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2001 DIGILAW 754 (PNJ)

Ashwani Kumar v. State Of Punjab

2001-07-25

A.S.GARG, HARJIT SINGH BEDI

body2001
Judgment A.S.Garg, J. 1. This criminal case relates to an offence of double murder alleged to have been committed on the occasion of the election of the Cooperative Society at village Khatriwala, in the area of Police Station, Bareta, district Mansa. 2. The elections to the office bearers of the Cooperative Agricultural Rural Society, Khatriwala were to be held on 20.5.1995. Earlier this election was scheduled to be held on 15.5.1995. There was some apprehension of violence and the election was, therefore, postponed to 20.5.1995. The Returning Officer Ashwani Kumar appellant had moved an application to the Police Station for security. ASI Ujagar Singh P.W.14 was deputed to maintain law and order at the time of the said election. 3. Bhagwan Singh P.W.8 had three sons, namely, Gurcharan Singh, Niranjan Singh and Pargat Singh. Out of them Niranjan Singh had filed nomination paper for the said election. On 20.5.1995, Bhagwan Singh P.W.8 along with his three sons and one Sukhdev Singh, Ex-Sarpanch had gone to village Khatriwala. 27 persons had filed the nomination papers. However, Ashwani Kumar appellant rejected the nomination papers of 18 persons and the remaining 9 were declared as elected. Gurcharan Singh son of Bhagwan Singh P.W.8 and others questioned Ashwani Kumar, the Returning Officer as to why the nomination papers of so many persons were rejected but it was advised by Ashwani Kumar appellant that if they had any grievance they could approach the superior or could bring an election petition. After the declaration of the result, Ashwani Kumar and other persons of the staff wanted to slip away from the scene of occurrence in a car parked nearby but Gur Lal, the other appellant allegedly fired from his 12 bore DBBL gun upon the persons who had assembled on the scene of occurrence and as a result of that Gurcharan Singh son of Bhagwan Singh P.W.8 succumbed to the injuries whereas another person by the name of Jang Singh was injured, who later on died in Civil Hospital, Mansa. Hardev Singh alias Mithu Singh, Harjinder Pal and Buta Singh had the common object along with other co-accused Gur Lal and Ashwani Kumar appellants. The occurrence was witnessed by large number of persons. 4. Bhagwan Singh P.W.8 made statement Ex. Hardev Singh alias Mithu Singh, Harjinder Pal and Buta Singh had the common object along with other co-accused Gur Lal and Ashwani Kumar appellants. The occurrence was witnessed by large number of persons. 4. Bhagwan Singh P.W.8 made statement Ex. PR before ASI Ujagar Singh P.W.14 at about 1.15 P.M. and stated that the said occurrence took place at about 10.30 A.M. and on its basis formal F.I.R. Ex. PR/2 was recorded at 2.00 P.M. The special report reached the learned Ilaqa Magistrate at 7.30 P.M. on the same day i.e. 20.5.1995 through Constable Major Singh P.W.4. The said ASI took into possession the result sheet of elected members vide memo Ex. PV. Thereafter SI Kesar Singh P.W.19 came to the spot and took over the investigation. ASI Ujagar Singh P.W.14 was deputed by Kesar Singh to go to Civil Hospital, Mansa, where the other injured were referred. He enquired about the fitness of Jang Singh to make a statement but he was declared unfit to make a statement. He received wireless message regarding the death of Jang Singh. He went to Civil Hospital, Mansa and prepared inquest report Ex. PN on the dead body of Jang Singh and sent the dead body for post mortem. 5. SI Kesar Singh P.W.19 inspected the scene of occurrence. He took into possession blood stained earth and simple earth vide memo Ex. PAA. Two empties of 12 bore Ex. P3 and P4 were also lifted from the spot and taken into possession vide memo Ex. PCC. The said SI also prepared rough site plan Ex. PU of the scene of occurrence. He then reached Civil Hospital, Bareta and prepared inquest report Ex. PB on the dead body of Gurcharan Singh and sent the same for post mortem. Thereafter the Investigating Officer raided the houses of the accused but they were not found in their houses. After post mortem the clothes of Gurcharan Singh deceased were taken into possession vide memo Ex. PSS. On 21.5.1995, he went to Civil Hospital, Mansa where Constable Gurdip Singh produced before him two parcels one containing the clothes of the deceased Jang Singh and another containing pellets, which were taken into possession vide memo Ex. PTT. He also recorded the statements of Mithu Singh and Nand Singh injured. On 2.6.1995, the said SI raided the house of Ashwani Kumar and he was arrested. PTT. He also recorded the statements of Mithu Singh and Nand Singh injured. On 2.6.1995, the said SI raided the house of Ashwani Kumar and he was arrested. On interrogation he made a disclosure statement Ex. PFF and in pursuance