Over 2 lakh Indian cases. Search powered by Google!

Case Details

STATE OF PUNJAB versus JARNAIL SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


State of Punjab v. Jarnail Singh & Ors - CRA-D-445-DBA-1995 [2006] RD-P&H 7679 (22 September 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. Appeal No.445-DBA of 1995,

Date of decision : October 10, 2006.

State of Punjab

.... Appellant

versus

Jarnail Singh and others

... Respondents

Crl. Appeal No.232-SB of 1995

Jarnail Singh and others

... Appellants

versus

State of Punjab

... Respondent

Crl. Revision No.514 of 1995

Piaro

... Petitioner

versus

Jarnail Singh & others

... Respondents

CORAM : HON'BLE MR. JUSTICE VIRENDER SINGH
HON'BLE MR. JUSTICE A.N. JINDAL

Present : Mr. M.S. Sidhu, Sr. DAG, Punjab.

Mr. Vinod Ghai, Advocate

for the respondent No.3.

Mr. B.S. Bhasaur, Advocate

for the respondents No.1,2,4 & 5 and

for the appellants in Crl.A. No.232-SB of 1995 Mr. A.P.S. Deol, Advocate

for the complainant.

A.N. JINDAL, J.

This judgment disposes of Criminal Appeal No.445-DBA of 1995, Criminal Appeal No.232-SB of 1995 and Criminal Revision No.514 of 1995 as having been arisen out of the judgment dated 6.3.1995 passed by Sessions Judge, Bathinda, under Sections 148/302/307/326/323 read with Section 149 of Indian Penal Code.

The case relates to the murder of Gurdial Singh and for causing injuries to Dayal Singh, Kaka Singh, Gurmail Kaur and Piaro, for which initially 8 Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

accused namely Jarnail Singh son of Nahar Singh, Gurjant Singh alias Janta, Pargat Singh, Gurmail Singh alias Meli son of Bachan Singh, Gurmail Singh son of Nahar Singh, Shingara Singh, Bibi alias Dalip Kaur and Raj Singh alias Raju were challaned. However, during the pendency of the trial, Shingara Singh, Bibi alias Dalip Kaur and Raj Singh alias Raju died and proceedings against them were abated.

Consequently, remaining five accused faced trial for the charges under Sections 148/302/307/326/323/325/149 IPC. Consequently, Sessions Judge, Bathinda, vide his judgment dated 6.3.1995 acquitted all the accused under Sections 302/326/323/325/307/148/149 IPC. However, accused Jarnail Singh was convicted under Section 304-I for the murder of Gurdial Singh and under Section 25 of the Arms Act for possession of unlicensed gun; Gurmail Singh son of Bachan Singh was convicted under Section 324 IPC for causing injuries to Kaka Singh alias Kakkar Singh and Piaro; accused Gurjant Singh was convicted under Section 30 of the Arms Act for handing over his licensed gun to Jarnail Singh and they were sentenced as under :-

Jarnail Singh

U/s 304(I) IPC : To undergo rigorous imprisonment for 10 years and to pay fine of Rs.2000/-. In

default of payment of fine to further

undergo rigorous imprisonment for three

months.

U/s 25 of Arms Act : To undergo rigorous imprisonment for 3 years and to pay fine of Rs.500/-. In

default of payment of fine to further

undergo rigorous imprisonment for one

Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

month.

Gurmail Singh son of Bachan Singh

U/s 324 IPC : To undergo rigorous imprisonment for two years for causing injuries to Kaka

Singh.

U/s 324 IPC : To undergo rigorous imprisonment for two years for causing injuries to Smt.

Piaro.

Gurjant Singh alias Janta

U/s 30 of Arms Act : To pay fine of Rs.2000/-. In default of payment of fine to undergo rigorous

imprisonment for three months.

However, all the substantive sentences were ordered to run concurrently.

The accused and deceased are from one family.

Mann Singh had two sons namely Rulia Singh and Prem Singh. Rulia Singh had three sons namely Kaka Singh alias Kakkar, Dial Singh and Gurdial Singh. Gurdial Singh had two sons and four daughters namely Mohinder Singh, Kewal Singh, Smt.Gurmail Kaur, Smt. Piaro, Palo and Nikki. Out of these persons, Kaka Singh, Dial Singh, Gurmail Kaur and Piaro are the injured, whereas Gurdial Singh was murdered. Mohinder Singh was earlier murdered by Nachhattar Singh son of Saun Singh son of Rulia Singh. Saun Singh had four sons namely Gurdev Singh, Labh Singh, Mewa Singh, Nachhattar Singh (accused in the murder case of Mohinder Singh son of Gurdial Singh).

Bibi (died during trial) and Surjit Kaur wife of Nahar Singh had three sons namely Jarnail Singh, Gurmail Singh alias Meli and Raju (died during Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

trial). Now out of aforesaid persons Jarnail Singh and Gurmail Singh are accused in this case. Other accused namely Pargat Singh, Gurjant Singh and Gurmail Singh son of Bachan Singh are the close associates of accused Jarnail Singh and Gurmail Singh.

There was a land dispute between two groups.

Nachhattar Singh son of Saun Singh had got transferred some land by impersonation. Gurdial Singh had filed a suit against Nachhattar Singh son of Saun Singh regarding land measuring 40 kanals 18 marlas claiming ownership over the land and challenging the order of Assistant Commissioner dated 18.2.1987 and order dated 28.7.1987 passed by Assistant Collector, Grade-I, Mansa. It also requires to be mentioned that the accused Jarnail Singh, Pargat Singh, Gurmail Singh alias Meli son of Bachan Singh and Gurmail Singh son of Nahar Singh are the residents of village Shahpur Kalan, Police Station Longowal, District Sangrur and accused Gurjant Singh alias Janta is resident of village Jharon, Police Station Longowal, District Sangrur, whereas occurrence took place at village Heeron Kalan, Police Station Bhikhi, District Bathinda.

Mohinder Singh son of Gurdial Singh was married to Charanjit Kaur sister of Joginder Singh complainant resident of village Boha Gaddar Patti, situated near Boha, only 1- months prior to the occurrence, he was murdered for which Nachhattar Singh son of Saun Singh brother of Bibi accused ( since deceased ) and maternal uncle of Jarnail Singh, Gurmail Singh and Raju is facing trial. Gurdial Singh (deceased) was the eye witness in the said murder case. On the Bhog ceremony of Mohinder Singh, complainant re-married his sister Charanjit Kaur with Kewal Singh brother of Mohinder Singh and he himself started Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

residing at village Heeron Kalan for the safety of his sister.

On 10.3.1989, the complainant along with Gurdial Singh, Kaka Singh and Dial Singh had gone to irrigate their fields. At about 8/9.00 PM Gurmail Kaur and Piaro daughters of Gurdial Singh came to the fields and informed them that some fires were shot in the village. At this, complainant along with his companions left for the village and when they were just entering their house from the side of village Pond, then all of a sudden, Jarnail Singh alias Bhola Singh, Gurmail Singh son of Bachan Singh, both armed with 12 bore guns, Pargat Singh, Shingara Singh, Gurjant Singh Gurmail Singh son of Nahar Singh and Raju armed with gandasas emerged there. In the meanwhile, Jarnail Singh alias Bhola Singh fired a shot with his gun at Gurdial Singh which hit his left thigh. He fired another shot hitting Gurdial Singh on the middle finger of his right hand. Gurmail Singh alias Meli and Pargat Singh inflicted blows with their respective weapons from the sharp sides to Gurdial Singh which hit him on the fingers of his right and left hands.

