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DURLABH SINGH & ANR versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Durlabh Singh & Anr v. State of Punjab - CRA-D-460-2004 [2006] RD-P&H 4080 (13 July 2006)

Criminal Appeal No. 460 DB of 2004 1

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Criminal Appeal No. 460 DB of 2004

Date of decision: 19-7-2006

Durlabh Singh and another ....................Appellants Versus

State of Punjab ....................Respondent CORAM:- HON'BLE MR. JUSTICE K.S.GAREWAL
HON'BLE MR. JUSTICE R.S.MADAN

Present: Shri T.S.Sangha, Advocate for Durlabh Singh appellant Shri K.S.Ahluwalia, Advocate, for Harpreet Singh appellant Shri Baldev Singh Senior Advocate with

Shri Sudhir Sharma, Advocate, for Chamkaur Singh, appellant Shri A.S.Virk, Additional A.G. Punjab.

K.S.GAREWAL,J.

Durlabh Singh (28) alongwith his brother Harpreet Singh (23), grand father Darbara Singh (79) of Dad, District Ludhiana, and grand father's brother Banta Singh's son Chamkaur Singh (67) of Dad Gobindpur, District Sangrur, faced trial before Additional Sessions Judge, Ludhiana for the murder of Gurminder Singh (32) and for the attempt on the life of Harjit Criminal Appeal No. 460 DB of 2004 2

Singh (PW-3). At the trial Darbara Singh was acquitted while Durlabh Singh, Harpreet Singh and Chamkaur Singh were found guilty of the offences. Durlabh Singh and Harpreet Singh were convicted under Section 302 I.P.C. and sentenced to imprisonment for life. Chamkaur Singh was convicted under Section 302/34 I.P.C. and sentenced for life. Chamkaur Singh was convicted under Section 307 I.P.C. and sentenced to rigorous imprisonment for six years. They were also sentenced under other offences and to sentences of fine which have been described in details in the judgment of the trial court. Durlabh Singh and Harpreet Singh have filed Criminal Appeal No.460 DB of 2004 while Chamkaur Singh has filed Criminal Appeal No.429 DB of 2004. Both appeals shall be decided by this common judgment.

On the morning of April 22,1999 at about 8 a.m. Harjit Singh (PW-3) came to the house of Manjinder Singh(PW-1) and Gurminder Singh (deceased) in Dad, District Ludhiana,to borrow a tractor-trolley to lift wheat chaff from his fields. Manjinder Singh's father Gurcharan Singh asked them to take tractor-trolley and get the chaff removed .Whereupon Manjinder Singh(PW-1),Gurminder Singh(deceased) and Harjit Singh went to the latter's fields and parked the tractor-trolley near the heap of chaff. Harjit Singh (PW-3) and Gurminder Singh (deceased) started for the village to collect labourers. The time was about 8-30 a.m. when they had reached Harjit Singh's fields.A Maruti car came and stopped near the tractor. Durlabh Singh, Harpreet Singh, Darbara Singh and Chamkaur Singh alighted from the car and on Darbara Singh's exhortation, that they should not be allow to go, Gurminder Singh and Harjit Singh got down from the tractor and started Criminal Appeal No. 460 DB of 2004 3

to run. Durlabh Singh opened the attack by firing from his double barrel gun towards Gurminder Singh. He then handed over his weapon to Harpreet Singh who fired two shots at Gurminder Singh. Harpreet Singh again reloaded the weapon but Chamkaur Singh snatched the gun from him and fired a shot at Harjit Singh. He fired a second shot towards Manjinder Singh.

In the meantime Gurcharan Singh had also reached the spot. Manjinder Singh and Gurcharan Singh raised alarm whereupon accused escaped towards the village alongwith their weapons. When they reached near the spot they found that Gurminder Singh had succumbed to the gun shot injuries while Harjit Singh had also sustained injuries on his left arm.

