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2006 DIGILAW 2916 (PNJ)

Amrik Singh v. State Of Haryana

2006-07-20

BALDEV SINGH, MEHTAB S.GILL

body2006
Judgment Mehtab S.Gill, J. 1. By this common Judgment we will be disposing of Cr.A.No.46-DB of 2004, Cr.A No 160-DB of 2004 and Cr. Revision No.686 of 2004, as they arise out of the same judgment of the Additional Sessions Judge, Karnal. The Additional Sessions Judge, Karnal vide his judgment/order dated 6.12.2003/ 10.12.2003 convicted appellants Amrik Singh, Kashmir Singh, Amarjit Singh, Avtar Singh and Sher Singh under Sections 302/307/148/149 I.P.C. and sentenced them to undergo various terms of sentences. 2. The story of the prosecution is unfolded by the statement Ex. PA of complainant Joginder Singh given to Inspector Prem Singh on 4.7.1998 at 9.15 a.m. in the General Hospital. He stated that he has another brother, his name is Gurnam Singh and is elder to him. Both of them live together and do cultivation. Their land is adjacent to the land of Avtar Singh. Avtar Singh had a direct electric connection from the main line, which was unauthorized. On 2.7.1998 officials of the Electricity Department came along with the police and removed the electric wire and took it away. Avtar Singh had a suspicion that Joginder Singh had made a complaint to the Electricity Department. Due to this grudge Amarjit Singh, Amrik Singh and Kashmir Singh all sons of Jarnail Singh tried to stop Joginder Singhs tractor trolley in which he was carrying fertiliser to the fields though they were not successful in doing so. Amarjit Singh was armed with a gun. Nishan Singh son of Mohinder Singh was driving the tractor trolly of complainant Joginder Singh. Joginder Singh was accompanied by Pala Ram son of Fakina, Sunehra son of Santa Ram both being Siris (crop- sharers). The complainant party did not say anything, but took the tractor trolly to their fields. Amarjit Singh, Amrik Singh and Kashmir Singh kept on abusing them. In the evening at about 4 p.m. complainant Joginder Singh along with his brother Gurnam Singh was present at his Dera in their fields. In the meantime, Avtar Singh armed with a Sota, Sher Singh armed with a DBBL gun and Amrik Singh armed with a Gandasi came to their Dera on a tractor which was being driven by Kashmir Singh. Immediately on reaching, Sher Singh fired a shot with his DBBL gun at him, which hit him on his finger, of his right hand. Immediately on reaching, Sher Singh fired a shot with his DBBL gun at him, which hit him on his finger, of his right hand. Sher Singh fired another shot which hit Joginder Singh on his right thigh. Thereafter Amarjit Singh fired a shot which hit Gurnam Singh on his chest. Gurnam Singh died on the spot. Pala Ram son of Fakiria Ram and Nishan Singh son of Mohinder Singh who had seen the occurrence, raised a lalkara to stop inflicting injuries. Joginder Singh tried to snatch the gun from the hands of Sher Singh, as a result, the gun broke into two pieces. Mohinder Singh son of Jaswant Singh and Jasbir Singh son of Dalip Singh put Joginder Singh in a tractor and admitted him in Assandh Hospital. The doctor gave him first-aid and then referred him to General Hospital, Karnal. Swaran Singh son of Mulla Singh, Mukhtiar Singh son of Darshan Singh got Joginder Singh admitted in the General Hospital at Karnal. The cause of grudge is that the appellants suspected that the complainant party had informed the Electricity Department regarding the theft of electric energy being done by Avtar Singh. On the basis of this statement, F.I.R. Ex.PF was recorded on 4.7.1998 at 10.30 a.m., Special report reached the J.M.I.C. on 4.7.1998 at 3 p.m. 3. The police did not take any action on the F.I R. Ex.PF, as they found the appellants to be innocent. Joginder Singh on seeing that the police were not taking any action, then filed a complaint Ex.PC, in the Court of Shri Ajay Singal, J.M.I.C. Karnal, against Avtar Singh son of Iqbal Singh, Sher Singh son of Avtar Singh, Amarjit Singh son of Jarnail Singh. Amrik Singh son of Jarnail Singh and Kashmir Singh son of Jarnail Singh under Sections . 302/307/148/149 I.P.C. 4. The complainant to prove his case, brought into the witness-box Joginder Singh PW 1, Pala Ram PW-2, Nishan Singh PW- 3, Dr. Rajinder Kumar PW4, Ram Kumar PW-5, Dr. Sham Wadhwa PW-6, Naveen Kumar PW-7 and S.K. Makkar PW-8. 