdeep Singh appeared as PW3 and clearly stated in examinationinchief that ruqa Ex. PF was sent by him to Police Station where formal FIR Ex. PF/1 was recorded by Sakatar Singh MHC and he identified his signatures. It is true that in crossexamination he stated that when he reached back the police post, report of the occurrence was recorded by him in the daily diary but in view of this court the statement made by none other than Sakatar Singh DW1 examined on behalf of the defence apears to be an inadvertent mistake. It is clearly made out from the deposition of Sakatar Singh DW1 that diary is maintained in the police post to note the presence of the officials posted there and of their movements and that entries with regard to registration of the crime are maintained in the daily diary maintained at Police Station Bholath. Sensing perhaps that if the proper register with regard to crime was summoned from Police Station, Bholath, there must have been an entry with regard to receipt of ruqa, the appellant did not dare to summon the said register. That apart, it is not a case where any time was lost in registration of the case that might have provided a chance to the prosecution to coin its story with a view to pin down the appellant for the reason that the FIR with regard to the incident came to be recorded in the police station at 8.30 P.M., whereas the occurrence had taken place at 6.30 P.M. Even the special report with regard to the incident reached the Ilaqa Magistrate at 11.00 P.M. on 20th of November, 1993 at Kapurthala which is stated to be at a distance of 32 Kms. from Police Station Bholath. Added to it we have no reason at all to believe that the prosecution would involve the appellant and try to shield the real culprit. In so far as the contention of the learned Counsel with regard to incompatibility of the prosecution version being contradictory to medical evidence is concerned, we would only like to mention that it is not possible for the witnesses to give precise distance as to where the assailant and the accused was standing at the time of commission of crime. It may be mentioned here that contention of the learned defence Counsel is that since blackening has been found in two entry wounds on the dead body of the deceased, the shots from the rifle could not have been fired from more than four feet. As per observations made by N.J. Modi, "It is not easy to give a definite opinion about the distance from which a firearm was discharged." According to Taylor "no general rule can be laid down. Experiment must be done with the weapon and cartridges (or loading) similar to those which are alleged to have been used." Still further, the witness could not be arthmatically accurate while giving the distance. The possibility that they had not fixed both the points cannot be excluded. The Apex Court in Karnail Singh and others v. The State of Punjab, AIR 1971 SC 2119 held that, "before this Court it was argued that judging from the area of spread, the gun shots were probably fired from a distance of 36 yards, which would make the prosecution story inconsistent with the above theory. But this is a case where eyewitnesses gave a direct evidence of the crime. In view of what has been said about light, identification was not in doubt. That being so, the question of distance loses much of its strength." In yet another decision in State of Uttar Pradesh v. Sughar Singh and others, A.l.R. 1978 SC 191, it was held, "In view of such direct evidence of eyewitness of the firing being available on record some inconsistency relating to distance from which gun shots were fired between the evidence of medical expert and the eyewitnesses would be of no significance whatsoever." In the present case an eyewitness account has been given by PW3 Sukhdeep Singh and PW4 Head Constable Balkar Singh. They were put to a gruelling crossexamination but came totally unscathed from the same. Their evidence is consistent and worthy of credence. Small discrepancies, if any, between the ocular evidence and the medical in teeth of statements made by PW4 and PW5 who were absolutely independent witnesses loses all its significance. It shall further be noticed that there was no charring or singeing and there was only some blackening on some of the injuries sustained by the deceased. It cannot, thus, be said that from 2024 feet there cannot be any blackening. This contention of the learned Counsel is, thus, repelled. In so far as criticism of the learned Counsel of the prosecution in examining an independent witness is concerned, suffice it to say that PW3 and PW4 were independent witnesses. The appellant like the deceased was a colleague of these two witnesses. Nothing at all has been brought on record to show that they were inimical to the appellant or had some bias to involve the appellant in a false case. What kind of witnesses the shopkeepers would have been, who had not seen the occurrence as such and after report of the gun fire had put down shutters of their shops can well be imagined. It is true that the constable who carried the Special Report to the Ilaqa Magistrate stated that he had delivered the same in the Court of Magistrate at 11.00 A.M. but again that in our considered view is a mistake made inadvertently. We have seen the endorsement of the Magistrate on the Special Report which clearly shows that the same was received by him at his residence at 11.00 P.M. There is no dispute that Rupinder Singh died at about 6.30 P.M. Even the appellant admits this fact even though in his own way. How could there be a special report reaching the Magistrate on 20th of November, 1993 at 11.00 A.M.? What further clinches the issue against the appellant is that Manjit Singh Head Constable PW9 in his deposition which went totally unchallenged as he was not cross examined would clearly reveal that he had distributed the arms to the employees. He had given the rifle to the appellant of .303 bore of Butt No. 120 Body No. 35723 and 25 live cartridges and of which he had duly made an entry at Sr. No. 16 of the Arms and Ammunition register maintained by him. The rifle, it may be recalled, was recovered from the appellant at the spot. Ex. PL is the report given by Dr. S.N. Sharma, Assistant Director (Ballistics), Forensic Science Laboratory, Punjab. It has been clearly mentioned in the report aforesaid that two .303 inch cartridge case marked C/1 and C/2 contained in parcel ''A'' had been fired from .303 rifle No. 35723. Amongst others he had also received a parcel containing two .303 inch cartridge cases marked C/1 and C/2 in the laboratory. It may be recalled at this stage that PW3 Sukhdeep Singh who along with Balkar Singh had overpowered the appellant at the spot stated that the rifle was unloaded by him and from the chamber thereof one empty and three live cartridges were recovered. One empty was also recovered from the distance of 45 yards. The rifle was sealed by him in a separate parcel with his seal ''S.S''. The empties were sealed in another parcel with the same seal. There is also available connecting evidence when the sealed parcels were delivered to the Ballistic Expert who gave his report Ex. PL, reference whereof has been given above. It is, thus, proved that the appellant alone was issued a weapon of offence and it is from this rifle a fire was shot killing Rupinder Singh SPO.

As mentioned above there is no merit in this appeal which we accordingly dismiss. As a result of dismissal of this appeal, the order of conviction and sentence recorded by the learned Additional Sessions Judge, Kapurthala dated Ist of September, 1994 is upheld.