Gurmail Singh alias Meli fired two shots at Kaka Singh which hit him on the front side of his right shoulder and back of the right biceps. Gurmail Singh then fired another shot to Piaro daughter of Gurdial Singh on the upper side of her upper ankle. Shingara Singh inflicted gandasa blow to Gurdial Singh on the left side of his forehead. Then Raju and Shingara Singh inflicted more blows from the reverse side of their gandasas to Gurmail Kaur daughter of Gurdial Singh which hit on her left hand. At that time electric power was on in the courtyard. On raising hue and cry "maar ditta, maar ditta" by the injured, the accused fled away from the spot with their respective weapons. During scuffle accused Gurmail Singh alias Meli son of Bachan Singh also received injuries at the hands Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

of his co-accused. The injured were removed to the Civil Hospital, Sunam whereas Joginder Singh and Jaswant Singh went to the police station Bhikhi and Joginder Singh got recorded his statement Ex.PO on the same day i.e. 10.3.1989 at 11.30 PM, vide DDR No.29 on the basis of which FIR Ex.PO/1 was registered at Police Station Bhikhi and the same reached the Illaqa Magistrate on 11.3.1989 at 6.35 AM.

It may be mentioned here that before the death of Gurdial Singh, ASI Rup Singh from police station Sunam had recorded the statement of Gurdial Singh Ex.PW8/A. However, sensing that the case pertained to the area falling within the jurisdiction of Police Station Bhikhi, he forwarded the said statement to the Police Station, Bhikhi at 2.00 AM on 11.3.1989 whereas the case had already been registered in the Police Station Bhikhi at 11.30 PM on the statement of Joginder Singh complainant.

After registration of the case, Inspector Gian Singh, SHO, Police Station Bhikhi handled the investigation. He went to the hospital, collected the medico-legal reports of Gurdial Singh, Dial Singh, Kaka Singh, Piaro and Gurmail Kaur. He prepared the inquest report of the dead body of Gurdial Singh, collected blood stained clothes of the injured and took the same into possession. He also found four 12 bore empty cartridges at the spot and took the same into possession. He also lifted the blood stained earth, blood stained belongings of the deceased and 15 pallets which were also taken into possession. He also prepared the rough site plan of the place of occurrence, recorded statement of the witnesses and searched for the accused.

On 25.3.1989, he arrested Jarnail Singh, Shingara Singh, Gurmail Singh alias Meli and the remaining accused were also Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

arrested on 2.4.1989.

On interrogation, the accused Jarnail Singh made disclosure statement and in pursuance of the same got recovered one 12 bore double barrel gun from the underneath of Paralli (Rice cheff) which was taken into possession. The investigation of this case was also conducted separately. Accused Gurmail Singh son of Nahar Singh in pursuance of his disclosure statement got recovered gandasa from the underneath of sticks lying in the courtyard. Accused Pargat Singh got recovered one blood stained gandasa from the heap of cotton stocks lying in his house. On 2.4.1989 accused Gurjant Singh was apprehended at bus stand Jasarwal and 12 bore gun with two live cartridges were recovered from him. Accused Shingara Singh also got recovered gandasa from the underneath the heap of charri lying in the courtyard of his house. On completion of investigation, they were challaned.

On finding a prima facie case all the accused were charge sheeted under Section 148 IPC. Accused Jarnail Singh, Gurmail Singh and Pargat Singh were charge sheeted under Section 302 IPC whereas accused Gurmail Singh alias Meli and Gurjant Singh were charge sheeted under Section 302/149 IPC. Further accused Gurmail Singh alias Meli was charge sheeted under Section 307 IPC whereas accused Jarnail Singh, Gurmail Singh, Pargat Singh and Gurjant Singh were charge sheeted under Section 307/149 IPC.

Accused Jarnail Singh, Gurmail Singh alias Meli, Pargat Singh, Gurmail Singh and Gurjant Singh were further charge sheeted under Section 323/325/326/149 IPC.

In order to substantiate the charges against the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

accused, the prosecution examined Dr. V.K. Sobat (PW-1) SMO Civil Hospital, Sunam who examined Gurdial Singh deceased on 10.3.1989 brought by his brother Dial Singh at 11.30 PM and found the following injuries on his person :-

"1. Multiple lacerated wounds 0.5 cm x 0.5 cm with inverted margins on the front of left thigh in an area of 25 cm x 27 cm with fresh bleeding present. There was swelling of whole of the left thigh.

2. Incised wound 2 cms x 0.2 cm on the back of the inter phalangeal joint of proximal & middle phalanx of right hand. Fresh bleeding was present.

X-ray was advised.

3. Multiple lacerated wounds o.5 cm x 0.5 cm on the back of the index and middle finger of right hand.

X-ray was advised.

4. Incised wound 3 cms x 0.2 cm bone deep on the lateral side of index finger of left hand proximal phalanx. X-ray was advised."

He opined that BP and pulse was un-recordable. The injury No.1 was dangerous, probable duration was fresh. He proved copy of the MLR Ex.PA and pictorial diagram showing the situs of the injuries as Ex.PA/1.

On the same night, he medico-legally examined Kaka Singh son of Rulia Singh, at about 0.30 AM on 11.3.1989. He was brought by Dial Singh. He found the following injuries on his person :- "1. Lacerated wound 1 cm x 1 cm with inverted margins on the front of right shoulder 12 cms from the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

top of right shoulder. Fresh bleeding was present. X- ray was advised.

2. Lacerated wound 0.5 cm x 0.5 cm with inverted margins on the lateral side of the right upper arm 16 cms from the top of the right shoulder. Fresh bleeding was present. Injuries No.1 and 2 were kept under observation. Probable duration of the injuries was fresh."

He opined that the injuries were the result of fire arm.

He proved the medicolegal report Ex.PB and the pictorial diagram showing the situs of the injuries Ex.PB/1.

On the same night, at about 1.00 AM, he medico- legally examined Dial Singh son of Rulia Singh, brought by Kaka Singh and found the following injury on his person :- "1. Incised wound 8 cms x 0.5 cm bone deep on the left frontal region, going obliquely upward, backward and middlelly. Lower end of the wound was 5 cms from the middle of the left eye brow. Fresh bleeding was present. Underlying bone was found fractured."

He opined that the injury was grievous in nature and probable duration of the injury was fresh. The kind of weapon used was sharp edged. He proved the medicolegal report Ex.PC and pictorial diagram showing the situs of the injuries Ex.PC/1.

On the same night, at about 1.45 AM at about 11.3.1989, he medico-legally examined Gurmail Kaur daughter of Gudial Singh and found the following injuries on her person :- Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

"1. Lacerated wound 3 cms x 2 cms bone deep on the back of base of left thumb. Fresh bleeding was present. X-ray was advised.