thereof he got recovered record relating to elections of the Society which was taken into possession vide memo Ex. PGG. On the same day on receipt of secret information he arrested Gur Lal appellant from the bus stand of Jalbera. On 3.6.1995 in pursuance of his disclosure statement Ex. PJJ Gur Lal appellant got recovered 12 bore gun Ex. P6 from his Almirah of the room in his residential house, which was taken into possession vide memo Ex. PKK along with Licence Ex. PD and two cartridges. On 7.6.1995, the Investigating Officer arrested Mithu Singh and Harjinder Pal Singh. Buta Singh accused was formally arrested by ASI Surjit Singh on 18.2.1996 as he was released on anticipatory bail. After completion of investigation, all the accused were put to trial. 6. Dr. Kuldip Rai P.W.1, who conducted autopsy on the dead body of Gurcharan Singh on 20.5.1995 at 6.40 P.M. vide post mortem report Ex. PA opined that the death was due to shock and haemorrhage as a result of the injuries which were sufficient to cause death in the ordinary course of nature. Similarly, Dr. Rajinder Kumar Garg P.W.2 conducted post mortem on the dead body of Jang Singh and vide post mortem report Ex. PM opined that the death in this case was due to shock and haemorrhage resulting from the injuries suffered by the deceased which were sufficient to cause death in the ordinary course of nature. Both the doctors also opined that the injuries were caused by fire arm. 7. The weapon of offence and one empty cartridge were sent to the Forensic Science Laboratory who vide report Ex. PUU opined that one 12 bore K.F. special cartridge case marked CA contained in parcel A has been fired from left barrel of 12 bore DBBL gun No. 14259-88. However, it was opined that no definite opinion could be given regarding firing of one 12 bore Shakitman Express cartridge case marked C/2 from 12 bore DBBL gun No. 14259-88, due to lack of sufficient individual characteristic marks. 8. However, it was opined that no definite opinion could be given regarding firing of one 12 bore Shakitman Express cartridge case marked C/2 from 12 bore DBBL gun No. 14259-88, due to lack of sufficient individual characteristic marks. 8. At the trial, the appellants in their statements under Section 313 of the Code of Criminal Procedure, have narrowed down the controversy. Gur Lal appellant who allegedly fired at the two deceased admitted that he was elected as President of the Cooperative Agricultural Society, Gobindpura. There were nine zones in the said Cooperative Society and the President of each Cooperative Society was eligible to be elected as Director of the Cooperative Societies. He stated that there was mob of about 300/400 persons armed with Lathis, sticks, brick bats and other weapons and when they rushed towards him and Ashwani Kumar appellant, he fired at them to restrain them from killing him, Ashwani Kumar appellant and other members of the election staff. So, according to him, by firing he saved himself and the members of the election staff and that he had sent a telegram to that effect to the higher authorities. Ashwani Kumar appellant also took the same plea. A witness by the name of Faqir Chand DW1 had allegedly tape recorded that one Mohd. Rafiq who was a witness of the prosecution had told this witness that the persons at the spot had resorted to violence i.e. brick batting and that the firing took place as a right of self-defence. This conversation was allegedly tape recorded. However, tape recorded evidence was not produced in defence. The learned trial Judge acquitted Hardev Singh alias Mithu Singh, Harjinder Pal and Buta Singh finding that nothing was attributed to them and there was no evidence against them. He, however, convicted Gur Lal appellant under Section 302 of the Indian Penal Code and Ashwani Kumar appellant under Section 302 read with Section 109 of the Indian Penal Code on two counts for the murders of Gurcharan Singh and Jang Singh and sentenced them to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- each. In default of payment of fine each of them was ordered to undergo further rigourous imprisonment for a period of one month on both counts. 1000/- each. In default of payment of fine each of them was ordered to undergo further rigourous imprisonment for a period of one month on both counts. Gur Lal appellant was further convicted under Section 307 of the Indian Penal Code on two counts for murderous assault and causing injuries to Mithu Singh and Nand Singh and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/- each. In default of payment of fine he was ordered to undergo further rigorous imprisonment for one month on each count. Ashwani Kumar appellant was also convicted under Section 307 read with Section 109 of the Indian Penal Code on two counts and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 500/- on each count. In default of payment of fine he was ordered to undergo further rigorous imprisonment for one month on each count. Gur Lal appellant was convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for one month. Ashwani Kumar appellant was convicted under Section 27 of the Arms Act read with Section 109 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one month. All the substantives sentences of imprisonment in respect of each of the appellants was ordered to run concurrently. 