Gurcharan Singh took Harjit Singh to Daya Nand Medical College for treatment. Manjinder Singh reported the matter to the police, his statement was recorded by SI Balbir Singh (PW-13) on the basis of which F.I.R. was registered at Police Station Sadar, Ludhiana at 11.00 a.m. Special Report of the F.I.R. was received by the Judicial Magistrate Ist Class, Ludhiana at 12-20 p.m. S.I. Balbir Singh (PW-13) alongwith another police official reached the spot in the village Dad where Gurminder Singh's dead body was lying. Investigating Officer prepared site plan and then proceeded to the spot to prepare inquest report in the presence of the witnesses. Blood stained earth was also picked up from the spot. 4 empty cartridges (Ex.P-30 to Ex. P-33) were lying at the spot which were taken into possession. The dead body was set for post mortem examination to Civil Hospital, Ludhiana where post mortem was conducted by Dr. Gurcharan Singh (PW-2) and Dr.

Anil Verma at 4-30 p.m. on April 22, 1999.

The Medical Officer found the following injuries:- Criminal Appeal No. 460 DB of 2004 4

1. Lacerated wound 5"x5" right of face starting from right angle of mouth to 1" below right ear about covering right side of cheek and right side of chin upper part. Margins of wound irregular and blackened. Underneath bone partially missing.

Tongue lacerated. Multiple abrasions with light black colouration of varying sizes from 1/6"x1/6" to 1/3"to 1/6" present around the wound.

2. Lacerated wound 4 " x 3 " on posterior aspect on middle of left fore arm with multiple fractures of underneath bones exposed. Blackening of wound margins were present. Multiple abrasions with blank colouration of varying sizes from 1/6" to 1/6" to " to 1/6" present around the wound.

3. Multiple abrasions with black colouration of varying sizes from 1/6" to 1/6" to " to 1/6" present on epigestic region in an area of 4" X4".

4. Multiple lacerated wound of varying sizes from " to 1/6" to " to 1/3"in an area of 2" to 1 " on medical aspect and lower third of right fore arm. Blackening of area was present.

Underneath bones were fractured.

On exploration of the skull, there was fracture of left fronto parietal bone, brain matter lacerated and coming out. 14 pellets, two small round plastic pieces and four card board pieces ( three were small and round while one was irregular in shape) were found embedded in the area. On exploration throrax and abdominal cavity, thoracic cavity were full of blood and 13 pellets were found embedded in the right lung.

Criminal Appeal No. 460 DB of 2004 5

The cause of death was shock and haemorrhage as a result of multiple injuries due to fire arm which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature. The time that lapsed between injuries and death was almost instantaneous, the time between death and post mortem was between 8 to 10 hours.

Harjit Singh (PW-3) had been medico legally examined by Dr.

Samir Khanna (PW-7) at 10.30 a.m. The Medical Officer found abrasion 2cm x 3cm on the left forearm on dorsal aspect 8cm below elbow and multiple pellets over ventral and dorsal aspect of the hand, 0.5cm in size, abnormal swelling over proximal third medial aspect. Crepitus was present over the metacarpal.

Durlabh Singh surrendered in the court of Judicial Magistrate Ludhiana on April 24, 1999 and also surrendered his fire arm (gun Ex.P-7), a .12 bore double barrel gun, alongwith 22 cartridges.

On April 26, 1999 Durlabh Singh was interrogated in the presence of witnesses and he disclosed that he had concealed a .12 bore gun alongwith 22 cartridges in a deserted room of his house near the canal minor. The Investigating Officer was led to the stated place and gun No.

3850 (Ex.P-5, licensed gun of Darbara Singh's son of Harjap Singh) was recovered.

On the same day Harpreet Singh and Darbara Singh also surrendered in the court of Magistrate and were taken into custody. On April 27 Durlabh Singh was again interrogated and his interrogation led to the recovery of his arms licence from his house. On April 28 Harpreet Singh was interrogated and his interrogation led to the recovery of two empty Criminal Appeal No. 460 DB of 2004 6

cartridges which he had concealed in his cattle shed behind the residential house and the same are Ex. P-28 and P-29.