2. Lacerated wound 3 cms x 2 cms x bone deep on the lateral side of the base of the left thumb, 1.5 cms from injury No.1. X-ray was advised.

3. Pinkish contusion 2.5 cms x 2.5 cms on the back of left hand. Tenderness was present. There was swelling over the whole of the back of the hand.

X-ray was advised."

All the injuries were kept under observation. Probable duration of the injuries was fresh. Kind of weapon used was blunt for all the injuries. He proved MLR Ex.PD and pictorial diagram showing the situs of the injuries Ex.PD/1.

On the same night, at about 2.00 AM on 11.3.1989, he medico-legally examined Piaro wife of Rupinder Singh, brought by Dial Singh and found the following injury on her person :- "1. Lacerated wound 0.5 cm x 0.5 cm with inverted margins on the front of the left leg, 4 cms from the left ankle joint. Fresh bleeding was present X-ray was advised."

The injury was kept under observation. Probable duration of the injury was fresh and it was a fire arm injury. He proved copy of the MLR Ex.PE and pictorial diagram showing the situs of the injuries Ex.PE/1.

On the same day, he x-rayed the Injury No.1 of Piaro and observed that there was a circular radio opaque shadow. He proved Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

the x-ray report Ex.PE/3. He also x-rayed Gurmail Kaur on the same day for Injuries No.1 to 3 and found fracture of distal and of last metacarpal bone. There was no callous formation. He proved report Ex.PD/2 and its skiagram Ex.PD/3.

On the same day he x-rayed Kaka Singh for Injury No.1 and 2 and observed that there was no radio opaque shadow. He proved report Ex.PD/2 and skiagram Ex.PD/3.

Dr. H.S. Lumba (PW-2) Senior Medical Officer, Civil Hospital, Sangrur conducted autopsy on the dead body of Gurdial Singh on 12.3.1989 at 8.00 AM and found the following injuries on his body :- "1. There were 116 lacerated wounds varying from 0.5 cm to 0.5 cm and 0.75 cm to 0.75 cm in size on the front of left thigh in the middle part in an area of 25 cmsx27 cms. The thigh was swollen. On dissction clotted blood was present and the muscle and vessels were found lacerated 15 pallets were found & packed.

2. Incised wound 2 cms x 0.2 cms on the back of proximal inter-phalangeal joint of right index finger.

The underlying bone was fractured.

3. Lacerated wound 4 in number, on the back of right index finger 0.5 cm x 0.5 cm (2) and other two 0.5 cm x 0.75 cm. There was no bony injury.

4. Lacerated wounds 2 in number on the back of right middle finger 0.5 cm x 0.5 cm. There was no bony injury.

5. Incised wound 3 cms x 0.2 cm x 0.75 cm on the lateral side of proximal phalanx of the left index Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

finger. On dissection there was no bony injury.

6. Lacerated wound 0.5 cm x 0.75 cm on the front and middle of penis."

He opined that Gurdial Singh died a result of shock and hemorrhage due to multiple injuries. All the injuries were ante- mortem in nature. He proved post mortem report Ex.PN, pictorial diagram showing the situs of the injuries Ex.PN/1.

Darshan Singh (PW-3) Ahlmad in the Court of Shri Darshan Singh, Judicial Magistrate Ist Class, Mansa proved pendency of the Civil Suit No.172 of 20.3.1987, Gurdial Singh vs. Nachhattar Singh.

He further deposed that Gurdial Singh deceased had filed a suit for declaration against Nachhattar Singh regarding land measuring 40 kanals 18 marlas. He had challenged the mutation dated 18.2.1987 and had claimed title over the land.

Joginder Singh (PW-4) complainant has reiterated the graphic version of the events as detailed by him in his statement Ex.PO on the basis of which FIR Ex.PO/1 was recorded.

Gurmail Kaur (PW-5) and Piaro (PW-6) are the injured eye witnesses. They while corroborating the testimony of Joginder Singh (PW-4) have given the eye witness account of the occurrence.

Sadhu Singh (PW-7) has proved the recovery of 12 bore gun. He has testified that accused Gurmail Singh got recovered gandasa from underneath the cotton stocks lying in the courtyard of his house. Similarly, Shingara Singh and Pargat Singh also got recovered gandasas in pursuance of their disclosure statements. He has further deposed that Jarnail Singh alias Bhola got recovered 12 bore gun from Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

the heap of Prali lying in the house of Nachhattar Singh in his presence.

SI Rup Singh (PW-8) has stated that on the intervening night of 10/11.3.1989, on receipt of ruqa from SMO Sunam, at about 10/12 PM, he along with HC Rai Singh went to the hospital and after obtaining the opinion with regard to the fitness of Gurdial Singh Ex.PG/1 on the application Ex.PG, recorded the statement of Gurdial Singh which was read over to him. He proved his statement Ex.PW8/A.

He has further stated that after making his endorsement, he sent the statement to Police Station, Bhikhi. During cross-examination he stated that the injured had replied to his questions though he did not record the statement in question answer form.

Inspector Gian Singh (PW-9), Station House Officer, Police Station, Kotkapura is the Investigating Officer of this case. He has given narration inquisition proceedings conducted by him from time to time. He has stated that Joginder Singh had come to him in the police station and lodged the FIR Ex.PO/1. After that he had visited the place of occurrence where he came to know that Gurdial Singh had already expired then he sent a special report to the Illaqa Magistrate. He proved the carbon copy of the DDR Ex.PO/2. He collected medical reports of the injured Gurdial Singh, Dial Singh, Kaka Singh, Gurmail Kaur and Piaro. He prepared the inquest report Ex.PW9/A and got the autopsy conducted on the dead body of Gurdial Singh. He also took into possession blood stained parna of Dial Singh vide memo Ex.PW9/C.

Salwar of the injured Piaro vide memo Ex.PR. He lifted three 12 bore empty cartridges and took the same into possession vide memos Ex.PW9/E, Ex.PW9/F and Ex.PW9/G. He also lifted blood stained earth from the spot and took the same into possession vide memo Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

Ex.PW9/H, sample earth vide memo Ex.PW9/J and another parcel containing 15 pallets vide memo Ex.PW9/K. He prepared the rough site plan Ex.PW9/L and recorded the statements of the witnesses.

Harmesh Raj (PW-10) Ahlmad to Sub Divisional Magistrate, Sangrur proved that as per Entry No.368 dated 9.4.1981 an Arms Licence was issued to Janta Singh son of Dharam Singh of village Jharon for 12 bore gun and he was issued 12 bore gun No. 7903361.

As per entry No.93 dated 12.2.1986 an Arms Licence was issued to Gurmail Singh son of Bachan Singh of village Shahpur Kalan, Police Station Longowal for 12 bore gun and gun No.8289-84 was entered in his name.

HC Gurdas Singh (PW-11) is a witness to the recovery of articles taken into possession by the Investigating Officer from the spot.