5. As there was a defence version, the appellants also brought into the witness-box Dr.Rajinder Kumar DW-1, Sahab Singh DW-2, ASI Surjit Singh DW-3, Vijay Kumar DW-4, Prem Singh DW-5, Gurlal Singh DW-R, Inspector Randhir Singh DW-7 and Dr.Munish Madan DW-8. 6. Rajinder Kumar PW4, Ram Kumar PW-5, Dr. Sham Wadhwa PW-6, Naveen Kumar PW-7 and S.K. Makkar PW-8. 5. As there was a defence version, the appellants also brought into the witness-box Dr.Rajinder Kumar DW-1, Sahab Singh DW-2, ASI Surjit Singh DW-3, Vijay Kumar DW-4, Prem Singh DW-5, Gurlal Singh DW-R, Inspector Randhir Singh DW-7 and Dr.Munish Madan DW-8. 6. Learned counsel for the appellants Shri R.S.Cheema has argued that as per the police investigation and the statement of Prem Singh D.S.P. DW-5, Gurlal Singh DW-6 was challaned for exceeding the right of private defence, but was acquitted by the learned trial Court. As per the prosecution case, appellants Amarjit Singh and Sher Singh both were armed with DBBL guns. Appellant Amarjit Singh inflicted a fire arm injury on the person of Gurnam Singh which proved to be fatal. Appellant Sher Singh inflicted two gun shots injuries on Joginder Singh PW-1 hitting him on the left hand and the right thigh. As per the statement of Joginder Singh PW-1, these shots were fired from a distance of 1- 1/2 karams i.e about 7-1/2 feet. Similarly, Nishan Singh PW-3 has stated that shots were fired from 2/3 paces i.e. from a distance of about 9 feet. From the evidence of Dr. Rajinder Kumar PW4 who examined Joginder Singh PW-1 on 3.7.1998 at about 7.35 a.m., the wounds on the person of Joginder Singh had blackening and the skin was charred. Similarly, on his examining Gurnam Singh deceased, the injury on the person of Gurnam Singh was a lacerated wound going towards the abdominal cavity, which had blackening all around. He further stated that blackening on the injuries on the person of Joginder Singh was due to burning of gases and heat generated by the gun fire. He has further opined that the shot must have been fired from a very close range. It is clear from the prosecution witnesses and from the medical evidence that both the appellant party and the deceased along with Joginder Singh and Gurlal Singh DW-6 were very close to each other, when the occurrence had taken place. If the appellants wanted to inflict injuries on Joginder Singh PW-1 and Gurnam Singh, they would not have come so close, but would have easily fired at Gurnam Singh and Joginder Singh PW-1 from a distance, and that also, from a place where they could easily run away. 7. If the appellants wanted to inflict injuries on Joginder Singh PW-1 and Gurnam Singh, they would not have come so close, but would have easily fired at Gurnam Singh and Joginder Singh PW-1 from a distance, and that also, from a place where they could easily run away. 7. Learned counsel has further argued that apart from Gurlal Singh DW-6, there was no other person present. Gurlal Singh DW-6 was asked to go back to the Dera by his father Avtar Singh appellant, as all of them were present at Police Station Assandh. It is thereafter that Gurlal Singh DW-6 along with appellants Kashmir Singh and Amrik Singh went back. At the Dera of Amatit Singh, appellants Amarjit Singh and Kashmir Singh got down from the tractor. Gurlal Singh DW-6 then drove the tractor towards his Dera. Joginder Singh PW-1 lives in a Dera opposite to the Dera of Gurlal Singh DW-6. Both Joginder Singh PW-1 and Gurnam Singh when he reached near his Dera, stopped Gurlal Singh DW- 6. They were armed with Lathis. Gurlal Singh DW-6 got down from the tractor and it is thereafter Gurlal Singh DW-6 was assaulted with lathis. Gurlal Singh DW-6 sustained 2-3 Lathi blows on his face. His mandible bone was fractured. He suffered injuries on his teeth also resulting in his Jaw being broken. Gurlal Singh DW-6 then picked up his gun from the tractor and fired at Joginder Singh PW-1 and Gurnam Singh in self-defence. It is thereafter when Gurlal Singh DW-6 was being attacked that to protect himself from the Dang blows he tried to save himself with his gun. Several blows hit his DBBL gun which got damaged and the iron portion and the butt portion separated. Gurlal Singh thereafter ran away on his tractor and reached Police Station Assandh. He was taken to the hospital where he was medically examined on 3.7.1998 at 6.45 p.m. by Dr. Munish Madan DW-8. 