The .12 bore double barrel gun No. 3850 (Ex. P-5) alongwith four .12 bore cartridges Ex.P.30 to Ex.P.33 and two cartridges Ex.P.28 and Ex.P.29 and lead pellets, four cardbard wads, two white plastic wads and one cardboard cushion wad were sent for examination to Forensic Science Laboratory, Chandigarh. Gun Ex.P-7 which has been surrendered by Durlabh Singh before the Magistrate was not sent for examination. Dr. S.N.

Sharma, Deputy Director (Ballistic) reported that out of the four cartridges, three had been fired from the right barrel of the gun in question. The other two cartridges had been fired from the left barrel of the gun in question. It means that three out of Ex.P-30 to P-33 had been fired from right barrel of the gun and both Ex.P-28 and P-29 had been fired from left barrel.

According to the prosecution there was a dispute between the complainant party on the one hand and the accused party on the other over the land measuring 2 bighas. Cases were pending in the courts over the land and on account of this dispute the police of Police Station Sadar had also initiated proceedings against both the groups. Harjit Singh's land was adjacent to the land in dispute. Prosecution had also relied upon the pendency of the execution proceedings which had been taken out by Chamkaur Singh's father Banta Singh, Darbara Singh and some others against Gurcharan Singh, father of Manjinder Singh (PW-1) and others, to execute judgment and decree dated June 4, 1990.

After completion of the investigation only Durlabh Singh, Harpreet Singh and Darbara Singh were sent up for trial under Section Criminal Appeal No. 460 DB of 2004 7

302/34 and 307 I.P.C. Later vide order dated December 8, 1999 Chamkaur Singh was also summoned to stand trial under the provisions of Section 319 of the Code of Criminal Procedure.

Charges were framed against the accused to which they pleaded not guilty and claimed to be tried. Prosecution examined Manjinder Singh (PW-1), Dr. Gurcharan Singh (PW-2), Harjit Singh (PW-3), ASI Bant Singh (PW-4), HC Harsukhdev Pal Singh (PW-5), Dr. K.S.Kular (PW-6), Dr.

Samir Khanna (PW-7), HC Darshan Lal (PW-8), C. Naresh Kumar (PW-9), Harminder Singh (PW-10), Jaspal Singh (PW-11), MHC Baldev Singh (PW-12), S.I. Balbir Singh (PW-13), HC Nishan Singh (PW-14), Ahlmad Joginder Kaur (PW-15), Baldev Singh Reader to Naib Tehsildar (PW-16), Ahlmad (PW-17) and closed the case.

Accused were examined without oath under Section 313 Cr.P.C. They denied various items of prosecution evidence which appeared against them. Durlabh Singh pleaded as follows:- "Gurcharan wanted to take forcible possession of the land belonging to my co-accused Darbara Singh. Gurcharan Singh has filed civil suit against Darbara Singh and others but the said civil suit was decided in favour of Darbara Singh and others by the court of Shri B.S.Bedi and appeal against that order was also dismissed by the Hon'ble High Court. After that Gurcharan Singh in connivance with the local police wanted to take forcible possession of the land belonging to Darbara Singh and others. Darbara Singh moved many applications against Gurcharan Singh and others for which security proceedings Criminal Appeal No. 460 DB of 2004 8

were also initiated against Gurcharan Singh and others. On 22- 4-1999 some unknown persons caused the death of Gurminder Singh. Manjinder Singh in connivance with SI Balbir Singh SHO P.S. Sadar Ludhiana got a false case registered against me, Harpreet Singh and Darbara Singh."

Similar statements were made by Darbara Singh and Harpreet Singh.

Chamkaur Singh pleaded as under:-

" I am innocent. I have been falsely implicated in this case. I am share holder in a piece of land measuring 2 bighas situated at village Dad. Gurcharan Singh, father of complainant Manjinder Singh wanted to purchase my share in this land but I refused Complainant party was annoyed with me due to this fact. On 8- 4-99, I had sold my share in this land but sale deed could not be registered due to holidays and enhancement of stamp duty. I own land in village Gobindpur, Distt. Sangrur. On 21.4.1999 I had gone to Gobindpura in my car. I remained in Gobindpura till 7-00 P.M. on that day. At about 7-00 P.M. I went to village Dulha, in-laws of my son. I remained there during that night.