On closure of the prosecution evidence, the accused was examined under Section 313 of Cr.P.C. in which all the incriminating evidence appearing against them were put to them to which they pleaded as incorrect. Jarnail Singh accused further explained as under :-

"I am innocent. I have been involved in this case falsely as Nachhattar Singh was my maternal uncle and Prem Singh who was issueless had given his property to him. They have involved our entire family as the land is situated at village Heeron Kalan and we are living in other village in District Sangrur. The doctor in connivance with the complainant party and so the investigating officer they challaned the entire Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

family out of which only one accused was convicted and the appeal is pending."

Accused Gurjant Singh and Pargat Singh stated that they had no concern with either of the parties or with the land and they have been falsely implicated in this case. The accused Gurmail Singh alias Meli son of Bachan Singh explained as under :- "I am innocent. I was proceeding to see Malkiat Singh on that day and when I was passing by the side of the house of Gurdial Singh in the dark night, Gurdial Singh armed with gandasa, Dial Singh armed with gandasa, Kakar Singh armed with lathi came out from behind the cotton sticks, caused me injuries and in my self defence one person whose name I came to know Raju armed with gun and other Gurmail Singh whose name I came to know later on fired in my self defence on Gurdial Singh, Dial Singh and Kakar Singh. Some persons and ladies had come there and they attacked on me. I became unconscious. I gained my consciousness on the next day at CH Mansa. Malkiat Singh was attending me and I have been involved falsely in this case. I have no concern with either party or land."

Accused Gurmail Singh son of Nahar Singh explained as under :-

"I am innocent. I have been involved in this case falsely as Nachhattar Singh was my maternal uncle and Prem Singh who was issueless had given his Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

property to him. They have involved our entire family as the land is situated at village Heeron Kalan and we are living in other village in District Sangrur. The doctor in connivance with the complainant party and so the investigating officer they challaned the entire family out of whom only one accused was convicted and the appeal is pending."

The accused in their defence examined Dr.

Rameshwar Chander (DW-1), Chief Medical Officer, MLA Hostel, Punjab. He deposed that on 11.3.1989, he was posted at Mansa on that day at about 2.25 PM, he medico-legally examined Gurmail Singh son of Bachan Singh and found the following injuries on his person :- "1. The upper 2/3rd

of right leg walls swollen as a

whole. It was bluish in colour. X-ray was advised.

2. Incised wound on the right leg at the junction of upper 2/3rd

and lower 1/3rd

size 3 cms x 1- cms.

Bone was exposed. The wound was bleeding on touching. Clotted blood was present on the right leg and foot. X-ray was advised.

3. Incised wound 6 cms below the left tibial tuberosity 3 cms x 2 cms bone exposed. The wound was bleeding on touch. X-ray was advised."

4. Incised wound in the middle of left leg 4 cms x 2 cms. The wound was bleeding on touching. Advised x-ray.

5. Swelling on the left side of occiput 4 cms x 2 cms . Advised x-ray skull."

Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

He further stated that the injuries No.2 to 4 were the result of sharp edged weapon and the injuries No.1 and 5 were the result of blunt weapon. The probable duration of the injuries was given as 24 hours. On x-ray report, injuries No.1 and 2 were found grievous in nature. During cross-examination he stated that he had not seen the original x-ray report and the x-ray film on the basis of which report was prepared.

On conclusion of the trial, learned trial Court while holding that prosecution has failed to prove its case against Pargat Singh and Gurmail Singh son of Nahar Singh acquitted them of the charges framed against them by giving them benefit of doubt. While accused Jarnail Singh alias Bhola was convicted under Section 304-I IPC and 25 of Arms Act. Gurmail Singh alias Meli son of Bachan Singh was convicted under Section 324 IPC for causing injuries to Kaka Singh and Piaro. Accused Gurjant Singh was convicted under Section 30 of Arms Act for handing over his gun to Jarnail Singh and sentenced them accordingly. Hence this appeal.

State of Punjab challenged the acquittal of all the accused under Sections 302/307/326/325/323/148/149 IPC by way of Appeal No.445- DBA of 1995 and conviction of accused Jarnail Singh under Section 304(I) IPC, Gurmail Singh under Section 324 IPC and Gurjant Singh under Section 30 of Arms Act with a prayer to modify the sentence and convict them under Section 302/307/326/325/323/148/149 IPC. Similarly, accused Jarnail Singh, Gurjant Singh and Gurmail Singh alias Meli son of Bachan Singh also preferred appeal No.232-SB of 1995 against their conviction. A Revision Petition No.514 of 1995 has also been preferred by Piaro challenging the judgment of acquittal and Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

conviction of accused for lessor offence.

We have heard Mr. Vinod Ghai and Mr. B.S. Bhasaur, learned counsel for the appellants-respondents, Mr.M.S.Sidhu, Sr. DAG, Punjab and perused the records of the case with their able assistance.

First of all coming to Appeal No.232-SB of 1995, preferred against the judgment of conviction, it has been strenuously contended by the learned counsel for the appellants that there is a serious delay in lodging the FIR and sending the special report to Illaqa Magistrate which has resulted into confabulations, fabrications and concoction of the prosecution version. The occurrence in this case took place on 10.3.1989 at 9.10 PM whereas special report reached the Illaqa Magistrate at 6.30 AM, therefore, this delay of eight hours in sending the report is fatal to the prosecution case.

Having deliberated over the issue, we do not countenance the aforesaid contention. The FIR in this case was lodged within 1- hours of the occurrence i.e. 11.30 PM during night. The records reveal that the distance between the Police Station and the place of occurrence i.e. village Heeron Kalan is eight miles. Joginder Singh (PW-4) has stated that after sending Gurdial Singh and the other injured to Civil Hospital, Sunam in a tractor trolley, he started for Police Station. His statement was recorded at Police Station, Bhikhi vide DDR No.29 at 11.30 PM on the basis of which SI Piara Singh recorded the FIR initially under Section 307/148/149 IPC and 25 of Arms Act, thereafter on expiry of Gurdial Singh offence was changed to Section 302 IPC and special report was sent by the I.O. which reached the Illaqa Magistrate on 11.3.1989 at 6.35 AM. Taking into consideration, the time consumed in shifting the injured and covering the distance from the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

place of occurrence to Police Station Bhikhi, in all human probabilities, no delay in lodging the FIR seems to have been caused; one hour could easily be consumed in reaching the police station, about hour must have been taken by the I.O. in completing the statement, therefore, obviously statement was completed at 11.30 PM on the basis of which FIR was recorded at 11.30 PM. Moreover no dispute has been raised by the accused regarding the time of occurrence, but they have disputed only about the presence of the witnesses at the spot. In addition to it, there is consistent testimony of the injured eye witnesses namely Gurmail Kaur (PW-5), Piaro (PW-6) and the other star witness namely Joginder Singh (PW-4) who had delineated the sequences of events in a graphic manner, therefore, delay, if any, in dispatch of the special report assumes no significance.

