Uttam Singh vs State of Punjab

Swatanter Kumar, J.

Uttam Singh and two other accused have preferred the present appeal against the judgment and order of sentence dated 9.11.1994 passed by the learned Additional Sessions Judge, Amritsar wherein the learned Additional Sessions Judge convicted appellantAvtar Singh for an offence under Section 302 of the Indian Penal Code and Uttam Singh and Hardeep Singh appellants for an offence under Section 302 read with Section 34 of the Indian Penal Code and sentenced all of them to undergo rigorous imprisonment for life and fined Rs. 1,000/ each, in default thereof to further undergo rigorous imprisonment for a period of three months.

All the three appellants along with one Mukhtiar Singh (who was declared as Proclaimed Offender during the period of investigation), were challaned by the police for committing murder of Ram Singh. The prosecution version is that on 20.5.1990 at about 7.00 a.m. Thakur Singh along with Jagtar Singh, Mukhtiar Singh, Hazara Singh and Ram Singh were going to their fields on a tractor for thrashing wheat. When they reached near the fields of Hardeep Singh son of Gopal Singh, Avtar Singh and Mukhtiar Singh armed with .12 bore double barrel gun, Hardeep Singh armed with a pistol and Uttam Singh had bandolier containing cartridges came from their fields. Uttam Singh raised a lalkara saying that the complainant party was together and none should be permitted to go away. At this, Hazara Singh stopped the tractor immediately so that the complainant party may flee away. Avtar Singh accused then fired at them, though they were able to jump away from the tractor, but the shot fired by Avtar Singh hit Ram Singh in his testicles and Ram Singh fell down on the ground. Pellets of this fire also hit at the legs of Thakar Singh. Other coaccused also started firing with their respective weapons. Hardeep Singh and Mukhtiar Singh also fired towards the complainant party. Ram Singh died at the spot. After causing injuries, all the accused fled away with their respective weapons. Hazara Singh and Mukhtiar Singh (of the complainant party) remained by the side of the deadbody of Ram Singh. Thakar Singh along with Jagtar Singh went to the police station to lodge a report. Sub Inspector Surinder Singh met them near bus stand Janarai, who recorded the statement Ex.PA of Thakar Singh (PW1) and on the basis of which F.I.R. Ex.PA/1 was recorded.

The occurrence took place at 7.30 a.m. on 20.5.1990. The statement of P.W.1 was recorded at 8.55 a.m. at the bus stand and the FIR was registered at 9.55 a.m. at Police Station Sharholi which is at a distance of approximately 10 km. In furtherance to this FIR which was recorded without loss of any time, special report was sent to the Magistrate at 11 a.m. The investigation of the case was conducted by Sub Inspector Surinder Singh who was examined as P.W.10 in the trial Court. The Investigating Officer collected bloodstained earth which is Ex.PC. Cartridges were also recovered from the place of occurrence and were sealed and exhibited during the course of trial as Ex.PD. The Investigating Officer also prepared rough site plan Ex.PK of the place of occurrence. Postmortem report of the deceased was prepared by Dr. Ram Singh P.W.4 and the report has been exhibited as PE. Report of ballistic expert Ex.PN confirmed that empties which were recovered from the place of occurrence were fired from the licensed gun Ex.P9 of Avtar Singh which was recovered during the investigation upon disclosure statement of Avtar Singh having been recorded by the Investigating Officer.

The contention of the learned counsel for the appellants is that the P.Ws. more particularly eye witnesses P.W.1, P.W.2 and P.W.5 are interested witnesses and they have falsely implicated the accused. The role attributed to them is totally improbable. The previous animosity between the parties and the fact that the appellants except Avtar Singh were acquitted by the Court of competent jurisdiction in an earlier case where Narain Singh son of P.W.1 was murdered and the accused except Avtar Singh were tried for an offence under Section 302 of the Indian Penal Code. The contention of the learned counsel is that there is definite motive on the part of the complainant party to falsely implicate or include the entire family. The argument is sought to be substantiated by the fact that there is no medical evidence to prove on record that the eye witnesses had suffered any injuries themselves and these eye witnesses ought to be disbelieved in their version and more particularly as far as the involvement of other accused except Avtar Singh is concerned. On the other hand, the learned counsel appearing for the State has contended that eye witnesses account given by three eye witnesses is true and correct version and is fully corroborated by link evidence. According to the learned counsel for the State, the case is fully established beyond reasonable doubt and there is clinching evidence as far as Avtar Singh is concerned. In regard to other accused, his submission is that there is no reason why these eye witnesses should be disbelieved. According to him, even these eye witnesses were subjected to medical examination and their medicolegal reports along with x rays were placed on record of the trial Court. In fact it is on that basis that the accused were even charged for an offence under Section 307 of the Indian Penal Code. Learned counsel for the State has fairly admitted that medicolegal reports of eye witnesses were not exhibited nor the doctor concerned was examined before the trial Court and consequently these reports have only been marked as A, B, C and D respectively.