On the following day i.e. on 22.4.99 I went to Malerkotla to attend the bhog ceremony of Comrade Mohinder Singh. My friend Karnail Singh was with me at the time of Bhog ceremony. After attending bhog ceremony I alongwith Karnail Singh went to village Gobindpura again and after arranging wheat I returned alongwith Karnail Singh to Malerkotla in the Criminal Appeal No. 460 DB of 2004 9

evening and I remained in Malerkotla on 22.4.99 in the house of Karnail Singh with Karnail Singh. I returned to my house at my village Dad on 23.4.99 at about 12.30 P.M. S.P. City II Ludniana also conducted inquiry in this case and found me innocent."

When called upon to enter defence, the accused examined clerk Usha Rani(DW-1) who testified that Harjit Singh owned tractor no. PB- 10X-7091, Shri Sukhmohinder Singh Sandhu, Commandant 3rd I.R.B.

Ludhiana as DW-2 who testified that he was posted as Superintendent of Police, Ludhiana in April 1999 and had conducted an inquiry into the applications presented by Jaswant Kaur and Gurdial Kaur and marked to him by Senior Superintendent of Police, Ludhiana. From the inquiry it was found that Chamkaur Singh, Harpreet Singh and Darbara Singh were not involved in the case. Accordingly he submitted his report to the Senior Superintendent of Police, Gurmail Singh (DW-3), Gurdev Singh (DW-4), Gulzar Singh (DW-5), Baldev Singh (DW-6) who testified in support of the plea of Chamkaur Singh's alibi that he was present at Gobindpur, District Sangrur on the day of the occurrence and Kartar Singh (DW-7) who testified with regard to sale deeds executed by Darbara Singh, Chamkaur Singh etc. in favour of Durlabh Singh.

The learned Additional Sessions Judge came to the conclusion that Darbara Singh had been falsely implicated because it had been proved that there was civil litigation between the parties and Darbara Singh had been roped in. Darbara Singh was not armed with any weapon and as such he was given the benefit of doubt. The other accused were found guilty and Criminal Appeal No. 460 DB of 2004 10

convicted.

According to the learned counsel for the appellants, the occurrence had not taken place at 8-30 a.m. but much earlier. It was argued, on the basis of certain answers given by Dr. Gurcharan Singh in cross- examination, that the occurrence could have taken place even as early as 9/10 p.m. on April 21, 1999. Medical Officer had opined that rigor mortis starts three/four hours after death and takes 12 hours to fully develope.

Rigor mortis remains for 12 hours and then disappears. In the present case rigor mortis was fully developed and as such death could have been within 12 to 24 hours before post mortem. Even the opinion given by the Medical Officer that death could have occurred at 9/10 p.m. on April 21, 1999 was according to presence of rigor mortis which was fully developed at the time of post mortem examination.

As regards the prosecution version, learned counsel argued that the story put forth at the trial was not on the basis of what had been seen by the witnesses but what they observed when they came upon the dead body and saw that there were four fire arm injuries on the person of the deceased.

Therefore, they made up the story that four shots had been fired . As regards Harjit Singh's injury, it was argued that it had been inflicted on him in order to make him an injured eye witness and to establish his presence.

The argument on behalf of Chamkaur Singh was that he was found not to have been involved in the case in the inquiry conducted by S.P.II, Ludhiana and had not been sent up for trial but was later summoned under the provisions of Section 319 Cr.P.C. Chamkaur Singh had been named as an accused because he was the legal representative of his father Criminal Appeal No. 460 DB of 2004 11

Banta Singh who was decree holder No.1 in the decree passed by learned Additional District Judge, Ludhiana on June 4, 1990.