The other challenge made by the accused is regarding motive but we are not impressed by it. The facts and circumstances of the case speak for themselves that the land dispsute was main bone of contention. From the testimony of Darshan Singh (PW-3) Ahlmad in the Court of Shri Darshan Singh, Judicial Magistrate Ist Class, Mansa as well as suggestion made to Joginder Singh (PW-4) by the defence, motive stands amply established that Nachhattar Singh son of Saun Singh had allegedly got some land transferred from Prem Singh brother of his grand father Rulia Singh which has been challenged by Gurdial Singh (deceased) son of Rulia Singh on account of this grudge Mohinder Singh (husband of Charanjit Kaur and son of Gurdial Singh) has been murdered on 20.2.1989 for which Nachhattar Singh was facing trial as accused. It is significant to mention that Gurdial Singh was the eye witness of the said murder. Accused Bibi is the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

sister, Shingara Singh was the husband of Bibi (since deceased), Gurmail Singh, Jarnail Singh and Raju were the sons of Nachhattar Singh's sister Surjeet Kaur. On account of involvement of Nachhattar Singh in the aforesaid criminal case, the aforesaid accused being avengers of murder must be nursing grudge against Gurdial Singh and other injured witnesses for involving Nachhattar Singh in the aforesaid murder case. It has also come in evidence that criminal proceedings between the parties were pending, therefore, motive for commission of the crime stands duly proved against the accused.

Mr. Vinod Ghai and Mr. B.S.Bhasaur, Advocates, counsel for the accused by way of other argument, seriously doubted the presence of the complainant Joginder singh (PW-4) at the time of occurrence.

Having given our thoughtful consideration to this contention, we do not approve the same. The plausible version of Joginder Singh (PW-4) convinces the conscious of the Court to the hilt regarding circumstances which forced Joginder Singh to make stay at the village of his sister. He has disclosed that earlier his sister Charanjit Kaur was married to Mohinder Singh son of Gurdial Singh (deceased) but his brother-in-law Mohinder Singh was murdered at the hands of Nachhattar Singh on 20.2.1989. Admittedly there was enmity between the parties on account of the land dispute. The criminal proceedings between the parties were still pending. After the murder of Mohinder Singh, the complainant had re-married his sister with Kewal Singh an other son of Gurdial Singh at the time of Bhog ceremony of Mohinder Singh by way of Kareva and offering of the turban. Therefore, in all human probabilities Joginder Singh (PW-4) might have thought it Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

appropriate to make stay at village Heeron Kalan for consoling his sister Charanjit Kaur for the tragedy which she had undergone and for her safe living with her second husband.

Keeping in view the element of enmity between the parties, we as an abundant caution, have closely scrutinized the testimony of Joginder Singh (PW-4) on the touch stone of reliability, credibility and trustworthiness. Circumstances speak to volumes that he was present at the time of occurrence. He has given the graphic version in sequence of events from where his naturalness can easily be inferred. He has stated that his village Gadder Patti is at a distance of 40-45 kms from the place of occurrence. The occurrence took place at 9 or 10 PM, his statement was recorded by the police within 1- hours, therefore, his presence at the police station could not be procured and that the facts regarding the date, time, manner of occurrence, participation of the accused, weapons which they were wielded as fully detailed in the FIR Ex.PO/1 could not be tutored to him within such a short span of time.

It has also been contended by the learned counsel for the accused that had Joginder Singh (PW-4) been present at the time of occurrence then Gurdial Singh must have mentioned his presence in his statement Ex.PW8/A made by him in the hospital at Sunam before ASI Rup Singh.

The argument does not behove to our mind. No doubt, in statement Ex.PW8/A made by Gurdial Singh (deceased) before ASI Rup Singh name of Joginder Singh complainant as the persons accompanying him at the time of occurrence does not find mentioned but ASI Rup Singh (PW-8) while appearing in the witness box has stated Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

that he had asked some questions to Gurdial Singh and on the basis of the answers given by him, he had recorded his statement. Possibly he may not have asked Gurdial Singh if any other person then Dial Singh and Kaka Singh was accompanying him at that time. In any case, mere omission in dying declaration Ex.PW8/A is not of much significance because there is nothing abnormal or unusual in the same as the said dying declaration has been used as corroborative evidence to the statements of the injured witnesses as well as medical evidence. It has been observed in case Baijnath and others vs. State of U.P. 1997 Crl.

L.J. 1691 that mere omission to incorporate certain facts in the dying declaration made by the deceased in FIR lodged by the informant cannot be a ground to discredit the dying declaration. The prosecution in this case has not sought to rely upon the statement made by Gurdial Singh under Section 154 of Cr.P.C. but had sought to use it as corroborative evidence to the other direct evidence of the injured eye witness. If this dying declaration of Gurdial Singh Ex.PW8/A is excluded from consideration, even then there is ample evidence on record including the testimony of stamped witnesses which remain unaffected by the statement Ex.PW8/A.

While taking the case from another angle, the Investigating Officer must have recorded his statement keeping in view the provisions of Section 32(1) of Evidence Act and not with a view to collect evidence regarding other circumstances i.e. as to who were the persons accompanying the declarant. Otherwise also, from the bare reading of Ex.PW8/A whatever has been seen by the deceased has been narrated by him. He may not have recognized the other persons due to darkness or due to the reason that he has been badly injured by Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

Jarnail Singh alias Bhola and thereafter he fell down. The other witnesses who suffered injuries deposed about those who caused injuries to them. As such the omission of the name of Joginder Singh as a person accompanying the deceased at the time of occurrence and non-recognition of the other accused except Jarnail Singh alias Bhola and Gurmail Singh alias Meli son of Bachan Singh is not sufficient to throw away the prosecution version as a whole.

We are also not in agreement with this contention that had the complainant been present at the spot, then he would have not been spared; he would have accompanied the injured to the hospital and would have also come forward at the rescue of the injured, because the witness has duly clarified during his cross-examination that on seeing the accused, he had concealed himself behind the cotton sticks.

As regards the other contention that this witness did not come forward at the rescue of the injured, while developing in our mind the graphic description of the scene, it can well be observed that when the accused had attacked the injured with fire arms, then witness may have preferred to retrace then to come forward to fell prey in the hands of the accused.

As regards the third contention, the witness in his very first version deposed that he after sending the injured to the hospital he and Jaswant Singh proceeded towards the Police Station for lodging the FIR. Since Dial Singh who had suffered only one injury and Kaka Singh two injuries and that they were in a position to move about, therefore, he preferred to proceed to the police station after deputing Dial Singh and Kaka Singh to company Gurdial Singh and the other injured to the hospital. The enmity between the parties was sought to be used as a sword by the accused to challenge the testimony of Joginder Singh (PW-4). To our Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

mind, the same lacks merit. No doubt, Joginder Singh is the brother of Charanjit Kaur and brother-in-law of son of the deceased Gurdial Singh, but his testimony cannot be discarded on account of his relationship as such. Even the relative witnesses cannot be discarded merely on account of their relationship but the Court in case of relation witnesses should come on guard to scrutinize the testimony with more care and caution so as to rule out any fabrication or false implication.

As we have observed in preceeding paras that , this witness has withstood the test of cross examination and his veracity could not be impeached or discredited on any count by the defence.

Even otherwise the relative witnesses will be the last persons to substitute the real culprits with the accused. Further more, it is not a simple case where the prosecution has placed reliance only on the testimony of relative witness rather his testimony stands fully corroborated by the injured witnesses namely Gurmail Kaur (PW-5) and Piaro (PW-6). Their testimony do not suffer from any such infirmity which may belie the prosecution version. The ocular version fits in with the medical evidence. As such we are of the consistent opinion that there is nothing to indicate which may be able to raise our eye brows to discard the testimony of Joginder Singh (PW-4) and the other stamped witnesses. As such the testimony of these witnesses cannot be discarded for their enmity with the accused.