We have given our considered thought to the submissions of the learned counsel for the parties. P.W.1 Thakar Singh, P.W.2 Jagtar Singh and P.W.5 Mukhtiar Singh were present along with the deceased. P.W.1 has given complete description of what weapons each of the accused was carrying and what injuries have been inflicted upon the deceased and the injured as a result of fire arms. He has stated that accused Uttam Singh gave a lalkara asking his companion not to permit the complainant party to go as whole family had been found together. Hazur Singh was driving the tractor and he stopped the tractor immediately upon hearing lalkara so that the persons sitting in the tractor could flee away. However, Avtar Singh accused then fired. Shot fired by Avtar Singh hit Ram Singh near his testicles. Ram Singh fell down on the ground. Pellets of the same bullet hit this witness on his left leg and also hit Mukhtiar Singh near his arm pit on the left leg. Pellets are stated to have hit Jagtar Singh on his right shoulder. According to this witness, Hardeep Singh and Mukhtiar Singh both had fired one or two shots each approximately at the same time. In retaliation this witness also fired from his gun towards the accused, but did not hit any of them. This statement of P.W.1 has been fully supported and corroborated by the statements of P.W.2 Jagtar Singh, P.W.5 Mukhtiar Singh and P.W.6 Hazur Singh. All these witnesses who are eye witnesses and claimed to be injured witnesses have given consistent story as indicated earlier. Fire arm injury which resulted in death of Ram Singh has been attributed by all the witnesses to Avtar Singh. These eye witnesses claimed to have suffered pellets injuries and they also say that Mukhtiar Singh and Hardeep Singh of the accused party had also fired. All these eye witnesses were subjected to lengthy crossexamination, but nothing material could be brought on record. The contradiction which appears to have cropped up in the statements of these eye witnesses is only that they had jumped from the tractor whether before firing of shot or after firing of shot by Avtar Singh accused. According to P.W.2 they had jumped from the tractor after shot was fired, while P.W.6 has stated that Hazoor Singh stopped the tractor immediately so that they could flee away and then Avtar Singh had fired shot, but P.W.5 has stated that tractor was stopped after shot was fired by Avtar Singh accused. It will be too far fetch to expect perfection and precision in description of each second of the incident when the complainant party is exposed to threat to their lives and the offender accused in the case are armed with lethal weapons like guns and pistols. There was open threat to their lives by lalkara given by Uttam Singh and thereafter Avtar Singh had fired. In such circumstances when victims had attempted to run away to save their lives from fire arm shots, it would be abnormal conduct if the person says with precision whether the tractor had become absolutely stationary or it was moving when they jumped. Furthermore, all the witnesses are aditem in regard to the occurrence having been witnessed by them. They also wanted to run away to save their lives. The tractor was stopped, but Avtar Singh and others had fired and fire arms injuries resulted in the death of the deceased and injuries to other witnesses as claimed. Thus, to our mind, this is not a contradiction of any material consequence. This evidence of the PWs is fully corroborated by P.W.4 Dr. Ashwani Kumar who has given the details of injuries on the body of Ram Singh and conducted postmortem examination. There is fire arm injury on the deceased near testicles with an entry and exit wounds as described by P.W.4. According to him, the injury No. 1 was sufficient to cause death in the normal course. The time factor given by the doctor fully coincides with the version stated by the prosecution. The report of the Ballistic Expert Ex.PN establishes beyond doubt that fire arm injury which resulted in the death of the deceased was fired from the licensed .12 bore gun of Avtar Singh. Bloodstained earth which was lifted by the Investigating Officer from the spot and sent to the chemical examiner was found to contain human blood. The version of eye witnesses corroborated by expert evidence and the fact that

defence has not been able to create any dent in the case of the prosecution, we have no hesitation in holding that Ram Singh died as a result of fire arm injury given by Avtar Singh. 6. Avtar Singh in his statement under Section 313 Cr.P.C. denied the entire evidence of the prosecution put to him by the Court and took up the plea of false implication in this case. Strange enough all the accused filed written statements before the trial Court. The written statement filed on behalf of Avtar Singh reads as under :

