Russi Singh vs State of Punjab

Sat Pal, J.

This appeal is directed against the judgment dated 12.8.1994 passed by Additional Sessions Judge, Sangrur. By this judgment learned Additional Sessions Judge convicted appellant Russi Singh under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and to pay fine of Rs. 2000/. In case of default of payment of fine, he was ordered to undergo further RI for one year. Coaccused of Russi Singh namely Mahinder Singh and Dev Raj were, however, acquitted by the learned Additional Sessions Judge.

A case under section 302/148/149 Indian Penal Code and under Section 25/27 Arms Act was registered at Sunam Police Station on 14.12.1989 at 3.40 AM vide First Information Report Ex.PD, on the basis of the statement of PW2 Mellu Singh. The said statement of Mellu Singh was recorded by PW5 SI Amrik Singh on 14.12.1989 at 2.30 AM. The special report reached the Ilaqa Magistrate through constable Surjit Singh at 4.30 AM on 14.12.1989. PW2 Mellu Singh in his statement stated that on 13.12.1989 at about 7.30 PM, he was present at his house when his brother Hari Ram came to his house. Thereafter he and Hari Ram started going to the house of Hari Ram and when they reached in front of the house of Niranjan Singh PW3, Niranjan Singh was standing in his door. An electric bulb was emitting light on the corner of the house of Sukhdev Singh. Then he started talking with Niranjan Singh and his brother Hari Ram went ahead. In the meantime appellant Russi Singh armed with a DBBL gun, Bhagwan Singh @ Rabbi also armed with DBBL gun and Dev Raj armed with a Gandasa, Mahinder Singh armed with a kirpan and Kessar Singh armed with a Gandasa came there from the opposite side while hurling abuses loudly. He further stated that Bhagwan Singh @ Rabbi and his coaccused were saying, "Today we will go after giving land to Niranjan Singh." At this Hari Ram told them as to why they were quarrelling. Thereupon Russi Singh fired a shot from his DBBL gun at his brother Hari Ram which hit him on his left shoulder and he fell on the ground after taking turn. He and Niranjan Singh raised alarm "Marditta, Marditta" then all the five accused returned towards back side with their respective weapons while raising lalkara. Hari Ram expired at the spot. Mellu Singh further stated that motive for the murder was that Bhagwan Singh @ Rabbi and some other persons were illegally occupying about 50 acres of land of Harijans and the Harijans of the village had elected Niranjan Singh as President and he had been authorised to pursue the case before Tehsildar Sunam for getting the land vacated. He and his brother Hari Ram as also all other persons were also pursuing this case.

After registration of the case PW5 SI Amrik Singh, Investigating Officer along with other police officials and the complainant went to the place of occurrence and lifted bloodstained earth and took the same into possession vide memo Ex. PE. He also prepared the inquest report Ex. PC in respect of the dead body of Hari Ram and sent the same for post mortem through HC Gamdoor Singh. He also prepared the Rough Site plan Ex. PF with correct marginal notes, and recorded the statement of the witnesses and deposited the case property with the MHC.

PW1 Dr. H.S. Balli conducted the post mortem on the dead body of Hari Ram and found the following injuries on the dead body :

"30 lacerated wounds (20 of them with inverted margins and 10 with irregularly inverted margins) in an area of 9 inches in diameteres, lying on the upper part of front of chest on the left side adjoining lower lateral aspect of neck and front and lateral aspect of left shoulder. Those with inverted margins lying mainly on chest and neck. Those with irregularly inverted margins lie mainly on the shoulder. Their size vary from 0.4 cm to 0.5 cm each in diameter. Blood clots were present.

On dissection of the chest, there was tearing of upper onethird of left lung. Also poolling of blood in the left pleral cavity. On dissection of neck, there were haemorrhage in the underlying tissues. On dissection of left shoulder, there was poolling of blood around upper part of the humerus. Six pellets were found from the upper lobe of left lung, two were lying in the left pleral cavity, two were found from the neck."

In the opinion of the doctor, the cause of death was due to shock and haemorrhage as a result of firearm injury. All the injuries described were antemortem in nature and were sufficient to cause death in the ordinary course of nature.