It is well settled, by now, that where the enmity is the motive for committing the crime then testimony of the witness cannot be discarded merely on the ground that he is relation or a inimical witness.

The Apex court in Anil Rai vs. State of Bihar 2001(3) RCR (Criminal)

722. while dealing with the value of inimical witnesses observed as Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

under :-

"The admitted position of law is that enmity is double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused.

Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye witnesses which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eye witnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye witnesses, the deposition of whom is otherwise consistent and convincing."

The crux of the aforesaid judgment delivered by the Apex Court is to lay much stress to scrutinize the testimony of the eye witness with due care and caution where element of enmity is involved in the crime and also in order to sift the grain from cheff and reach the truth. The Courts should take care that the prepetrators of the crime should not to make the enmity as a shield and an instrument to put a curtain over the prosecution version and nip the crime in the bud.

Mr. B.S. Bhasaur, learned counsel for the appellants has further raised the controversy that the witnesses Gurmail Kaur (PW- 5) and Piaro (PW-6) stated that on the day of occurrence, at about 8-9 PM, some fires were shot in the village. On hearing the shots they went to the fields to inform Gurdial Singh. Similarly Gurmail Singh alias Meli son of Bachan Singh also suffered injuries during occurrence but the Investigating Officer did not investigate into both the aforesaid incidents, therefore, apparently conduct of the Investigating Officer was biased and false implication of the accused cannot be ruled out Though the arguments are forceful yet it could not Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

move our minds because the firing in the village did not effect anyone and it was not aimed at anyone, therefore, in the absence of any complaint made by the complainant party or any villager the Investigating Officer may not have extended his hands for going into it.

Similarly since the FIR regarding the murder of Gurdial Singh and causing injrues to Kaka Singh, Dial Singh, Gurmail Kaur and Piaro has already been elicited, therefore, there was no necessity to separately investigate about the injuries were suffered by Gurmail Singh son of Bachan Singh.

We also do not agree with the contention that why the case was not registered on the statement made by Gurdial Singh (deceased) Ex.PW8/A before ASI Rup Singh because though Gurdial Singh injured had made statement Ex.PW8/A before ASI Rup Singh at 2.00 AM on 11.3.1989 and he after making an observation that the case relates to Police Station Bhikhi sent the statement to the concerned Police Station through HC Rai Singh No.879 for registration of the case but at the same time when the case had already been registered against the accused on the basis of the statement of Joginder Singh (PW-4) at 11.30 PM on 10.3.1989, therefore, no second FIR could be lodged.

Let us now advert to the argument of the learned counsel for the appellants regarding non explaining the injuries on the person of the accused. Joginder Singh complainant (PW-4) in his initial statement Ex.PO which is the basis of registration of the case clearly speaks that Gurmail Singh accused suffered injuries at the hands of his co-accused due to darkness. All the three witnesses namely Joginder Singh, Gurmail Kaur and Piaro re-iterated the same version and have tried to explain the injuries on the person of Gurmail Singh accused.

Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

We are not sitting over the fact whether the plea set up by the complainant witnesses regarding the injuries suffered by Gurmail Singh accused is true or not. But the question into controversy before us is that whether the accused explained the injuries or not. That controversy appears to have been set at rest by the witnesses. In any case, the question whether the prosecution is obliged to explain injuries sustained by the accused during the same occurrence and whether failure of the prosecution to explain would mean that the prosecution has suppressed the truth and also original genesis of the occurrence was dealt with by a three Judge Bench of Hon'ble Apex Court in Ram Sunder Yadav vs. State of Bihar, 1998 (4) RCR (Criminal) 54 in which Their Lordships while referring to the other judgments of the Hon'ble Supreme Court rendered in Jagdish vs. State of Rajashtan (1979) 2 Supreme Court Cases 178 and Hari Krishna Singh and others vs.

State of Bihar, (1988) 2 Supreme Court Cases 95 wherein divergent views were expressed, observed that in other two judgments of three Judge Bench rendered in Bhaba Nanda Sarma and others vs. State of Assam (1974) 4 Supreme Court Cases 396 and Vijayee Singh and others vs. State of U.P., (1990) 3 Supreme Court Cases 190, the questions are already answered holding that the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances. Their Lordships in R.S. Yadav's case (supra) observed in para 3 as under :-

"3. It has now been brought to our notice that earlier a three judge Bench of this Court had considered the above questions in Bhaba Nanda Sarma and others vs. State of Assam, (1974) 4 Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

SCC 396 and held that the prosecution is not obliged to explain the injuries on the person of accused in all cases and in all circumstances and, according to the learned Judge, it is not the law. The same question again came for consideration before another three Judge Bench of this Court in Vijayee Singh and others vs. State of U.P., (1990) 3 SCC 190 wherein it has been held as under :-

"In Mohar Rai case, 1968 (3) SCR 525 , it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the

evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh case, 1976 (4) SCC 394 also it is

observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non- explanation may assume great importance

where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

basis to reject such evidence, and consequently the whole case."

From the aforesaid settled legal position it can be said that non explanation of injuries can assume importance as per the facts of each case and where the defence gives a version which competes on probability with that of prosecution, it may affect the case of the prosecution. But where the evidence is clear, cogent and the court can distinguish the truth from the falsehood, the mere fact that the injuries are not explained by the prosecution cannot by itself be a basis to reject the whole of the case of the prosecution.

We have examined the present case within the parameters of the aforesaid judgment and keeping in view the totality of the facts and circumstances, the fact is established that the accused 8 in numbers caught the complainant party by surprise while they were entering their house and committed murder of Gurdial Singh and injured Gurmail Kaur, Piaro, Kaka Singh and Dial Singh. On the other side, out of eight accused only Gurmail Singh suffered five injuries that too on the non vital parts, therefore, even if complainant side has not come up with plausible explanation of the injuries on the person of the accused, that fact by itself cannot be construed as a vital flaw as to discard the prosecution version in its entirety.

Now, adverting to the appeal against the acquittal of the accused under Sections 148/149/302/307/326/323 IPC, learned Deputy Advocate General, Punjab has submitted that the judgment passed by the trial Court is based more on surmises and conjecture then analyzing the evidence on record. The trial Court has not properly Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

appreciated the evidence and also not properly dealt with the provisions of law since the trial Court judgment is bereft of acceptable reasoning, therefore, the same deserves to be reversed and all the accused are liable to be convicted for the offences charged against them.

To the contrary, learned counsel for the accused- appellants as well as respondents in appeal against the acquittal have countered the arguments advanced by learned Senior Deputy Advocate General, Punjab and urged that the FIR does not detail the respective role played by the accused persons. In any event, the evidence is not sufficient to bring in the application of Sections 148/149 IPC. There is no sound reasoning indicating to hold that there was any unlawful assembly which is a sine-qua-non for application of Section 149 IPC. The evidence as given by Joginder Singh (PW-4) is impeached by dying declaration Ex.PW8/A made by Gurdial Singh, therefore, all the accused were rightly acquitted and there were no sufficient grounds to hold them guilty for the offences for which they have been charged.