"I am innocent. The story of the prosecution has been fabricated. The complainant party has not come forward with true facts. I was wrongfully detained by the police for a number of days. The licensed gun was fired through by the police. I was detained illegally and wrongfully and thereafter falsely implicated in this case at the instance of the complainant party.

AccusedApplicant

8.11.94,

Avtar Singh s/o Uttam Singh,

r/o V. Jamarai LTI of Avtar Singh."

Thus, it is clear from the above admission of the accused that the accused had opted to restrict his defence to the wrongful confinement by the police and that his licensed gun was fired by the police to implicate him. Some plausible evidence was expected to be brought on record by the accused in support of this plea. Avtar Singh is stated to be member of armed forces. In the crossexamination of P.W.1 specific suggestion was put to the witness that Avtar Singh was member of armed forces. It was also put to the said witness that Uttam Singh is working as driver. If the defence taken is true in the facts of the case, it would have been of great help to the accused to establish the plea of their false implication and illegal confinement in the police station. Not a single witness was examined in defence. Avtar Singh failed to give any details or explanation as to under what circumstances and on what date the gun was fired by the police. He admitted that shot was fired from the gun. The plea put forth by him is neither plausible nor is capable of creating any dent in the case of the prosecution specially in the face of clear, specific eye witness account supported and corroborated by documentary and ocular evidence and evidence of experts.

This takes us to the necessary corollary as to the presence, role and intention of coaccused i.e. Jagtar Singh, Hardeep Singh and Uttam Singh. According to the version stated by eye witnesses, these accused were present at the site and had participated with common intention of causing harm and not permitting the complainant party escape from the place of occurrence. The witnesses have categorically stated that lalkara was given by Uttam Singh saying that as all the family was together on the tractor, none should be permitted to escape. Thus, all these accused had common intention and they are stated to have attacked the complainant party with common minds. It is not necessary that to bring an accused''s action within the ambit of Section 34 of the Indian Penal Code, he must participate effectively in the crime. The purpose of Section 34 of the Indian Penal Code is to take in its ambit all the accused where the crime is committed by several persons in furtherance to the common intention of all, irrespective of the role specifically attributed to each one of them, as each of such persons would be liable for the criminal act as if this was done by him alone. It is clear that role of each accused would not be of serious consequence if the provisions of Section 34 of the Code are attracted in the facts and circumstances of the case. Common intention indicates meeting of minds of the accused and sharing common intention to commit the crime (Gajan Singh v. State of Punjab, AIR 1976 SC 2069). In no circumstance minimum time factor can be fixed between these two stages, which would ultimately attract the provisions of Section 34 of the Code. Such sharing of minds or intention may be instant, may be just sometime earlier than the time of the occurrence or it may be act quite earlier in point of time to the commission of the offence. The provisions of Section 34 do not create an offence itself, but the provisions come into play only when any crime is committed by several persons with common intention. The Hon''ble Supreme Court of India in the case of Pandurang and others v. State of Hyderabad, AIR 1955 S.C. 216 while elaborating the provisions of Section 34 held as under :

"The plan need not to be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre arranged plan however hastily formed and rudely conceived."

