Milap Singh vs State of Punjab

J.B. Garg, J.

Milap Singh and Rajwant Singh sons of Avtar Singh have been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life by Mrs. Bakhshish Kaur, Sessions Judge, Gurdaspur, for having caused the death of Satwinder Singh, Harpal Singh, Sukhwant Singh, Dalbir Kaur and also Karam Singh on each of the count and also sentenced to Milap Singh to pay a fine of Rs. 1000/ for the murders of Satwinder Singh, Dalbir Kaur and Harpal Singh and in default of payment of fine to undergo R.I. for six months. He was also to pay a fine of Rs. 500/ for the murders of Harpal Singh, Karam Singh and Sukhwant Singh. In default of payment of fine to undergo R.I. for one month. Rajwant Singh was sentenced to pay a fine of Rs. 500/ for causing the murders of Satwinder Singh, Dalbir Kaur, Karam Singh and Sukhwant Singh. In default of payment of fine to undergo R.I. for one month. They have also been convicted under Section 307/34 of the Indian Penal Code for having caused an injury to Gurwinder Singh, and sentenced to undergo R.I. for 7 years and to pay a fine of Rs. 1000/ each. In default of payment of fine to undergo six months rigorous imprisonment. Aggrieved against it the present appeal has been attempted. It may also be mentioned here that Balwinder Singh and Himmat Singh both sons of Mohinder Singh, the coaccused, who were also tried, were acquitted.

Briefly the story of the prosecution is that at about 9.00 p.m. on 4.7.1990 Milap Singh and Rajwant Singh sons of Avtar Singh armed with AK 47 rifles together with Balwinder Singh and Himat Singh (the two acquitted accused) and three more persons (not named in the FIR) came to the residential house of Tek Singh, which is in the agricultural field in village Chahal Kalan and they made an inquiry as to where was Satwinder Singh constable and Lakhbir Singh one of the sons of Tek Singh replied that his brother Satwinder Singh had not reached home. The accused then started indiscriminate firing causing the death of Sukhwant Singh, Harpal Singh, Satwinder Singh and their mother Dalbir Kaur as well. Besides this they also caused the death of Karam Singh a Mazhbi labourer who was lying asleep on a cot nearby. The occurrence was seen by Tek Singh the father and also Gurwinder Singh aged 6 or 7 years the son of Lakhbir Singh complainant and grandson of Tek Singh. Besides Lakhbir Singh the occurrence was seen by Tek Singh the father and Surinder Kaur the wife of Sukhwant Singh and was rendered a widow as a consequence of this occurrence. Lakhbir Singh then proceeded for lodging a report. Shri Ajaib Singh Inspector of Police Station Sadar Batala could be contacted at Chowk Umarpura after midnight at 2.00 a.m. and he recorded the statement of Lakhbir Singh complainant and it was sent to Police Station Sadar Batala through Major Singh Head Constable where the FIR was recorded at 2.55 a.m. on 5.7.1990, because the distance between the place of occurrence and the Police Station was scarcely 5 kms. The special report was delivered to the ilaqa Magistrate at Batala at 10.30 a.m. on 5.7.90. The motive for the offence was old enmity inasmuch as in 1972 there was a dispute in respect of the adjoining land to that of Tek Singh, which Mohinder Singh father of Balwinder Singh and Himat Singh had purchased and Mohinder Singh and Tek Singh were inimical with each other. The sister of Milap Singh and Rajwant Singh the two accused who are the present appellants was married to Mohinder Singh who had purchased the land adjoining to that of Tek Singh. Mohinder Singh was allegedly murdered in 1972 by Tek Singh and his sons Sukhwant Singh, Bhagwant and Lakhbir Singh and as a consequence of the trial Tek Singh and Sukhwant Singh were sentenced to imprisonment for life whereas the other coaccused were acquitted. It may also be mentioned here that the marriage of Satwinder Singh a son of Tek Singh was to be performed after a few days and in this regard the Akhand Path was likely to start the next day i.e. 5.7.90. After reaching the village and the place of occurrence along with Lakhbir Singh, the complainant, the inquest reports were prepared by the investigating officer in respect of all the dead bodies. A rough site plan was also prepared. The bloodstained earth was also taken into possession from five different spots from the place of occurrence and converted into separate sealed parcels. As many as 27 empties of AK47 were also lifted and collected and converted into sealed parcels. The dead bodies were despatched to Civil Hospital, Batala for the purpose of postmortem examination. Milap Singh and Rajwant Singh were arrested on 17.7.1990.

PW1 Dr. Gurpal Singh, Medical Officer, Civil Hospital, Batala, examined Gurwinder Singh son of Lakhbir Singh aged about 5 years and the injury found on his person was as under :

"Healed and infected wound on the left knee joint on its lateral part. Wound was muscle deep. It was partially healed."