On 20.12.1989 Inspector Durga Dass, the then SHO, Police Station Sunam arrested the accused and took into possession one 12 bore DBBL gun bearing No. 12276C/387 Ex. P10 alongwith two live cartridges Ex. P8 and P9 and the licence Ex. P1. After the completion of investigation, challan was filed in the court against all the five accused namely Russi Singh, Dev Raj, Mahinder Singh, Bhagwan Singh and Kessar Singh.

In support of its case, the prosecution examined six witnesses. PW1 Dr. H.S. Balli conducted the post mortem on the dead body of deceased Hari Ram. PW2 Mellu Singh and PW3 Niranjan Singh are the eyewitnesses of the occurrence. PW4 Smt. Anju Nagpal proved the licence of the gun Ex. P10 issued to Bhagwan Singh. PW5 SI Amrik Singh is the investigating officer of the case. PW6 Rajinder Kumar prepared the scaled plan Ex. PK.

In their respective statements recorded under Section 313 Cr.P.C., all the accused including appellant Russi Singh pleaded innocence and stated that they had been implicated falsely. Relying on the prosecution evidence, the learned Additional Sessions Judge convicted and sentenced the appellant and acquitted his coaccused Dev Raj and Mahinder Singh. The other coaccused Bhagwan Singh and Kessar Singh, however, died during the pendency of the trial of the case.

Mr. Ghai, the learned senior counsel appearing on behalf of the appellant submitted that there was an unexplained delay in lodging the FIR in the present case. He submitted that according to the case of the prosecution, the occurrence happened at 7.30 PM on 13.12.1989 whereas the statement of the informant PW2 Mellu Singh was recorded at 3.40 AM on 14.12.1989. He submitted that the distance between the place of occurrence and the Police Station is only seven miles and a person even going on foot could reach the police station within a period of 21/2 hours. He further submitted that there is no explanation for this delay in lodging the FIR.

The learned counsel further submitted that both the alleged eye witnesses PW2 Mellu Singh and PW3 Niranjan Singh were the interested witnesses. He submitted that PW2 is the real brother of the deceased and PW3 Niranjan Singh was the leader of the group having litigation with the accused party. He, therefore, contended that keeping in view the delay in lodging the FIR, it becomes suspicious as to whether the PW2 and PW3 were at all present at the time of occurrence.

The learned counsel further submitted that as per the statement of PW2 Mellu Singh, deceased Hari Ram after firearm injury fell on the ground and if he had fallen, some injury must have been caused on his body but in fact no injury other than the firearm injury was found on the body of the deceased.

The learned counsel further submitted that the gun alleged to have been used for the murder of the deceased was not recovered from the appellant and the gun recovered from the father of the appellant was not sent to the expert for examination. Further no empty pellet was recovered from the place of occurrence. He further submitted that one injury was found on the chest of the deceased and the second injury was found on the front of shoulder. He submitted that as per the statement of Dr. H.S. Bali, PW1, 20 of 30 wounds cause by pellets were having inverted margins and the remaining 10 wounds were having irregular inverted margins but the word "inverted" appears to have been inserted later on as the word "inverted" has not been shown in the diagram. He also submitted that as per the statement of PW2 the appellant had fired a shot from a distance of two yards but as per the post mortem report, the shot has speared over an area of 9" and as such the shot could have been fired from a distance of 9 yards. He further submitted that even no hole in the shirt of the deceased was proved. He, therefore, contended that the appellant could not be connected with the murder of the deceased.

The learned counsel further submitted that as per statement of PW2 Mellu Singh, lalkara was given by the accused only against Niranjan Singh (PW3) but no injury was inflicted on Niranjan Singh. Even no attempt was made to cause any injury to Niranjan Singh. He submitted that one independent witness namely Shri Ram was available but he has not been examined by the prosecution with some ulterior motive. Learned counsel further submitted that no document with regard to the allegation that the land of complainant party was in occupation of the accused, has been brought on record. He, therefore, contended that the story as given by the prosecution was improbable and as such the appellant should be given benefit of doubt and should be acquitted.

