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2004 DIGILAW 948 (PNJ)

Mohinder Singh v. State of Punjab

2004-08-24

S.S.GREWAL, V.M.JAIN

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JUDGMENT S.S. Grewal, J. - Mohinder Singh and Amarjit Singh sons of Harbans Singh have filed this appeal against the judgment of conviction and order of sentence dated 24.1.2002 passed by learned Sessions Judge, Amritsar in case FIR No. 236 dated 16.12.1997 registered under Sections 302 read with Section 34 Indian Penal Code at Police Station Sadar, Amritsar, vide which Mohinder Singh, accused (appellant No. 1) was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- under Section 302 and in default of payment of fine to further undergo RI for three months and Amarjit Singh (appellant No. 2) was sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- under Section 302 read with Section 34 Indian Penal Code and in default of payment of fine, to further undergo RI for three months. 2. The prosecution lodged a report on 16.12.1997 on the basis of statement made by Parminder Singh son of Gurdial Singh to Dalbir Singh, SHO Police Station Sadar, Amritsar alleging therein that he was a resident of village Gagarwala and was doing cultivation. Towards West of his house, at a distance of about 50 yards, 4-5 marlas of their land was situated. Over this land, Mohinder Singh @ Tota son of Harbans Singh, Mazbhi by caste, of village Gagarwala had constructed a temporary hut. On 16.12.1997, at about 5.30 P.M., he along with his friend and Transport Partner, Jagdish Singh son of Jaswant Singh, Jat, resident of Bal Kalan, Police Station Majitha and Ajit Singh son of Aroor Singh son of his fathers uncle, who was unmarried and was living with them from the very beginning and was also looking after the affairs of their house, was sitting on the terrace of the kothi. There was a telephone pole near their house from where the telephone connection was provided to their house. The pole was broken and replaced by a new one by the telephone department. Broken pole was taken away by Mohinder Singh @ Tota Singh towards his hut. Ajit Singh told them that he will come back after asking Mohinder Singh as to why he had taken away the broken pole. He went towards the hut of Mohinder Singh where Mohinder Singh and Ajit Singh got scuffled/grappled with each other. Broken pole was taken away by Mohinder Singh @ Tota Singh towards his hut. Ajit Singh told them that he will come back after asking Mohinder Singh as to why he had taken away the broken pole. He went towards the hut of Mohinder Singh where Mohinder Singh and Ajit Singh got scuffled/grappled with each other. In the meantime, Amarjit Singh, brother of Mohinder Singh came there and raised a lalkara that Ajit Singh be caught hold and he should not escape today. On hearing the lalkara, Mohinder Singh @ Tota picked up kassi lying near-by and hit Ajit Singh on his head upon which, he fell down. While they were climbing down they saw Mohinder Singh giving two more kassi blows to fallen Ajit Singh. When he and Jagdish Singh reached the hut after climbing down from the house, Mohinder Singh @ Tota alongwith kassi and Amarjit Singh ran away from the spot. When they reached near Ajit Singh, he succumbed to his injuries. They examined Ajit Singh from near-by and found that there were cut marks on the right side of the head, right ear and right cheek. His uncle Ajit Singh was murdered by Mohinder Singh @ Tota and Amarjit Singh. While leaving behind Jagdish Singh and other family members near the dead-body, he came to inform the police. On the basis of the statement Ex. P-B, FIR Ex. PB/2 recorded. 3. After investigation, the prosecution presented the challan in the Court against Mohinder Singh accused while Amarjit Singh having been shown in column No. 2. Though an application was filed on 14.5.1988 by the prosecution under Section 319 Criminal Procedure Code for summoning Amarjit Singh, who was shown in column No. 2 of the report under Section 173 Criminal Procedure Code but, the same was withdrawn on 28.5.1998. 4. Charge under Section 302 Indian Penal Code was framed against Mohinder Singh, accused on 29.7.1998, which was read over and explained to him, to which he pleaded not guilty and claimed trial. 