The Medical Officer opined that since the wound was infected it could be 10 or 12 days old. However, there was no clear indication if the injury was caused by a fire arm.

PW4 Dr. Vijay Kumar Mehra, Medical Officer of Civil Hospital, Batala conducted postmortem examination on the dead body of Harpal Singh son of Tek Singh, aged 22 years and the injuries found on his person were as under

A lacerated penetrated wound 3/4 cm x 3/4 cm on the right side of the chest, 4 cm. lateral to the right nipple. The margins were inverted. Skin blackened.

A lacerated wound 3 x 31/2 cm on the lateral wall of the low chest on the left side in posterior auxiliary line 15 cm above the posterior superior iliac spine. Margins were averted.

The injuries on the person of Sukhwant Singh son of Tek Singh aged 32 were as under:

A lacerated penetrated wound on right side of chest in the anterior auxiliary fold measuring 3/4 cm x 3/4 cm. Margins were inverted. Skin blackened.

Lacerated wound 2 cm x 21/2 cm on the left side of the neck in the anterior triangle 11/2 cm above the clavicle medical end. The margins were averted.

Lacerated penetrated wound 3/4 cm x 3/4 cm on the left upper arm on the anterior lateral aspect 8 cm below shoulder, Margins inverted. Skin blackened.

Lacerated wound 21/2 cm x 3 cm on the lateral aspect of left upper arm 6 cm below shoulder. Margins were averted.

The injuries on the person of Satwinder Singh son of Tek Singh aged 24 were as under:

A lacerated penetrated wound 3/4 cm x 3/4 cm on the right side at chest just below the medial end of clevical. The skin was blackened. Margins inverted.

A lacerated wound 3 cm x 21/2 cm on the left side of back of chest. 2 cm above the inferior angle of scapula. Margins averted.

A lacerated penetrated wound 3/4 cm x 3/4 cm on the back 5 cm above the left posterior superior iliac spine on the left side. Margins inverted. Skin blackened.

A lacerated wound 3 cm x 21/2 cm on the anterior abdominal wall 6 cm above the posterior superior iliac spine 6 cm lateral to the mid line. Margins averted.

The injuries on the person of Dalbir Kaur wife of Tek Singh, aged 55 were as under :

A laceratedpenetrated wound 3/4 cm x 3/4cm on the anterior abdominal wall on the left side, 7 cm above the anterior superior iliac spine. The margins were inverted. Skin blackened.

A lacerated penetrated wound I cm x 11/2 cm on the anterior abdominal wall, 6 m below the umbilicus in the midline. Margins were inverted. Skin blackened.

A lacerated wound 2 x 21/2 cm. on the back on right side over the right angle. Margins were averted.

A lacerated wound 21/2 cm x 31/2 cm on the back lateral to midline. On the left side. Margins averted.

The injuries on the person of Karam Singh Mazbi aged 45 an employee of Tek Singh were as under :

A lacerated penetrated wound 3/4 x 3/4 cm on the back of abdomen 3 cm from the midline and 4 cm from the posterior superior iliac spine on the left side the margins were inverted. Blackening of the skin was present.

A lacerated wound 3 cm x 4 cm on the anterior abdominal wall on the left side 3 cm from the midline and 4 cm below umbilicus. Margins were averted. A loop of gut was coining out.

A LPW 3/4 x 3/4 cm on the left side of the head on the occipital bone 21/2 cm above and behind the left ear pinna was present. Margins were inverted. Skin blackened.

A lacerated wound 2 x 3 cm over the right side of the head on occipital bone 2 cm lateral to the right pinna. margins averted. Brain matter was coming out of the wound.

The Medical Officer specially opined that the injuries were sufficient in each case to cause death in the ordinary course of nature. The Medical Officer was not subjected to any crossexamination whatsoever.

PW2 Tek Singh the father as well as the husband who was present in the house at 9.00 p.m. on 4.7.1990 described the entire occurrence in the trial Court and told that the accused first of all made an inquiry about Satwinder Singh and thereafter, Milap Singh started firing at Satwinder Singh and when his wife Dalbir Kaur stepped forward she was also fired upon by Milap Singh accused. Satwinder and Dalbir Kaur died at the spot. When Harpal Singh tried to run away he was also fired upon by Rajwant Singh causing the death of Harpal Singh there and then. Balwinder Singh and Himmat Singh also fired upon Sukhwant Singh who also died. Karam Singh Mazhbi also received the fire shot while he was sleeping aside and died there and then. The grandson Rimpi (known as Gurwinder Singh) also received a bullet injury on his right knee. In crossexamination he explained that he concealed himself behind the pillar at the time the occurrence took place. He denied a suggestion that militants used to visit his house and they had been pressing that his son Satwinder Singh should resign from the police where he was a constable. He did not know if Daljit Singh son of lqbal Singh of his own village and Kulwant Singh of village Verka were terrorists. Of course, Bhapi, Gurmukh Singh and Baldev Singh constables of his village were killed by the militants because they did not resign from the Punjab Police. In all about 20 or 25 persons of his village were killed in those days. He could not tell as to what was the exact total number of shots fired by the accused.