The manner in which the occurrence took place in the present case is, in the ultimate analysis, going to be the basis for deciding this appeal. This is because it is unusual for armed assailants to pass a gun from one to the other when they are determined to kill and escape fast. It may be that a particular gun man was hesitating to fire so his companion snatched his gun and also fired shots at the deceased. In the present case this aspect deserves to be rather closely examined.

According to Manjinder Singh(PW-1) and Harjit Singh (PW-3) Durlabh Singh was armed with .12 bore double barrel gun. He fired two shots at Gurminder Singh when he and Harjit Singh tried to run after getting down from the tractor. Gurminder Singh was hit by these shots. Thereafter Durlabh Singh handed over gun to his brother Harpreet Singh who after reloading the gun fired two more shots at Gurminder Singh. The gun was again reloaded by Harpreet Singh and snatched by Chamkaur Singh who then fired a shot towards Harjit Singh and the other shot towards Manjinder Singh and Gurcharan Singh.

Durlabh Singh rather cleverly surrendered before the learned Magistrate on April 24,1999 and handed over his own .12 bore gun which was sealed and passed on to the Investigating Officer. Nevertheless, later Durlabh Singh on interrogation got a second .12 bore gun recovered which belonged to his uncle Harjap Singh( gun No. 3850). Therefore, in fact Durlabh Singh handed over two guns to the Investigating Officer one was of his own and the other was of Harjap Singh. This may have been done to mislead the Criminal Appeal No. 460 DB of 2004 12

Investigating Officer but this does not mean that the Investigating Officer had acted fairly. The empties collected from the spot were not sent until the second gun from Durlabh Singh was recovered. This is established from the statement of HC Darshan Lal (PW-8) who testified that 4 empty cartridges alongwith other material were entrusted to him on April 26, 1999 for delivery to Forensic Science Laboratory, Chandigarh and he delivered the parcels on the same day.

Let us examine the medical evidence to see if there is a pattern in the injuries which could cast light on the manner and order in which shots were fired. Gurminder Singh deceased had four gun shots wounds on the face, both fore arms and abdomen. The injury on the face had a spread of 5"x5" and the multiple abrasion present around the wound were 1/6"x1/6" to 1/3"x 1/6".

The lacerated wound on the left forearm had a spread of 4 "x 3 " and also multiple abrasion around the wound measuring from 1/5"x 1/6" to " x 1/6".

The injury on the epigastric region was 4"x4" in spread, multiple abrasion were of varying size measuring 1/6"x1/6" to "x 1/6". The lacerated wound on the right forearm was 2"x " in spread, multiple wounds of various sizes measured from "x " to "x 1/3"

Dr. Gurcharan Singh in cross-examination stated that injuries 1 and 2 could be by one shot if the left hand of the person was placed on the right side of the face and all the injuries could be possible with two shots.

The injuries had been caused from shot fired from a close range of about 2 to 3 feet. A close examination of the four injuries on Gurminder Singh, the spread of pellets, the location of the injuries and the statement of the Medical Criminal Appeal No. 460 DB of 2004 13

Officer in cross-examination would show that the four fire arm injuries could be the result of two shots. Either the left hand was placed on the right side of the face when injury 1 was received or the deceased was clutching his abdomen with both hands and received injuries 2, 3 and 4 first and then injury 1 on the face. In either situation the deceased had been confronted with the aspect of being shot and on account of fear had either raised one hand to cover his face or clasped both arms in front of his abdomen to cover that part of the body.

As regards the injuries received by Harjit Singh (PW-3), the injuries could not have been received if he had run some distance because in that case the spread of pellets would be much larger. Therefore, either he had received pellet injuries at the same time as the deceased by one or the other shots or he received the injuries after some pellets bounced off the tractor or some other hard surface. The abrasion received by him was certainly a result of fall. However, Harjit Singh's injuries were not self suffered.

Coming to the evidence of the matching of the empty cartridges with Harjap Singh's gun recovered from the possession of Durlabh Singh, it will be seen that one cartridge was not capable of comparison as its percussion cap had been punctured and there were no other sufficient enough characteristics marks available on it. However, the three other cartridges from the parcel containing four cartridges had been fired from the right barrel of the gun. These are the four cartridges which had been recovered from the spot. The two cartridges recovered from the possession of Harpreet Singh had been fired from the left barrel of the gun.