8. Appellant Sher Singh was residing at Ghannori where he was. working in the Sub-Station of P.S.E.B. Ghannori. The distance between Ghannori and the place of occurrence is 70 kms. Prem Singh D.S.P. DW-5 who investigated the case, found the alibi of Sher Singh to be truthful. Munish Madan DW-8. 8. Appellant Sher Singh was residing at Ghannori where he was. working in the Sub-Station of P.S.E.B. Ghannori. The distance between Ghannori and the place of occurrence is 70 kms. Prem Singh D.S.P. DW-5 who investigated the case, found the alibi of Sher Singh to be truthful. Sahab Singh DW-2 brought the register from the P.S.E.B. Office, Ghannori, wherein it has been shown that appellant Sher Singh had signed the register on 3.7.1998 in token of his taking over the charge. Sahab Singh DW-2 has stated that appellant Sher Singh was present in the office on the fateful day. 9. Applications Exs DD and DE given by the complainant party and Gurlal Singh DW- 6 show that they were given on 3.7.1998 at Police Station Assandh and both the parties had been called by the Investigating Officer Prem Singh D.S.P. DW-5, so that the matter could be resolved. There was tension between both the parties. The motive for the commission of offence is false. There was no need for the complainant, to report the matter of theft of electricity by Avtar Singh, as it was too minor a matter and it did not concern the appellants. 10. Joginder Singh PW-1 has very cleverly not named Gurlal Singh DW-6 in the F.I.R. Ex.PF and complaint Ex PC, but has falsely included the name of appellant Sher Singh, so that he being an employee, would after conviction, lose his job. 11. Learned counsel for the appellants has further argued that there is a delay of 17 hours in lodging of the F.I.R. The occurrence had taken place on 3.7.1998 at 4 p.m. and the statement of Joginder Singh PW-1 was recorded on 4. 7.1998 at 9.15 a.m. In FIR Ex PF, the Investigating Officer Prem Singh D.S.P. DW-5 has recorded that after getting the Fitness Certificate from the doctor, none from the complainant party especially Pal Ram PW-2 and Joginder Singh PW-1, even on being repeatedly being asked to make a statement, came forward to make a statement. The doctor also tried to persuade them to make a statement, but ncne from the complainant party was ready to do so. The sole reason being that at that time, the complainant party knowing that they were at fault, were consulting each other how to build up a false story and falsely implicate the appellants. 12. The doctor also tried to persuade them to make a statement, but ncne from the complainant party was ready to do so. The sole reason being that at that time, the complainant party knowing that they were at fault, were consulting each other how to build up a false story and falsely implicate the appellants. 12. Learned counsel for the State has argued that going through the evidence of both the parties, it comes out that police wanted to help the appellants The name of the appellants, their role and the weapons used by them has been clearly mentioned in the F.I.R. Ex.PF, Appellants suspected that complainant party had given a report to the Electricity Department qua theft of electricity being done by the appellants. The Electricity Department conducted a raid and took way the wires and cut off the electric connection of the house of appellant Avtar Singh. Joginder Singh PW-1, Pala Ram PW-2 and Nishan Singh PW-3 are natural witnesses. They were in their Dera when the occurrence had taken place. Joginder Singh PW-1 received gun shot injuries. Pala Ram PW-2 is no other person than the Siri (crop sharer) of Joginder Singh PW-1. Though the police challaned Gurlal Singh DW-6 and his brother Sher Singh appellant, but as the complainant party stuck to their own truthful version, thus Gurlal Singh DW-6 was acquitted by the learned trial Court. Applications Exs.DD and DE have been brought on record, but there is nothing to show in the police record or by the defence that both the parties had collected on 3.7.1998 at Police Station Assandh. Both these documents