PW3 Surinder Kaur the widow of Sukhwant Singh son of Tek Singh who was present in the house at the relevant time in the night and was working in the kitchen also saw the entire occurrence and supported it in the trial Court.

PW5 Shri Ajaib Singh Inspector received information through B.S.F. Post of Umarpura that as many as five persons have been done to death in village Chahal Kalan and it was thereafter that along with Shri Ajit Singh A.S.I. he proceeded towards the place of occurrence and on the way he recorded the statement of Lakhbir Singh complainant and despatched it for formal registration of the case and himself proceeded to the place of occurrence together with the complainant as described above.

PW6 Subhash Chand constable of Police Station Sadar Batala delivered the special report to llaqa Magistrate at 10.30 a.m. on 5.7.1990. He did try to contact the Ilaqa Magistrate during the night but it could not be possible. PW9 Shri Satish Chander Draftsman of Batala prepared the siteplan Ex. PX.

The statement of Milap Singh son of Avtar Singh aged 45 of village Chahal Kalan recorded in the trial Court was as under :

"I am innocent, The militants used to visit the house of Tek Singh PW and they were pressing hard upon Satwinder Singh to resign from the job as Satwinder Singh was in Police Department. Sukhwinder Singh alias Pappu, Charan Singh and Darshan Singh, dreaded terrorists owned the responsibility for the murder of family members of Tek Singh P.W. in order to take revenge against him due to previous enmity. I have been falsely implicated in this case. Tek Singh was instrumental in the arrest of Daljit Singh and for that reason the militants wanted to take revenge against him. Sarabjit Singh Uppal, a dreaded terrorist also used to visit the house of Mohinder Singh of village Basarpur, a relation of Tek Singh P.W. It was an act of terrorists. I have been falsely implicated."

The statement of accused Rajwant Singh son of Avtar Singh aged 43 was in tune with that of the coaccused referred to above.

DW1 Shri Jaswinder Singh a representative in the advertisement branch of the Newspaper ''Ajit'' with the help of DW3 Amir Singh Press Correspondent of the aforesaid newspaper brought on record some extracts Exs. DB and DD from the newspaper dated 6.7.90, 10.7.90 and 12.7.90 where there was a report that extremists had caused the death of four persons of a family.

DW2 Sushil Kumar Clerk of the Office of S.D.M., Batala told in the trial Court that a sum of Rs. 20,000/ was paid to Jagir Kaur widow of Karam Singh deceased as a kind of compensation being the victim of terrorists.

Shri Mann the learned counsel for the appellants has pointed out that the occurrence took place at 900 p.m. in village Chahal Kalan and it was scarcely at a distance of 5 kms from Police Station, Sadar Batala which is the distance mentioned in the appropriate column of the FIR yet the special report was delivered to the Ilaqa Magistrate at 10.30 a.m. on 5.7.1990 at Batala and this delay should be considered significant. On the other hand, the learned Deputy Advocate General has explained that the occurrence did take place at 9.00 p.m. but it had resulted in the death of three brothers of Lakhbir Singh and his own mother the complainant must have left the premises with the courage of proceeding to Batala for lodging the report and at Chowk Umarpura he was able to contract Ajaib Singh Inspector at 2.00 a.m. where his statement was recorded and it was despatched to Police Station, Sadar where it was given the formal shape of an FIR at 2.55 a.m, PW6 constable Subhash Chander explained that the special report was entrusted to him during the night but there was no response from the residence of the Ilaqa Magistrate at Batala in the night and that is why he was able to deliver it at 10.30 a.m. on the following morning, It is quite probable that in July, 1990 as stressed by the learned Deputy Advocate General Punjab the prevailing conditions in Punjab were not normal for quick delivery of the special report at the required destination.

