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2007 DIGILAW 39 (PNJ)

Harbans Singh v. State Of Punjab

2007-01-12

ARVIND KUMAR, MEHTAB S.GILL

body2007
Judgment Mehtab S.Gill, J. 1. We shall be deciding Criminal Appeal No.574-DB of 1997, Criminal Appeal No.584-DB of 1997, Criminal Appeal No.610-DB of 1997 and Criminal Revision No.1019 of 1997 by a common order, as they arise out of the same judgment dated 7.8.1997 of the Additional Sessions Judge, Gurdaspur. Appellants Harbans Singh son of Dewan Chand Bedi. Mohanjit Singh, Amir Singh, Bhupinder Singh sons of Harbans Singh Sukhbir Singh son Harbhajan Singh and Dilbagh Singh son of Charan Singh were convicted under Section 120-B IPC and sentenced to undergo seven years rigorous imprisonment and to pay a tine of Rs.1,000/- each. In default of payment of fine, to further undergo ,rigorous imprisonment for one month. Sukhbir Singh and Dilbagh Singh were convicted under Section 302 IPC and sentenced to life imprisonment and to pay a fine of Rs.5,000/- each. In default of payment of fine, to further undergo rigorous imprisonment for six months. Appellants Harbans Singh, Mohanjit Singh, Amir Singh and Bhupinder Singh were convicted under Section 302/149 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-. In default of payment of fine, to further undergo rigorous imprisonment for six months. 2. The case of the prosecution is unfolded by the statement Ex.PD of Narinjan Singh son of Jaswant Singh given to ASI Jarnail Singh at 4.45 a.m. on the Pub Sua (Bridge) of Village Taragarh. Narinjan Singh stated that he is a resident of village Vinjwan. At about 9.00 p.m., there was a knock at their gate Narinjan Singh along with his father Jaswant Singh, who was the Sarpanch of the Village opened the gate. Two Sikh youths entered in their house. Both were armed with AK47 rifles. They told Narinjan Singns father that the place of school, which was under dispute, was to be decided. A portion of the land of the school was under the possession of Mohanjit Singh, Amar Singh and Bhupinder Singh cr Shastri, all sons of Harbans Singh. This land was demarcated about 15-20 days back by the Revenue department and a grant of Rs. One lac was sanctioned for the construction of the school. Narinjan Singhs father told the Sikh youths that he cannot decide the matter alone. He stated that the members and the Lamardar of the village be also called. This land was demarcated about 15-20 days back by the Revenue department and a grant of Rs. One lac was sanctioned for the construction of the school. Narinjan Singhs father told the Sikh youths that he cannot decide the matter alone. He stated that the members and the Lamardar of the village be also called. The two Sikh youths then made Jaswant Singh to move towards the house of Mohinder Singh Lambardar. Narinjan Singh followed them. Mohinder Singh was called out. He was also taken alone and they went to the house of Hardev Singh Member Panchayat. The Sikh young men, who were militants, called upon Hardev Singh to come out, who came out and thereafter, they said that the matter regarding the land of the school be decided. The Sikh youths then took Narinjan Singns father, Lambardar Mohinder Singh and Member Panchayat Hardev Singh towards the side of the school outside the village. Narinjan Singh followed them. When they were at a distance of about 60/70 yards away from the school, the Sikh youths made Mohinder Singh Lambardar, Hardev Singh Member Panchayat and Jaswant Singh, the father of the complainant to sit. One of the Sikh youths then went to call Harbans Singh. After about 5/6 minutes, he returned and directed the complainants father (Jaswant Singh) to stand up. Thereafter, he accused Jaswant Singh, that he is the Sarpanch of the village and not allowing them (accused Harbans Singh and party) to live peacefully and he was now going to construct a school over their land forcibly. The Sikh youths then fired a burst from his AK47 rifle, which hit Jaswant Singh and Jaswant Singh fell down. They told Lambardar Mohinder Singh and Member Panchayat Hardev Singh to run away. Narinjan Singh out of fear for his life, held in the fields. In the morning, he went and saw that his father was lying dead. The terrorists were wearing Kurta Pajamas and were medium built. They were about 25/30 years old. Narinjan Singh stated that he can identify the terrorists. He further stated that he had doubt that Harbans Singh and his sons Mohanjit Singh, Amir Singh and Shastri had got his father killed. On the basis of the statement Ex.PD, FIR EX.PD/2 was recorded on 27.12.1991 at 5.12 a.m. and the special report reached J.M.I.C., Batala on the same day at 6.30 a.m. 3. He further stated that he had doubt that Harbans Singh and his sons Mohanjit Singh, Amir Singh and Shastri had got his father killed. On the basis of the statement Ex.PD, FIR EX.PD/2 was recorded on 27.12.1991 at 5.12 a.m. and the special report reached J.M.I.C., Batala on the same day at 6.30 a.m. 3. The prosecution to prove its case brought into the witness box Dr. Sukhdip Singh as PW1, Narinjan Singh as PW2, Mohinder Singh as PW3, Amrik Singh ASI as PW4, Dilbagh Singh as PW5, Subhash Chander as PW6, Surinder Pal as PW7 and Jarnail Inspector as PW8. 