In the alternative, the learned counsel submitted that even as per the case of the prosecution, the accused had given a lalkara against Niranjan Singh and in the meanwhile deceased Hari Ram intervened and shot was fired on him. He submitted that these facts indicate that there was no intention on the part of the appellant to kill Hari Ram. He, therefore, contended that no case was made out under section 302 Indian Penal Code against the appellant and at best it could be a case of section 304 PartII Indian Penal Code. In support of this contention the learned counsel placed reliance on the following judgments of the Supreme Court :

Gyanendra Kumar v. State of U.P., AIR 1972 SC 502.

Hardev Singh and another v. State of Punjab, 1975 CLR 293.

Jawahar Lal v. State of Punjab, AIR 1983 SC 284.

Gurmail Singh and others v. State of Punjab, 1983(1) CLR 609.

Mr. Dhaliwal, learned Deputy Advocate General submitted that in the present case the motive for committing the murder of deceased Hari Ram has clearly been proved. In this connection he drew our attention to the statements of PW2 Mellu Singh, the relevant portion from which is reproduced herein below :

"About 50 acres of land that was given by the Government to the Harijans has been usurped by the accused and others. We are Harijans. Several days before this occurrence, we Harijans, had approached the Tehsil authorities through Niranjan Singh, who was our president for getting the Shamlat land vacated. I and Hari Ram deceased were pursuing those proceedings in the tehsil office against the accused and others regarding vacation of shamlat land and for this grouse, the accused had committed the murder of Hari Ram."

He also referred to the statement of PW3 Niranjan Singh and submitted that even this witness in his examinationinchief had stated that government had set apart certain land for the Harijans for taking possession of which he was elected as President by the aggrieved party and was facing the proceedings for getting the land of Harijans and deceased Hari Ram was also pursuing the litigation for restoration of land to the Harijans.

With regard to the alleged delay in lodging the FIR, learned Deputy Advocate General submitted that the occurrence happened at 7.30 PM on 13.12.1989 and the distance between the place of occurrence and police station is 7 miles. He submitted that the recording of statement of PW2 Mellu Singh commenced at 2.30 AM and was concluded at 3.40 AM and thus there was no delay which could be considered as fatal to the case. He said that even special report was delivered at the residence of the Ilaqa Magistrate promptly at 4.30 AM. In this connection he referred to the statement of PW2 Mellu Singh and submitted that this witness in his crossexamination had clearly stated that he went to several persons who had vehicles of various kinds but they did not come out of their house to listen to him and it was in these circumstances that he could report the matter to the police at 2.30 AM on 14.12.1989.

The learned counsel further submitted that only one firearm injury was found on the dead body of the appellant and the words "inverted" were not inserted subsequently. In fact PW1 Dr. H.S. Balli in his crossexamination has clearly explained that these words were inserted before signing the report. He further submitted that an injury can be partly averted and partly inverted and there was no reason for the doctor to insert any word after completion and signing of the report. As regards the distance from which the shot was fired, learned counsel submitted that it depends on the length of the barrel of a gun. He further submitted that there was no question of recovery of the gun from the appellant as the gun was duly recovered from his father Bhagwan Singh.

With regard to the alternative argument of the learned counsel for the appellant that the present case was covered under section 304 PartII Indian Penal Code, the learned Deputy Advocate General submitted that the present case was squarely covered by Clause thirdly of section 300 IPC and as such there was no ground to interfere with the impugned judgment.

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. In the present case, it is not disputed that the occurrence happened at 7.30 PM on 13.12.1989 and the distance between the place of occurrence and the police station is seven miles. From the evidence on record, it is also evident that the recording of statement of PW2 Mellu Singh commenced at 2.30 AM and was concluded at 3.40 AM and the special report was delivered at the residence of Ilaqa Magistrate at 4.30 AM. PW2 has further stated in his cross examination that he went to several persons who had vehicles of various kinds but they did not come out of their houses to listen to him and it was in these circumstances that he could report the matter to the police at 2.30 AM on 14.12.1989. The explanation given by PW2 appears to be satisfactory as in the night of winter season and particularly in those days of terrorism in Punjab, no person would have agreed to take PW2 to police station in his car. Keeping in view the aforesaid facts we do not find any delay in lodging the FIR. In this connection reference may be made to a judgment of the Supreme Court in Ram Kumar v. State of Haryana, AIR 1995 SC 280.