Exs.DD and DE have been fabricated by the police only to help the appellants. The plea of alibi taken by appellant Sher Singh is of no consequence, as he marked his presence in the office of P.S.E.B., Ghannori at 7.30 a.m. on 1998. During the day, nowhere has he marked his presence, nor has he signed any document. This clearly shows that after the commissioner (commissioning ?) of the offence at 4 p.m. he immediately rushed back to his place of posting, which was about 70 kms. away, to show that he was present on duty and thereafter signed the Register at 7.30 a.m. 13. The medical evidence corroborates the ocular account. The Deras of both appellants and the complainant party are opposite to each other. away, to show that he was present on duty and thereafter signed the Register at 7.30 a.m. 13. The medical evidence corroborates the ocular account. The Deras of both appellants and the complainant party are opposite to each other. Deceased Gurnam Singh and Joginder Singh PW-1 were unarmed. Appellants who were five in number, came near to Gurnam Singh and Joginder Singh PW-1 and thereafter fired on them. The injury inflicted on Gurnam Singh was fatal. 14. We have heard the learned counsel for the parties and perused the record with their assistance. 15. The occurrence in this case has been admitted by both the parties. The question to be answered, is as to whether Gurlal Singh DW-6 brother of appellant Sher Singh was attacked by Joginder Singh PW-1 and Gurnam Singh deceased and it is thereafter Gurlal Singh DW-6 with his DBBL gun fired at them in self-defence or it were the appellants who inflicted injuries on deceased Gurnam Singh and Joginder Singh PW-1. The evidence led by the prosecution and the defence shows that appellants Amarjit Singh along with Appellant Sher Singh armed with DBBL guns attacked Joginder Singh PW-1 and deceased Gurnam Singh. The reason for their inflicting injuries on them was that appellants had a grudge that the complainant party had informed the Electricity Department regarding the theft of electricity being done by appellant Avtar Singh. Naveen Kumar PW-7 has produced the file in F.I.R No 366/98 under Section 379 I.P.C. and Section 39 of the Electricity Act, P.S. Assandh where a case was pending against appellant Avtar Singh. S.K. Makkar, S.D.E PW-8 has stated that he wrote memo Ex.PJ to the S.H.O., Assandh and it was thereafter that the case was registered against appellant-Avtar Singh for the theft of electricity. 16. Asper the statement of Joginder Singh PW-1, appellants Amarjit Singh, Amrik Singh and Kashmir Singh tried to stop their tractor trolley when they were taking fertilizer to their fields on 3.7 1998 and started abusing them. This occurrence took place in the morning. Nishan Singh PW-3 was driving the tractor, Pala Ram PW-2 and Sunehra Ram were sitting in the trolley. The land of appellant Avtar Singh is half an acre away from the land of the complainant party. This occurrence took place in the morning. Nishan Singh PW-3 was driving the tractor, Pala Ram PW-2 and Sunehra Ram were sitting in the trolley. The land of appellant Avtar Singh is half an acre away from the land of the complainant party. In the evening on the same day i.e. on 3.7 1998 at about 4 p.m., Joginder Singh PW-1 and Gurnam Singh deceased were in their Dera when appellants Avtar Singh armed with Lathi. Sher Singh armed with DBBL gun, Amarjit Singh armed with DBBL gun, Amrik Singh armed with a Gandasi and appellant Kashmir Singh driving a tractor, came to the Dera. Appellant Sher Singh fired a shot which hit the right hand of Joginder Singh PW-1 and another shot hit on his right thigh. Appellant Amarjit Singh fired at Gurnam Singh deceased which hit him on his chest. Joginder Singh PW-1 tried to snatch the gun from appellant Sher Singh and in the process, the gun broke into pieces. Pala Ram PW-2 and Nishan Singh PW- 3 who were present nearby saw the occurrence. The three eyewitnesses have not attributed any role to appellants Amrik Singh, Kashmir Singh and Avtar Singh. It seems that along with appellant Amarjit Singh and Sher Singh, Gurlal Singh DW-6 was present, but as Gurlal Singh DW-6 has been acquitted by the trial Court and the State has not filed an appeal, we would not like to comment on his role in this