9. Aggrieved against his conviction and sentence Ashwani Kumar appellant filed Crl.A. No. 503-DB of 1999 whereas Gur Lal appellant filed Crl.A. No. 531-DB of 1999. Both these appeals are being disposed of by this judgment. 10. We have gone through the detailed statements of Bhagwan Singh P.W.8, Mithu Singh P.W.9, Sukhdev Singh P.W.10 bad Rafiq Mohd. P.W.11. 11. Bhagwan Singh P.W.8 has stated in his statement Ex. PR made before the police, in the concluding portion thereof that it was Ashwani Kumar appellant who got the shots fired. It would be necessary to mention a part of cross- examination of this witness, which is reproduced hereunder : "............ Ashwani Kumar accused told us that we should come to his office and ask him the reasons for rejection of nomination papers. After saying so, Ashwani Kumar and other staff started towards the car for going to Mansa. It would be necessary to mention a part of cross- examination of this witness, which is reproduced hereunder : "............ Ashwani Kumar accused told us that we should come to his office and ask him the reasons for rejection of nomination papers. After saying so, Ashwani Kumar and other staff started towards the car for going to Mansa. All of them i.e. people then reached near the car. Near the car Ashwani Kumar accused was asked by us for about 4-5 minutes to disclose the reasons for rejection of nomination papers. Ashwani Kumar did not utter the words as to why Gurlal Singh was standing with a 12 bore gun (Tamba) and whether he will use the same when he was beaten to death by the people. I did not state in my statement before Sh. Resham Singh SP(D) Mansa on 20.5.95........." 12. Bhagwan Singh P.W.8 also stated in other part of his cross-examination as under : ".............I did not make a statement during course of inquiry that Ujagar Singh fired a shot in the air. About 3 to 4 shots were fired. Again said only three shots were fired. About 200 persons assembled at the spot. Teja Singh took the injured in the canter. They were not removed by the police in police canter. I did not make any statement during the course of inquiry proceedings that the injured were taken by police in a police canter. I did not state in my statement during course of inquiry proceedings that the police with a view to shelter the accused and to prevent us fired a shot in air......." 13. A part of the statement of Mithu Singh P.W.9 be also reproduced for clarity and convenience : "....We talked for about 10-15 minutes to Ashwani Kumar in the office. When the people did not refrain from asking him again and again, he carried his record and started towards the car. We again started asking him the reasons for rejection of nomination papers for about 10-12 minutes after going near the car. Ashwani Kumar and staff did not sit in the car. The peaple did not stop them from sitting in the car. The police was standing near the gate of the society. The peaple did not prevent us from going towards Ashwani Kumar and staff. It is incorrect to suggest that we were armed with Kirpans sotis brick bats. Ashwani Kumar and staff did not sit in the car. The peaple did not stop them from sitting in the car. The police was standing near the gate of the society. The peaple did not prevent us from going towards Ashwani Kumar and staff. It is incorrect to suggest that we were armed with Kirpans sotis brick bats. It is wrong to suggest that had the police not saved them they would have been beaten to death by the people. Ashwani Kumar did not ask Gurlal Singh as to what he was to do with 12 bore tamba and whether he will use the same only after he was beaten to death by the people............" 14. Similarly, apart of the statement of Sukhdev Singh P.W.10 may be reproduced : ".....Thereafter I, Bhagwan Singh and other persons started asking Ashwani Kumar as to how he had declared the result without holding the elections. We asked Ashwani Kumar as to how our nomination papers had been rejected. Ashwani Kumar accused told us that we should talk to his senior officer in this regard. He further told us that the Asstt. Registrar had come just now and had told him that in case anybody raise objection he should be sent to him. Thereafter Ashwani Kumar, Harjinder Pal sales man of Society, Mithu Singh alias Hardev Singh Secretary Co.