We also do not find any substance in the contention of the learned counsel of the appellant that no reliance should be placed on the statements of PW2 Mellu Singh and PW3 Niranjan Singh as they were the interested witnesses. After going through the statements of these eye witnesses carefully, we find that there is no inconsistency on the material points and their presence at the place of occurrence cannot be doubted. Both these witnesses are consistent in proving the fact that the appellant was armed with double barrel gun and he called bad names to PW3 Niranjan Singh as he was spearheading the Harijans for getting back their lands which have been usurped by the accused. Both are again consistent in their statement that deceased Hari Ram objected to the accused against calling bad names to PW3 Niranjan Singh and at this the accused shouted to deal first with Hari Ram and thereafter appellant Russi shot one fire from his rifle hitting on the left shoulder of Hari Ram. Further as stated herein above the FIR in this case was also lodged promptly and there was no delay in delivering the special report at the residence of Ilaqa Magistrate. Keeping in view these facts, the evidence of PW2 Mellu Singh and PW3 Niranjan Singh, who are eye witnesses, cannot be discarded merely on the ground that they are interested witnesses. We do not find any merit also in the contention of the learned counsel of the appellant that the word "inverted" was inserted subsequently by PW1 Dr. H.S. Bali. From the evidence of this witness, we find that PW1 in his crossexamination has clearly explained that these words were inserted before signing the report. We do not find any substance also in the contention of learned counsel of the appellant that Shri Ram who was an eye witness has not been examined by the prosecution with some ulterior motive. From the records, we find that Shri Ram was not the eye witness and as per statement of PW2 (which is the basis of the FIR) Shri Ram came out of his house when the appellant had already fired the shot. In any case, two eye witnesses PW2 Mellu Singh and PW3 Niranjan Singh have been examined by the prosecution in this case. Since we have come to the conclusion that PW2 and PW3, who are eye witnesses, were present at the place of occurrence and their evidence inspires confidence, we are of the opinion that the distance from which the shot was fired does not remain of much significance.

As regards the alternative arguments submitted by the learned counsel of the appellant, from the evidence on record we find that at the time of occurrence deceased Hari Ram alongwith his brother PW2 Mellu Singh were near the house of PW3 Niranjan Singh when appellant Russi alongwith other accused came there loudly calling bad names to Niranjan Singh and intended to kill Niranjan Singh as Niranjan Singh being President of the local Harijans was spearheading their movement for getting back possession of their lands which have been usurped by the appellant and others. At this deceased Hari Ram had objected to the accused against calling bad names to Niranjan Singh. Since Hari Ram intervened and protested to the appellant for giving abuses to their leader Niranjan Singh, appellant Russi fired a shot on him which caused his death. These circumstances make it clear that the appellant would not have intentionally shot the deceased with a view to kill him. On the contrary he shot the deceased on account of some grave and sudden provocation. We are, therefore, of the considered view that the aforesaid circumstances warrant the conclusion that the offence committed by the appellant would not attract clause thirdly of Section 300 IPC and the conviction under section 302 Indian Penal Code cannot be sustained. The case against the appellant would be covered under Section 304 PartI Indian Penal Code and accordingly he must be convicted and sentenced for the said offence. The view we have taken finds support from the judgments of the Supreme Court in the case of Hardev Singh (supra) and in the case of Radha Kishan v. State of Haryana, AIR 1987 SC 768.

For the reasons recorded herein above, we modify the conviction of the appellant from Section 302 Indian Penal Code to Section 304 Part I Indian Penal Code and sentence him to suffer Rigorous Imprisonment for ten years and to pay a fine of Rs. 30,000/. In case of default of payment of fine, the appellant shall undergo further Rigorous Imprisonment for three years. We further direct that out of the amount of fine recovered, a sum of Rs. 25,000/ would be paid to the widow of deceased Hari Ram.