occurrence apart from scrutinising his statement. Appellants Amarjit Singh and Sher Singh armed with DBBL guns, came to the Dera of Joginder Singh PW-1 and inflicted fire arm injuries on Joginder Singh PW-1 and Gurnam Singh. They came on a tractor and thereafter fired at Joginder Singh PW-1 from a range of 2/3 feet. The version put forward by Gurlal Singh DW-6 that he received injuries on his head and it is thereafter he fired in his self-defence on Joginder Singh PW-1 and Gurnam Singh deceased, is not probable. Gurlal Singh DW-6 has stated in his testimony before the Court, that he was asked by his father Avtar Singh to go to the Dera for looking after. the cattle. At that time both the parties were present in Police Station Assandh. Gurlal Singh DW-6 has stated in his testimony before the Court, that he was asked by his father Avtar Singh to go to the Dera for looking after. the cattle. At that time both the parties were present in Police Station Assandh. On the way he dropped both appellants Amarjit Singh and Kashmir Singh at their Dera and when he reached near the Dera of Joginder Singh PW-1 which was opposite to his own Dera, his tractor was stopped, by Gurnam Singh deceased and Joginder Singh PW-1, who were armed with Lathis. Gurlal Singh DW-6 has further stated that he got down from his tractor. Joginder Singh PW-1 and Gurnam Singh hit him with Lathis on his face. He received 2/3 Lathi blows on his face, his teeth as also his jaw were broken. It is thereafter that Gurlal Singh DW-6 picked up his gun from the tractor and fired two shots in self- defence; one of which hit Joginder Singh PW-1 and the other hit Gurnam Singh deceased. He has further stated that Joginder Singh PW-1 and Gurnam Singh deceased went on inflicting Lathi blows and he continued shielding himself with his gun. His gun broke and it fell down. He then ran away with his tractor. 17. We called for the gun and examined it. From the statement of Gurlal Singh DW-6 it comes out that a number of Lathi blows were given and to protect himself he held the gun between himself and the Lathi blows. The barrel of the gun bears no Lathi blows, nor does the butt show any lathi blows. In fact, the butt would have broken and the barrel would have also been damaged, if it had been hit by repeated Lathi blows. The only damage to the DBBL gun is that the iron portion of the gun has been displaced from the wooden portion. This type of breakage to the gun could be done by hitting one side of the gun on the ground. Learned counsel for the State has argued that the police wanted to build up a false story to favour the appellants and it is the appellants who had damaged the gun from one point, i.e. where the iron portion joins the butt, which we are inclined to accept. 18. Gurlal Singh DW-6 has stated that when he was stopped, he got down from his tractor. 18. Gurlal Singh DW-6 has stated that when he was stopped, he got down from his tractor. Both Joginder Singh PW-1 and Gurnam Singh were armed with Lathis. Gurlal Singh DW 6 at that moment of time would have apprehended that injuries were going to be inflicted on him by Joginder Singh PW-1 and Gurnam Singh deceased, as an altercation had taken place in the morning and both the parties had been called by the police at the police station to settle the matter. Gurlal Singh DW-6 on seeing Joginder Singh PW-1 and Gurnam Singh standing with Lathis would have driven the tractor away to his own Dera, which was nearby and avoided them. Nothing has come on record to show that after being injured, Gurlal Singh DW-6 allegedly went to Police Station, Assandh. Apart from the two applications, Exs DD and DE, that both the parties on the fateful day were present at Police Station Assandh, there is nothing on record to show the presence of both the parties and what was done at the police station before Gurlal Singh DW-6 was injured and later when he reached there. 19. The blackening, charring and peppering of the wounds on the body of both Gurnam Singh deceased and Joginder Singh, in fact corroborates the ocular account. Joginder Singh PW 1 and Nishan Singh PW-3 have stated that the gun shots were fired by appellants Amarjit Singh and Sher Singh from a close range. Though they have stated that the distance was approximately 7-1/2 to 9 feet respectively. We cannot be oblivious of the fact that an exact measurement/ distance cannot be given. But still taking the barrel of the gun and the butt into consideration, which is nothing less than 4 feet, it would come to, that the appellants fired from 2/3 feet range at Gurnam Singh deceased and Joginder Singh PW-1. 