Criminal Appeal No. 460 DB of 2004 14

This sounds a bit confusing because when a gun is reloaded after both the barrels have been discharged then the empty cartridges which would fall on the ground would not be from the same barrel. If the accused had arrived at the scene with a loaded gun, discharged both barrels and then reloaded it and again discharged both barrels, and reloaded for the third time, the four empty cartridges recovered from the ground will be, two from one barrel and two from the other. There would not be three from the right barrel.

Similarly, the two remaining cartridges which remained in the breech of the gun after the shots had been fired, would not both be matching with the left barrel only.

For this reason the matching of the cartridges with the gun in question may be positive but the way in which three matched with the right barrel and two with the left barrel is certainly very fishy. C. Naresh Kumar (PW-9), on affidavit had stated that it was on May 4, 1999 that MHC Baldev Singh had handed over to him the gun and a parcel containing two empty cartridges. It seems that after the gun was recovered, six shots were fired from it but the Investigating Officer mixed up the empty cartridges by sending four fired by the right barrel on April 26 showing that they had been recovered from the spot and the two fired from the left barrel on May 4 showing that these had been recovered from the possession of Harpreet Singh. Comedy of errors or deliberate padding, however one may look, the ballistic evidence was unsatisfactory.

In view of the above discussion we have no hesitation in holding that the same gun had not been passed around to be used by the three appellants to fire two shots each. If the gun was not passed around and Criminal Appeal No. 460 DB of 2004 15

the shots that were received by the deceased could be two, as per the medical evidence, and the shot which hit Harjit Singh was either a stray one or caused by pellets from the shots aimed at the deceased, we are convinced that there was only one gunman who had fired at the deceased and Harjit Singh (PW-3).

On behalf of the State learned Additional Advocate General argued that two shots each had been fired by the appellants, but it is not the prosecution case that all six shots had hit their target. Some shots may have been missed. Therefore, even if only two shots hit the deceased and one hit the witness, the prosecution case that all three were involved could not be discarded. We cannot agree with this submission as the ballistic evidence does not seem to support the theory of three gunmen. Indeed the empty cartridges recovered from the spot were part of the padding process which the police ofteneagerly undertakes to bolster the police case.

We have examined the site plan of the place of occurrence and find that the place where Gurminder Singh's dead body was lying was only 5ft from where Harjit Singh had stood when he was hit. The spot from where the accused had fired was about 20 to 24 ft from where the deceased and the witness had been standing. Manjinder Singh and his father Gurcharan Singh were much further away, at about 80ft from the dead body.

Still further was the place from where the heap of chaff was located (150 ft from the dead body). The tractor was standing about 25 ft from the dead body.

The manner in which the occurrence had taken place had been somewhat exaggerated. The parts placed by Harpreet Singh and Chamkaur Criminal Appeal No. 460 DB of 2004 16

Singh do not stand proved on the basis of the medical/ballistic evidence.

Courts always look for corroboration of the eye-witness account particularly when there is some doubt about the manner in which the occurrence had taken place. In the present case doubt has not been dispelled. We are, therefore, of the view that only Durlabh Singh was present at the spot and only he had fired two or three shots at the deceased and Harjit Singh.

Therefore, Durlabh Singh was guilty under Section 302 I.P.C. for the murder of Gurminder Singh and under Section 307 I.P.C. for attempt on the life of Harjit Singh and under Section 27 of the Arms Act. The other accused deserve benefit of doubt.

Consquently appeal of Durlabh Singh is dismissed. Appeals filed by Harpreet Singh and Chamkaur Singh are accepted. Their conviction and sentences are sent aside. They be set at liberty forthwith if not required in any other case.

(K.S.GAREWAL)

JUDGE

(R.S.MADAN)

JUDGE

July 19,2006

RSK


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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