A bare perusal of the trial Court judgment reveals that the same is based more on surmises and conjectures than on the critical analysis of the evidence. Some of the conclusions, as rightly submitted by the learned Senior Deputy Advocate General, Punjab, are not based on the correct appreciation of evidence. The trial Court appears to have not looked into motive behind the commission of the crime and the attending circumstances which contribute to invite a conclusion that the accused formed an unlawful assembly and in furtherance of their common object they committed murder of Gurdial Singh and caused injuries to four others.

Before adverting to the relevant observations of the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

trial Court regarding the non-existence of element of unlawful assembly, first of all it will be essential to mention that in order to constitute an unlawful assembly, the assembly must be unlawful; there was use of force and violation by the members of such assembly; the accused was a member of such assembly and the accused in prosecution of common object of such assembly used force. In the instant case, it has been amply proved from the evidence on record that the accused 8 in numbers having serious motive in their minds to have vengeance against Gurdial Singh and his family members for involvement of their kith and kin Nachhattar Singh in the murder of Gurdial Singh's son (Mohinder Singh) armed with deadly weapons ambushed near the house of the complainant party and as soon as they were entering in their house, attacked them with their respective weapons, amply establish that the accused formed an unlawful assembly.

Now coming to the other offence constructive criminal liability as defined under Section 149 IPC, it may be observed that for the purpose of application of Section 149 IPC, the prosecution has to prove presence and participation in an unlawful assembly. In order to fasten the vicarious responsibility of member of unlawful assembly, the prosecution must prove that act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the member of that assembly knew to be likely to be committed in prosecution of common object of that assembly under this section, therefore, every member of unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such which every members of that assembly knew to be Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

likely to be committed. This creates a specific offence and makes every members of the unlawful assembly liable for the offence or the offences committed in the course of occurrence provided the same were committed in prosecution of the common object or was/were such as members of that assembly knew to be likely to be committed. Since this section imposed constructive penal liability, it must be strictly construed as it seeks to punish the members of an unlawful assembly for the offence or offences committed by their associates in prosecution of the common object of that assembly. In order to make out whether the accused committed an offence in furtherance of their common object and to accomplish the common object for which they are vicariously liable.

The Courts will have to examine the facts and circumstances of each case. However, in order to form an opinion, the Apex Court in case Chanakya Dhibar (Dead) vs. State of West Bengal 2004(1) RCR (Criminal) 581 observed as under :-

13. Section 149, IPC consists of two parts. The first part of the section means that the offence to be committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 141, if it can be held that the offence was such as the members knew was likely to be Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

committed and this is what is required in the second part of the section. The purpose for which the members of the assembly set out or desired to achieve is the object. If the object desired by all the members is the same, the knowledge that is the object which is being pursued is share by all the members and they are in general agreement as to how it is to be achieved and that is now the common object of the assembly. An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom.

Though no hard and fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carried and behaviour at or before or after the scene of incident. The word "knew" used in the second branch of the section implies something more than a possibility and it cannot be made to bear the sense of "might have been known". Positive knowledge is necessary.

When an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object. That, however, does not make the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

converse proposition true; there may be cases which would come within the second part but not within the first part. The distinction between the two parts of Section 149 cannot be ignored or obliterated. In every case it would be an issue to be determined, whether the offence committed falls within the first part or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution of the common object and falls within the second part. However, there may be cases which would be within first offences committed in prosecution of the common object, but would be generally, if not always, with the second, namely, offences which the parties knew to be likely committed in the prosecution of the common object." In the instant case, the accused had a strong motive as there was a civil litigation pending between Nachhattar Singh (kith and kin of the accused) and deceased over the big chunk of land.

Nachhattar Singh had allegedly murdered Mohinder Singh son of Gurdial Singh(deceased) in which Gurdial Singh was an eye witness.

Circumstances indicate a twin motive with the accused for commission of the crime that after removing the obstacle of Gurdial Singh they will be the gainers in the civil litigation as well as no body will be there to pursue the criminal case against Nachhattar Singh and also to testify as a prosecution witness. It was night time and the accused eight in numbers having come from outside gathered at the house of Nachhattar Singh armed with deadly weapons took the complainant party by surprise Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

caused injuries to five persons out of whom Gurdial Singh succumbed to his injuries. The seriousness of the injuries suffered by Gurdial Singh also indicates that the accused had mainly focused at him which also adds to their common object. Since the accused fired repeated shots with fire arms and also inflicted injuries with sharp edged and blunt weapons wielded by them to at least five persons, therefore, it will not be unsafe to hold that the accused while forming an unlawful assembly of which they were the members committed such offence which they knew to be likely to be committed in prosecution of their common object. In the similar circumstances of the case, the Apex Court in case Rachamreddi Chenna Reddy and others vs. State of Andhra Pradesh AIR 1999 Supreme Court 994 observed as under :- "All the accused persons were armed with sickle, battle axes, daggers and sticks and emerged from the western side of the mill and after A-1 hacked the deceased No.1 on the head and the other 8 accused persons surrounded him, cut him and stabbed him.

The number of injuries on the deceased as per the post-mortem report corroborates the oral testimony.

The manner in which the accused persons appeared at the scene of occurrence with lethal weapons in their hands and mercilessly assaulted the deceased after surrounding him clearly exhibits their common object was nothing but to kill the deceased." In the instant case also, the accused Jarnail Singh alias Bhola was armed with 12 bore gun owned by Gurjant Singh accused, Gurmail Singh alias Meli son of Bachan Singh also armed with Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

12 bore gun, accused Pargat Singh, Shingara Singh, Gurmail Singh son of Nahar Singh and Raju were armed with gandasas. Accused Jarnail Singh alias Bhola fired shot at deceased Gurdial Singh on his left thigh which also effected his penis. Jarnail Singh alias Bhola accused repeated another shot hitting Gurdial Singh on his right hand finger then Gurmail Singh and Pargat Singh inflicted gandasa blows from its sharp side to Gurdial Singh hitting him on his right and left hands. Accused Gurmail Singh alias Meli fired two shots from his gun at Kaka Singh hitting on his right shoulder at the front side and on the right upper arm from the back side. Accused Gurmail Singh alias Meli fired another shot hitting Piaro (PW-6) on her ankle. Accused Shingara Singh inflicted gandasa blow from its sharp side on the head of Dial Singh hitting above his forehead. Accused Raju and Shingara Singh then gave gandasa blows from its reverse side to Gurmail Kaur hitting her on her left wrist.

The medical evidence fits in with the ocular version as given by Joginder Singh (PW-4), Gurmail Kaur (PW-5) and Piaro (PW-6). Dr. V.K. Sobat (PW-1) observed four injuries on the person of deceased Gurdial Singh.

He opined that the injuries No.1 and 3 were caused by fire arm and injuries No.2 and 4 were caused with sharp edged weapon. He observed two injuries on the person of Kaka Singh which were stated to have been caused by fire arm. Injury on the person of Dial Singh was opined to be caused with sharp edged weapon. He further opined that three injuries on the person of Gurmail Kaur were the result of blunt weapon and injury on the person of Piaro was the result of fire arm.