20. The plea of alibi of appellant Sher Singh, that he was present in his office at Ghannon, also cannot be accepted at its face value. Once appellant Sher Singh had taken the plea of alibi, it was incumbent upon him to satisfy the Court and to create a doubt in the mind of the Court. He brought into the witness-box Sahab Singh DW-2 who has stated that Shamsher Singh (Sher Singh) was working in the Sub-Station as an Attendant in P.S.E.B. office, Ghannori. Once appellant Sher Singh had taken the plea of alibi, it was incumbent upon him to satisfy the Court and to create a doubt in the mind of the Court. He brought into the witness-box Sahab Singh DW-2 who has stated that Shamsher Singh (Sher Singh) was working in the Sub-Station as an Attendant in P.S.E.B. office, Ghannori. He occupies a quarter in the Colony and is residing with his children in the quarter. On 3.7.1998, Sahab Singh DW-2 was Incharge of the Sub-Station. He had gone to Patiala. He had brought the log-sheets of 3.7.1998 and had got the signatures of Shamsher Singh in this register at 7.15 a.m. He has further stated that Shamsher Singh has not affixed his signature on any other document. He did not do anything in the discharge of his duty on 3.7.1998, but simply remained present in the office. There is no writing in the hands of appellant Sher Singh, as he was to check only the maintenance of the Sub- Station. It is clear from the statement of Sahab Singh DW-2 that it is at 7.15 a.m. that the signatures of appellant Sher Singh were obtained on 3.7.1998. Appellant Sher Singh could have easily come, after the occurrence, as the distance between the place of occurrence and the P.S.E.B. Office, Ghannori is 70 kms. and then have himself marked present, to show that he had nothing to do with the commission of the offence. 21. Learned counsel for the appellants has laid much stress that there is a delay of 17 hours in lodging of the F.I.R. Though Prem Singh D.S.P. DW-5 in his report Ex.PF has stated that Joginder Singh PW-1 and Pala Ram PW-2 refused to give their statements, but we cannot overlook the fact that immediately the doctor thereafter, after giving his opinion that Joginder Singh PW-1 was fit to give his statement, retracted and opined that Joginder Singh PW-1 was not fit to make a statement. The occurrence took place on 3.7.1998 at 4 p.m. The statement of Joginder Singh PW-1 was recorded on 4.7.1998 at 9.15 p.m. Pala Ram PW-2 was also asked by the Investigating Officer to give his statement, but he refused. Delay in lodging of the FIR leads to roping in and false implication. We are of the opinion that Kashmir Singh, Avtar Singh and Amrik Singh have been falsely implicated. Delay in lodging of the FIR leads to roping in and false implication. We are of the opinion that Kashmir Singh, Avtar Singh and Amrik Singh have been falsely implicated. No role of any kind has been attributed by the prosecution witnesses to appellants Kashmir Singh, Amrik Singh and Avtar Singh. If they were present at the time of occurrence the least they would have done was to raise a lalkara. They would not have been mute spectators to the occurrence. They have been falsely implicated and benefit of doubt is given to them. 22. Case against appellants Amarjit Singh son of Jarnail Singh and Sher Singh son of Avtar Singh has been proved beyond reasonable doubt. Cr.A.46-DB of 2004 23. Cr.A.No.46-DB of 2004 qua appellants Kashmir Singh son of Jarnail Singh and Amrik Singh son of Jarnail Singh is allowed and they are acquitted of all the charges. This appeal qua appellant Amarjit Singh son of Jarnail Singh is dismissed. Cr.A.160-DB of 2004 24. Cr.A No 160-DB of 2004 qua appellant Avtar Singh son of Iqbal Singh is allowed and he is acquitted of all the charges. This appeal qua appellant Sher Singh son of Avtar Singh is dismissed. CrRev.686 of 2004 25. We do not find any merit in Criminal Revision No 686 of 2004 filed by Joginder Singh. It is dismissed.