All the accused, according to the prosecution story, were present at the place of occurrence. They are stated to have actually participated in the crime. Their names have been mentioned in the First Information Report along with weapons. It was so indicated in the inquest proceedings conducted by the Investigating Officer. The mere nonrecovery of the weapons or empties relating to these accused may be a ground for giving benefit to the said accused for an offence under Section 307 of the Indian Penal Code for which they were charged and have rightly been convicted by the trial Court. This, by itself, would not be sufficient to give benefit of doubt to the accused for an offence under Section 302 read with Section 34 of the Indian Penal Code. The medicolegal reports of the injured witnesses which have been placed on record and were marked as A, B, C and D respectively, cannot be taken note of by us primarily for the reason that this cannot be treated as an evidence on record. These documents were neither exhibited nor doctor who examined them was produced in Court. Be that as it may, in furtherance of lalkara given by Uttam Singh that the whole family of the complainant party was on a tractor and they should not be permitted to go away and should be killed and the fact that all the accused came armed with weapons is apparently meeting of the minds with common intention to finish the complainant party, has been fully established on record. The statement of P.W.1 was recorded at 8.55 a.m. and without any further loss of time the FIR was registered and thereafter the report was sent to the Magistrate at Tarantarn 50 kms. from the police station, and all the accused with their weapons and injuries inflicted by them were mentioned. Thus, we are not prepared to disbelieve the eye witnesses that the accused were present at the spot. Their common intention has been fairly explained by us above. Even if we ignore the fact that the injuries were not inflicted by these accused upon the complainant party, their role and intention in view of the entire evidence read in its entirity clearly shows the common intention and the minds to commit the criminal offence.

In the case of Rishideo Pande v. State of Uttar Pradesh, AIR 1965 S.C. 331 in somewhat similar circumstances Hon''ble the Supreme Court observed as under :

"The common intention referred to in Section 34 presupposes a prior concert, a prearranged plan, i.e. a prior meeting of minds. This does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. It is not necessary to adduce direct evidence of the common intention."

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"Even where it is true that the appellant convicted under Section 302 read with Section 34 Penal Code did not inflict any blow on the deceased, yet if it is found that he shared the common intention to kill him and actually participated in the criminal act by being present on the spot armed with his lathi, then in the eye of the law, he is as much guilty of the whole criminal act as is his coaccused who actually dealt the fatal blow on the sleeping man."

Once the prosecution is able to prove its case beyond doubt and the entire evidence indicates with certainty towards guilt of the accused, falsehood of defence would, itself, be a consideration before the Court. In the statement of P.W.1 it has come on record that he had .12 bore gun from which he had fired. It does not sound to reason as to how Avtar Singh even if armed, would take the courage of going and killing 6/7 persons who themselves were armed. The hypothesis that Avtar Singh was alone at the time of occurrence and other accused were not present, cannot be believed primarily it is even unexpected conduct of any reasonable prudent person. Before the Court can reject the version stated by eye witnesses, there must be some defence evidence before the Court for taking such a view. No evidence has been pointed out before us which could falsify the eye witness account in its entirety, on the contrary the version given by eye witnesses is the only plausible version of the occurrence. In view of the well settled law as already noticed, the contention of the learned counsel for the appellants that there was no premeeting of minds or common intention to the occurrence which would render the appellantsaccused liable for being held guilty of any offence, is to be noticed primarily to be rejected because the common intention can generate at the spot and such common intention can even be inferred from the facts and circumstances of the case and the attendant circumstances while taking the case of the prosecution in its entirety. (Reference can be made to Yallapa and others v. State of Karnataka, 1994(1) Supreme Court Cases 730).

Lastly the learned counsel for the appellants argued that there was very strong motive on the part of the complainant party to falsely implicate all the accused. On the other hand it was contended by the learned counsel for the State that there was strong motive on the part of the accused to commit the crime. Previous enmity has been admitted on record. It has come in the statements of the PWs and more particularly in the crossexamination of P.W.1 that there was land dispute which is allegedly sold by one Surinder Kaur. It has come in the crossexamination of P.W.1 that proceedings under Section 145 Cr.P.C. were pending between the complainant party and the accused. Motive is certainly double edged weapon. The accused were involved in a murder case where Narain Singh son of P.W.1 was murdered. However, they were acquitted subsequently. Motive is a relevant factor but is not determining factor in accordance with canon of criminal jurisprudence. If motive is shown by the prosecution and is proved, it becomes relevant factor for final decision by the Court, but if not proved and no motive is shown, it again remains a mere relevant factor to be considered by the Court, but cannot be a determining factor that too to the extent that absence of definite (motive) would frustrate the case of the prosecution. In the present case, the motive, as indicated by the prosecution, appears to be more probable than the counter motive pleaded by the accused for their false implication in the present case. The prosecution has been able to prove its case beyond doubt and the accused have been rightly convicted by the trial Court. We are of the considered view that the accused even had the motive as aforesaid for committing the crime.

In view of our discussion above, while sustaining the judgment of the Trial Court for the reasons stated therein and above by us, we find no merit in this appeal and the same is dismissed.