4. Learned counsel for the appellants, Shri M.S. Riar, Senior Advocate has stated, that Harbans Singh son of Dewan Chand had died and thus, the appeal against him has abated. Appellant Tarlok Singh did not face trial and has been declared a claimed offender. 5. Learned counsel for the appellants has argued, that the dispute was that appellants Harbans Singh and his sons were in possession of some portion of the School land. It is an admitted fact that Panchayat had filed an ejectment application through its Secretary before the competent authority. Nowhere did the deceased sign on the papers no sign on the application nor had he pursued the case in his capacity being the Sarpanch. Infact deceased Jaswant Singh, who was the Sarpanch, did not take interest in the land being got vacated from the appellants. It was the Secretary, who is a Govt. official, who was taking interest. If the appellants had any grievance, they would have a grievance against the Panchayat in general and the Secretary in particular, who had filed the application for ejectment. There was no previous history of enmity nor any dispute between the parties. The presence of both Narinjan Singh PW2 and Mohinder Singh PW3 is doubtful; as it has been stated by Narinjan Singh PW2 that it was a dark night. The version of an electric light being there, is an improvement, which does not find any mention in the FIR. Learned counsel for the appellants has further argued, that there is no direct or indirect evidence regarding the hatching of the conspiracy. In the FIR and in the statement of Narinjan Singh PW2, nothing has come forward qua the conspiracy being hatched by appellants Harbans Singh, Mohanjit Singh, Amar Singh and Bhupinder Singh for the murder of Jaswant Singh. Learned counsel for the appellants has further argued, that there is no direct or indirect evidence regarding the hatching of the conspiracy. In the FIR and in the statement of Narinjan Singh PW2, nothing has come forward qua the conspiracy being hatched by appellants Harbans Singh, Mohanjit Singh, Amar Singh and Bhupinder Singh for the murder of Jaswant Singh. The mere presence of the sons of Harbans Singh does not mean anything. It is strange that the enmity was between the sons of Harbans Singh did not utter a word accusing the deceased of any wrong doing. 6. The identification of both appellants Sukhbir Singh and Dilbagh Singh was doubtful. No identification parade was held. The prosecution shied away from identification of both appellants Sukhbir Singh and Dilbagh Singh, as they knew that the prosecution witnesses would falter. It has been stated by Inspector Jarnail Singh PW8, the Investigating Officer, that ASI Piara Singh arrested both Dilbagh Singh and Sukhbir Singh, but strangely ASI Piara Singh has not been produced. 7. Learned counsel for the State has argued, that FIR Ex. PD/2 has been recorded promptly. There was not delay in sending the special report to the Ilqua Magistrate. This itself goes a long way in proving the case of the prosecution. The motive for the commission of the offence by Amir Singh, Mohanjit Singh and Bhupinder Singh @ Shastri cannot be overlooked, as they were in possession of the disputed land, which belonged to the school and Jaswant Singh being the Sarpanch of the village, was wanting to have the land vacated to construct a school building for which a grant also had been sanctioned. Appellants Amir Singh, Mohanjit Singh and Bhupinder Singh then hired appellants Sukhbir Singh and Dilbagh Singh to commit the murder of Jaswant Singh. If it was a case of only the militants killing Jaswant Singh, as made out by the defence, that he was a police informer, then they would not have taken .Jaswant Singh next to house of Harbans Singh, but would have shot him in his house or outside in the street. It is after taking .Jaswant Singh near the house of Harbans Singh and after showing Jaswant Singh to Harbans Singh and his sons that .Jaswant Singh was shot dead. It is after taking .Jaswant Singh near the house of Harbans Singh and after showing Jaswant Singh to Harbans Singh and his sons that .Jaswant Singh was shot dead. The eye witness account as narrated by Narinjan Singh PW2 and Mohinder Singh PW3 is corroborated by the medical evidence and also both Narinjan Singh PW2 and Mohinder Singh PW3 corroborated each other inter se Mohinder Singh Lambardar PW3 is an independent witness and nothing has come on record, that he is inimical towards the appellants or he is a friend of deceased Jaswant Singh. 