-op Agri. Society, Toderpur after picking up the papers started towards the car standing at some distance. Gurlal Singh accused present in Court was standing near the car with Double Barrel gun......... Thereafter Gurlal Singh accused fired a shot from his DBBI Gun towards Gurcharan Singh. The shot hit at his face. Gurlal Singh then fired 2-3 more shots from said gun which hit Jang Singh son of Kirpal Singh, Nand Singh son of Chanan Singh, Mithu Singh son of Sadhu Singh as a result of whereof they got injured......" 15. A part of cross-examination of this witness is reproduced : "........I and Gurlal Singh accused were to contest the elections of the Director of Co-op Bank Mansa. Gurlal Singh accused came there on that day to see that his supporters are elected. I do not know as to whether the members who were elected mostly belong to the party of Gurlal Singh. On 15.3.95, a meeting was held for election of members of the said society. Gurlal Singh accused came there on that day to see that his supporters are elected. I do not know as to whether the members who were elected mostly belong to the party of Gurlal Singh. On 15.3.95, a meeting was held for election of members of the said society. On that day about 299 members of society were present........" The evidence of Rafiq Mohd. P.W.11, in fact, does not remain to be of much importance as Faqir Chand DW1, who had allegedly tape recorded the conversation, has not produced the evidence of tape recorder. The evidence of Rafiq Mohd. was not relied upon. 16 Now reverting to the statement of the three eyewitnesses, it would be almost clear that there was no allegation at all that Ashwani Kumar appellant instigated Gur Lal appellant to fire at the mob or to fire at a specific person. There was a lot of conversation between Ashwani Kumar and the persons belonging to the group whose nomination papers were rejected by them. There was a clear suggestion from him to meet the superiors and to file an election petition. No person from the mob prevented Ashwani Kumar to reach his car. The police party was already present on the scene of occurrence. They also fired in the air to scare away people. We do not find any sufficient evidence against Ashwani Kumar to say that he hinted Gur Lal to fire at the deceased persons. In a subsequent statement before the DSP during the investigation, it was claimed that Ashwani Kumar asked Gur Lal as to why he was carrying the double barrel gun and he would use the same if he had been killed. So this version did not come initially and came subsequently which too does not find any sufficient corroboration. So the allegation that Ashwani Kumar gave a direction to Gur Lal to fire is totally unfounded. 17. So this version did not come initially and came subsequently which too does not find any sufficient corroboration. So the allegation that Ashwani Kumar gave a direction to Gur Lal to fire is totally unfounded. 17. Shri R.S. Cheema, Senior Advocate, learned counsel for Ashwani Kumar appellant has urged that Ashwani Kumar was not being prosecuted for rejecting the nomination papers and the fact that he rejected some nomination papers may not be taken as prejudice against him to determine the guilt of any other person; that there was no obstruction for him to leave the place; that nothing was attributed in the FIR that Ashwani Kumar asked Gur Lal to fire; that improvements were being made by the witnesses to rope in Ashwani Kumar; that Buta Singh, Sub Registrar has already left the scene of occurrence without being hurt by any one; that Rafiq Mohd. P.W.11 was disbelieved; that the police had already reasorted to firing and the appellant Ashwani Kumar did not utter a single word. All these arguments are in fact borne out from the record. These arguments are borne out only qua the case of Ashwani Kumar appellant. His case is only related to the alleged abetment, which is not proved. 18. Now coming to the case of Gur Lal appellant, Shri R.S. Ghai, Senior Advocate has argued at great length and first of all claimed that the occurrence had taken place at about 10.30 A.M. while the statement of Bhagwan Singh P.W.8 has been recorded at 1.15 P.M. and ultimately the special report reached the learned Ilaqa Magistrate at 7.30 P.M. with a delay of six hours. According to him, this delay was not explained at all and this kind of attitude of the investigation gave ample chance to them to manipulate the situation. The learned counsel further urged and tried to build up a case that in fact earlier also the election was fixed but could not be held because of the violence which was expected to spoil the election. It was also being canvassed that the witnesses have already stated that there was a mob of 200/300 persons assembled on the scene of occurrence. The persons assembled were annoyed as to why atleast 18 nomination papers were rejected which belonged to the party of the complainant. It was also being canvassed that the witnesses have already stated that there was a mob of 200/300 persons assembled on the scene of