5. Prosecution examined Constable Amarjit Singh, PW-1. An affidavit of Constable Jasbir Singh, Ex. PB, was tendered into prosecution evidence and after recording the statement of the counsel for the accused that he did not want to cross-examine the deponent of the affidavit, the same was ordered to be read as PW-2. Parminder Singh appeared as PW-3 and he was also cross- examined. An affidavit of Constable Jasbir Singh, Ex. PB, was tendered into prosecution evidence and after recording the statement of the counsel for the accused that he did not want to cross-examine the deponent of the affidavit, the same was ordered to be read as PW-2. Parminder Singh appeared as PW-3 and he was also cross- examined. An application was then moved under Section 319 Criminal Procedure Code for summoning Amarjit Singh as accused, which was allowed on 14.9.1999 and Amarjit Singh was summoned. He appeared on 11.10.1999 and he was taken into custody. Thereafter a charge under Section 302 Indian Penal Code was framed against Mohinder Singh accused and Amarjit Singh was charged under Section 302 read with Section 304 Indian Penal Code. The contents of the charges were read over and explained to the accused in their own language and they pleaded not guilty and claimed trial. 6. After summoning the accused Amarjit Singh and framing of charge against both the accused, as mentioned above, in support of its version, the prosecution examined PW-1, Dr. Gurmanjit Rai, PW-2 Parminder Singh, PW-3 C. Jagdish Singh, PW-4 C. Jasbir Singh, PW-5 HC Naresh Kumar, PW-6 C. Amarjit Singh, PW-7 C. Satnam Singh, PW-8 SI Dalbir Singh and after tendering certain documents, closed its evidence. When examined under Section 313 Criminal Procedure Code, accused pleaded false implication and innocence. They had (led ?) no defence evidence. 7. We have heard learned counsel for the parties and perused the record. 8. The learned counsel for the appellants has argued that Ajit Singh was the aggressor and he started quarreling with Mohinder Singh accused. Mohinder Singh had no motive to cause death of Ajit Singh. The occurrence had allegedly taken place at 5.30 P.M. on 16.12.1997 and the witnesses were allegedly sitting over the roof of kothi, at a distance of about 50 yards. In the month of December, 1997 i.e. winter season, at 5.30 P.M., it is almost dark and the witnesses could not have witnessed the occurrence, nor they could have heard as to what was happening at a distance of more than 50 yards in the hut of Mohinder Singh. The other witness Jagdish Singh belonged to the village of Bal Kalan, which is at a distance of 6 Kms. from Gajarwala and he has no reason to be present at that time. The other witness Jagdish Singh belonged to the village of Bal Kalan, which is at a distance of 6 Kms. from Gajarwala and he has no reason to be present at that time. Distance from the spot to Police Station, Sadar, Amritsar is 6 Kms. and FIR reached the Illaqa Magistrate at 1.00 A.M. on 17.12.1997. So, there is a long delay in lodging the FIR. Parminder Singh is the relation witness and Jagdish Singh is his friend. So, they should not be believed and the accused should be acquitted of the charge. 9. On the other hand, learned counsel for the State has argued that in the present case, there is direct evidence regarding murder. So the evidence of motive is not required. Witness Parminder Singh is a relation but as Ajit Singh was living with him and was looking after the affairs of their house, there is no abnormality if Parminder Singh, Ajit Singh and Jagdish Singh were sitting on the roof. Ajit Singh, being looking after the affairs of the house, went to enquire about taking away of broken pole by Mohinder Singh. There is no contradiction between medical and oral testimony and the case of the prosecution stands fully proved beyond reasonable doubts. 10. The occurrence is alleged to have taken place on 16.12.1997 at 5.30 P.M. The statement of Parminder Singh, PW was recorded at 7.45 P.M. by the police of Majitha Bye-pass chowk. The FIR was recorded at 8.20 P.M. and it reached the Illaqa Magistrate at 1.00 A.M. on 17.12.1997. So, there is no delay in lodging the FIR. There is no injury on the person of Mohinder Singh accused. If Ajit Singh was the aggressor or he had any intention to cause injury to Mohinder Singh, he would have carried some weapon in his hand. He went empty handed and it was Mohinder Singh, who started grappling with him and then caused three injuries with kassi on the person of Ajit Singh (deceased). So Ajit Singh cannot be termed as aggressor. The oral testimony is supported by medical evidence. In case of direct evidence, lack of motive is no ground to cast suspicion on the oral testimony of the witnesses. The witnesses were sitting on a roof and could see the occurrence. Otherwise also, there was no enmity between Mohinder Singh and prosecution witnesses. The oral testimony is supported by medical evidence. In case of direct evidence, lack of motive is no ground to cast suspicion on the oral testimony of the witnesses. The witnesses were sitting on a roof and could see the occurrence. Otherwise also, there was no enmity between Mohinder Singh and prosecution witnesses. Amarjit Singh was unarmed and as per prosecution version, he had come by chance and raised lalkara only. 11. In view of the above discussion, the appeal filed on behalf of Mohinder Singh is dismissed whereas the appeal qua Amarjit Singh is accepted and he is acquitted of the charge. Appeal dismissed.