The learned counsel for the appellant has laid great stress on his contention that the assailants were totally unknown terrorists and Satwinder Singh a brother of the complainant was the main target because he was a police constable and he did not resign from the police department which was the admitted desire of the terrorists in those days. May be that Satwinder Singh was enemy number one of the assailants yet once they had entered the premises of the complainant they did not spare Satwinder and several other members of the family who came forward and who could easily be the target of their attack. Besides this it was not a case that Satwinder Singh alone was the target. There was old enmity and land disputes, existed since 1972. In the earlier occurrence the relations of complainant had caused the death of Mohinder Singh with whom the sister of the present two appellants was married. It is a different matter that Tek Singh PW one of the enemies of the assailants escaped unhurt in this occurrence because he succeeded in concealing himself behind a pillar. The presence of Tek Singh PW at that hour of night in the residential premises was natural.

The mere fact that Lakhbir Singh the complainant son of Tek Singh the important eyewitness on whose statement the FIR was recorded could not come as a witness on account of his own death before he could be examined as a witness in the trial does not weaken the story of the prosecution. As seen above the presence of Tek Singh, his father and also of Surinder Kaur rendered widow in this occurrence who was wife of Sukhwant Singh another brother of the complainant was most natural. They were also examined by the investigating officer under Section 161 of the Code of Criminal Procedure and their statements recorded at the earliest. This PW3 Surinder Kaur has specifically deposed in the trial Court that Milap Singh accused fired upon Satwinder Singh and her motherinlaw Dalbir Kaur who died at the spot. She further told that when Harpal Singh tried to run he was shot at resulting in his death by Rajwant Singh. In reply to a couple of specific questions she explained that she was in the open kitchen and she saw the occurrence therefrom. This goes to show that Tek Singh PW2 the father and Surinder Kaur PW3 the widow of Sukhwant Singh and daughterinlaw of aforesaid Tek Singh have described the occurrence in its entirety and these were the witnesses whose presence was natural.

The learned counsel for the appellants has referred to the original recovery memo Ex. PN pertaining to bloodstained earth and Ex. PO pertaining to taking into possession of 27 empty cartridges of AK47 which was prepared on 5.7.90 and that these documents do not contain the names of the accused which is the usual practice that a title of the case as to who have been arraigned as the accused does not find mention and this may go to show that in the beginning the police was investigating the case considering that the assailants were unknown terrorists and had they known the names of the assailants they would have mentioned in the title of these memos. Besides this, in Report No. 31 dated 5.7.90 in the Roznamcha of Police Station, Sadar, Batala Ex.DA there is a mention that five persons have been gunned down by the militants in village Chahal Kalan and on receipt of this information Shri Ajaib Singh Inspector was proceeding to the village and had the police known that specific persons were the assailants the details would have found mention in this report Roznamcha. This contention as such does not carry weight in the circumstances of the case. May be that Shri Ajaib Singh Inspector started from the Police Station that there has been some occurrence considering it to be one initiated by the terrorists but when complainant Lakhbir Singh met him the actual position found was that which has been described in the trial Court by Tek Singh and Surinder Kaur.

Shri Mann has vehemently argued that once the evidence of these two witnesses Tek Singh and Surinder Kaur has not been relied upon in totality by the learned trial Court and Balwinder Singh and Himmat Singh two out of the four have been acquitted, the present two appellants were also entitled to benefit of doubt. It appears that it was only as a matter of abundant precaution that the learned trial Court gave ''benefit of doubt'' to Balwinder Singh and Himmat Singh. In Ranbir and others v. State of Punjab, AIR 1973 SC 1409 it was observed that witnesses for the prosecution are prone to exaggerate the culpability of the actual assailants as also to extend the participation in the occurrence to some possible innocent members of the opposite party as well. On our inquiry the Deputy Advocate General Punjab told that there was no appeal against the acquittal of Balwinder Singh and Himmat Singh. In the case now in hand, after anxious care and caution we are of the view that it was not that unknown terrorists came to the premises of the complainant resulting in the death of a total number of five persons.

The mere fact that Jagir Kaur the widow of Karam Singh labourer received compensation of Rs. 20,000/ on 20.8.90 from the office of the Sub Divisional Magistrate, Batala as described by DW2 Shri Sushil Kumar a clerk of the aforesaid office does not weaken the case of the prosecution.

As regards the injury received by Gurwinder Singh alias Rimpi who was medically examined about seven weeks after the occurrence and PW1 Dr. Gurpal Singh opined that there was no clear indication that the injury was a result of a firearm the conviction recorded under Section 307 of the Indian Penal Code against the appellants is hereby set aside.

Thus, in view of the evidence and reasons discussed above, the conviction of the two appellants under Section 302/34 of the Indian Penal Code for having caused the death of Satwinder Singh, Harpal Singh and Dalbir Kaur, is hereby affirmed and the period of imprisonment and quantum of fine imposed on appellants by the learned trial Court enumerated above is affirmed and appeal stands disposed of.