occurrence. The persons assembled were annoyed as to why atleast 18 nomination papers were rejected which belonged to the party of the complainant. So, according to him, it was a case where passion of the people went to the extent that time and again they were feeling disturbed when they were not being given satisfactory answer by Ashwani Kumar as to why the nomination papers were rejected. He claimed that there was no motive for Gur Lal appellant to resort to violence but it was purely with the feeling that he was supposed to save the election staff when the mob was menacingly after them and out of fear and apprehension that the election staff and others were going to be done to death or some grievous injury was likely to be caused to them that Gur Lal appellant fired. Learned counsel also urged that the act of Gur Lal appellant was protected under Sections 97 and 100 of the Indian Penal Code. He urged that there was an incensed mob and the election had a chequered history behind it. The police failed to protect the persons assembled there and the election staff and it was a pure act of self-defence that Gur Lal appellant fired. He had no intention to cause death of the deceased person nor he was against them. 19. However, if the entire case is recapitulated and reconstructed, it would be apparent that Sukhdev Singh P.W.10 had stated that he was contender for the post of Director as against Gur Lal appellant. It is also clear from the evidence that Gur Lal got his nine persons elected and the nomination papers of the remaining 18 were got rejected. Gur Lal belongs to village Gobindpura and not to village Khatriwala. His presence on the said election was to see that his persons were elected. It is a fact that nine persons of Gur Lal were declared elected. So the presence of Gur Lal appellant on the scene of occurrence was with the object that he gets his persons elected without any interference from the opposition. The police party was already present on the scene of occurrence. It is a fact that nine persons of Gur Lal were declared elected. So the presence of Gur Lal appellant on the scene of occurrence was with the object that he gets his persons elected without any interference from the opposition. The police party was already present on the scene of occurrence. There is no evidence that any person from the mob pelted any stone on Gur Lal or Ashwani Kumar nor did they inflict a stick or lathi blow on any one. The election staff reached upto the vehicle meant for them. No body even touched Ashwani Kumar nor Gur Lal nor manhandled them nor hurled any abuse. The prosecution witnesses had gone to the extent to say that the people in the mob were not armed with sticks or lathis or with any other weapon. So there did not appear to be any apprehension to the life of Gur Lal or Ashwani Kumar. If there had been any danger to life of Ashwani Kumar he would have indicated something about it but there is no evidence that he instigated any one to fire at the mob. He even did not ask the police official present at the spot to resort to any firing. Though the plea of self-defence in a statement under Section 313 of the Code of Criminal Procedure can be taken as such but at the same time Gur Lal could have appeared in the witness box as his own witness to say on oath that he really apprehended his death or death of any member of the staff and should have allowed himself to be cross-examined. In the circumstances when Gur Lal has not been caused any injury by any one nor any body threatened that he was going to be dealt with, so the provisions contained in Sections 97 and 100 of the Indian Penal Code refer to such cases where there is really apprehension of some harm being brought to a person or a property and a person in that circumstances prevents the same. Even the vehicle standing there and the papers lying in the office and other articles were not touched by any member from the mob. So we are of the firm view that it is not a case of self- defence. Even the vehicle standing there and the papers lying in the office and other articles were not touched by any member from the mob. So we are of the firm view that it is not a case of self- defence. Rather it is assumed by Gur Lal now later on that he could take such a plea to get himself exonerated from the responsibility of having committed double murder. Even we do not feel inclined that the case of Gur Lal would be covered under Section 304 Part II of the Indian Penal Code. So, we overrule the contentions raised by the learned counsel for Gur Lal appellant. 20. In view of the above discussion, we do not find that any offence against Ashwani Kumar appellant is made out and Crl. A. No. 503-DB of 1999 filed by him is allowed and he is acquitted of the charges framed against him but decline Crl. A. No. 531-DB of 1999 filed by Gurlal against his conviction and sentence and affirm the same.