8. We have heard the learned counsel for the parties and perused the record with their assistance. Occurrence in this case had taken place on 26.12.1991 at about 9.00 p.m. in the area of Village Vinjwan, Police Station Batala Sadar. Narinjan Singh PW2 got recorded his statement Ex.PD with ASI Jaswant Singh PW8, at the bridge of village Taragarh on 27.12.1991 at 4.45 a.m. Formal FIR Ex.PD/2 came into existence on the same day i.e. on 27.12.1991 at 5.15 a.m. and the special report reached the J.M.I.C., Batala on the same day at 6.30 a.m. There is no delay in lodging of the FIR. The names of the appellants Harbans Singh (since dead), Amir Singh, Mohanjit Singh and Bhupinder Singh @ Shashtri sons of Harbans Singh have been mentioned. The two militants, who could not be naturally identified, as they not known to complainant Naranjan Singh PW2 at that moment of time, have been described by appearance. Their weapons of offence i.e. AK47 rifles have been mentioned. Eight empty cartridges of AK47 were recovered by Jaswant Singh Inspector PW8 from the place of occurrence. The promptness in lodging of the FIR goes a long way in proving the guilt of the appellants. Dr. Sukhdip Singh PW 1, who conducted the post mortem on the dead body of Jaswant Singh, has given in detail the injuries., all being gunshot wounds. 9. The two eye witnesses to the occurrence Narinjan Singh PW2 and Mohinder Singh PW3 get corroboration from the medical evidence and both have corroborated each other inter se. Narinjan Singh PW2 has stated, that he along with his father Jaswant Singh opened the door of their house. 9. The two eye witnesses to the occurrence Narinjan Singh PW2 and Mohinder Singh PW3 get corroboration from the medical evidence and both have corroborated each other inter se. Narinjan Singh PW2 has stated, that he along with his father Jaswant Singh opened the door of their house. Appellants Sukhbir Singh and Dilbagh Singh then asked ,Jaswant Singh to accompany them to the houses of Mohinder Singh Lambardar PW3 and Member Panchayat Hardev Singh so that the dispute over the school land could be resolved. This was only a plot to take Jaswant Singh to the house of Harbans Singh and his sons so that Jaswant Singh could be eliminated before their eyes. It has come in evidence that the house of Harbans Singh was about 60/70 yards away from the place of occurrence. One of the militants after taking Jaswant Singh, Mohinder Singh Lambardar and Hardev Singh Member Panchayat to the house of Harbans Singh, went in the house of Harbans Singh and after he came out and it is then that Jaswant Singh was shot in from of them. There was a clear conspiracy on the part of appellants Amir Singh, Mohanjit Singh and Bhupinder Singh @ Shastri, who connived with appellants Sukhbir Singh and Dilbagh Singh to elminate Jaswant Singh Sarpanch. It has come in evidence of Narinjan Singh PW2 that it was after talking to Harbans Singh and others that his father Jaswant Singh was shot. 10. We can safely presume that appellants Sukhbir Singh and Dilbagh Singh opened fire on Jaswant Singh after getting the green signal from Harbans Singh and his sons. During the examination-in-chief of Narinjan Singh, he was put a question "Whether any of those Sikh gentlemen is present in the court or not?" The answer to this question was "Both two Sikh gentlemen are present in court among the accused". Narinjan Singh PW2 was referring to the two Sikh gentlemen when he was question on their identification. In his cross- examination, nothing has come forward from the side of the defence to demolish this statement or to demolish the identification, which was done by Narinjan Singh PW2 of the two militants i.e. Sukhbir Singh and Dilbagh Singh. Similarly, Mohinder Singh PW3 has stated, that when he was taken along with by the militants, he looked back and saw that Narinjan Singh PW2 was following them. Similarly, Mohinder Singh PW3 has stated, that when he was taken along with by the militants, he looked back and saw that Narinjan Singh PW2 was following them. He (PW3) in his examination-in-chief has reiterated whatever Narinjan Singh PW2 has stated. No cross- examination worth the name has been done to this witness by the defence and practically conceded what this witness has said in his examination-in-chief. He (PW3) has stated that there was an electric light on, from where they could see the occurrence taking place. All the cross-examination, which has been done of this witness from start to finish, is of 30 lines only. One cannot over looked this fact, that Mohinder Singh PW3 is an independent witness. He is not inimical towards the accused nor he is friendly to the complainant party. As to why this eye-witness was not put to a grueling cross-examination, is only going against the defence. 11. The motive for the commissioner of offence is very strong. It is conceded that an ejectment application was fled by the Secretary of Panchayat for the school land, which was in possession of appellant Harbans Singh (dead) and his sons. The Secretary had filed it on the asking of the Panchayat, which was a police informer and the terrorists had killed him, does not fit into the way the occurrence had taken place. If Jaswant Singh was a police informer, there was no need for the militants to take him near the house of Harbans Singh and then after talking to Harbans Singh and his sons, then to commit his murder. He would have been shot dead by the militants immediately on his being seen by them when he had opened the door. 12. We do not find any infirmity in the judgment of the learned trial Court.