Thus it is made vividly clear by Dr. V.K. Sobat (PW-1) that not only fire arms were used but the injuries on the persons of the injured were caused with blunt as well as sharp edged weapons also. As such the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

participation of the accused in the commission of the crime cannot be ruled out. Even Gurmail Singh also admitted having caused injuries to the injured though he has set up a different version in his statement under Section 313 of Cr.P.C yet he has failed to prove the same.

The trial Court for no good reasons observed that no offence under Sections 148/149 IPC is made out. It will be relevant to reproduce the relevant para of the observations in this connection which reads as under :-

"No evidence has been led by the prosecution to show that unlawful assembly was formed by the accused with common object of those composing such assembly. They can be convicted under S.149 IPC only if the prosecution by way of evidence proved that the persons forming unlawful assembly should be animated by common object. In the instant case no evidence has come forward to spell out that all the accused formed an unlawful assembly in prosecution of the common object of that assembly to inflict injuries to Gurdial Singh deceased etc. and in view of all this it is not possible to hold them (accused) guilty under Sections 148/149 IPC."

The trial Court while making the aforesaid observations has apparently over looked the evidence and the circumstances prevailing over the case as discussed in the preceding paras of the judgment, therefore, the judgment being apparently against facts established on the record is not sustainable. We also find force in the other contention that the trial Court did not properly appreciate the Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

evidence while taking the case of the accused within the purview of Clause 304(I) of the IPC.

Before we lay our hands on the legal aspect of the case, it would be essential to advert to the injuries caused to the deceased Gurdial Singh. As per Dr. V.K. Sobat (PW-1), Gurdial Singh suffered four injuries out of which injuries No.1 and 3 were the result of fire arm and injuries No.2 and 4 were caused by sharp edged weapon.

He made a hurried examination because Dr. H.S. Lumba (PW-2) who conducted the post mortem examination of the deceased on 12.3.1989, at 8.00 AM detected one more injuries i.e. on the penis. It has come in evidence that Jarnail Singh alias Bhola fired repeated shots at Gurdial Singh firstly hitting the thigh and secondly hitting the fingers of the right hand. As per oral evidence, Gurmail Singh alias Meli inflicted injury on the fingers of the right hand and Pargat Singh inflicted injury on the left hand of Gurdial Singh (deceased) with their gandasas. Dr. V.K. Sobat (PW-1) had detected injury No.2 on the right hand of Gurdial Singh and injury No.4 on the left hand of Gurdial Singh as having been caused with sharp edged weapon. The trial Court did not take note of the aforesaid injuries which have been caused by Gurmail Singh alias Meli and Pargat Singh and has also not explained in its judgment as to from where these injuries came to occur on the person of Gurdial Singh (deceased) if the same had not been caused by the aforesaid accused and while over looking these injuries acquitted Pargat Singh and Gurmail Singh alias Meli for the charges framed against them. All the accused did not stop causing injuries only to Gurdial Singh but also caused injuries to Kaka Singh, Dial Singh, Gurmail Kaur and Piaro.

The further circumstances, at the cost of repetition Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

reveal that the accused eight in number armed with deadly weapons had emerged from near the house of the deceased; they took the complainant party by surprise and attacked them with the deadly weapons like fire arms, gandasas, committed murder of one person and caused injuries to four others for the twin motive that they wanted to vanish the evidence in murder case and also to become gainers in the civil litigation.

Under Clause 3rdly of Section 300 of the Code, culpable homicide is murder if both the following conditions are satisfied :-

"1. that the act which causes death is done with the intention of causing a bodily injury; and

2. that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

Thus, it implies that sine quo holding the accused guilty of the offence under Section 302 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death viz that injury found to be present was the injury that was intended to be inflicted.

There is no justification that the assertion that giving of only one fire arm injury that too on non vital part of the body resulting in the death must always necessarily reduces the offence 'culpable homicide not amounting to murder' punishable under Section 304(I) IPC.

If the accused deliberately strikes another fire arm injury on the thigh so as to effect most sensitive part of the body i.e. penis and the other accused also strike with their respective weapons on different parts of Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

the body, then they must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death.

The whole thing depends on the intention to cause death and the case may be covered by either clause firstly or thirdly. The nature of intention must be covered from the kind of weapon used, part of the body hit, amount of the force implied, the motive which they were having and the circumstances attendant upon the death. To the contrary to attract the application of Clause fourthly to Section 300, the following circumstances must be clearly established :- "1. The act must be committed without pre- meditation in the sudden fight in the heat of passions;

2. upon sudden quarrel;

3. without the offender having taken the undue advantage; and

4. the accused had not acted in a cruel and unusual manner.

But in the instant case, none of the ingredients to constitute an offence under Section 304(I) is made out but it can well be spelt out from the circumstances that the accused committed the crime as to fall under Section 302 IPC. There was a serious motive i.e. land dispute as well as murder of Mohinder Singh son of Gurdial Singh (deceased) for which Nachhattar Singh was facing trial. Nachhattar Singh was kith and kin of the accused No.2. The accused were not the residents of village Heeron Kalan where the occurrence took place but they were the residents of village Shahpur Kalan. They while coming Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

from village Shahpur Kalan to village Heeron Kalan formed an unlawful assembly. They while armed with deadly weapons had collected in the dead of night nearby the house of the deceased, waited for them when they were returning from their fields after attending the turn of water.

There was no element of sudden provocation and sudden fight from the side of the complainant party. It is not the case where a single shot was fired but repeated shots were fired. Accused Pargat Singh and Gurmail Singh also caused injuries to the deceased and four other persons with their respective weapons. Since the deceased was witness in the murder case against Nachhattar Singh, therefore, the accused had twin motive, first for vanishing the evidence in the murder case against Nachhattar Singh and other for becoming winners in the civil litigation.

The mere fact that the doctor did not specifically mention if the injury was sufficient to cause death takes out the case from the purview of culpable homicide amounting to murder. It is not in each and every case where the specific opinion of the doctor is required but the Court can well visualize from the other attending circumstances if the injuries were sufficient to cause death or not. The occurrence took place at about 10.00 PM in the night, initially the case was registered under Section 307 IPC, therefore, it could not be expected from Dr. V.K.

Sobat (PW-1) to make an opinion regarding sufficiency of the injuries to cause death. However, he observed the injury No.1 on the person of Gurdial Singh as "dangerous". In any case, Gurdial Singh died within four hours of the occurrence and then the offence was converted into under Section 302 IPC. Dr. H.S.Lumba (PW-2) described the effect of the fire arm injuries in the following manner that :- "1. There were 116 lacerated wounds varying from Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

0.5 to 0.5 cms and 0.75 cms to 0.75 cms in size on the front of left thigh in the middle part in an area of 25 cms x 27 cms. The thigh was swollen. On dissection clotted blood was present and the muscle and vessels were found lacerated 15 pallets were found & packed."

The report Ex.PN shows that the fire arm injury had effected up to penis. He further opined that the cause of death was due to multiple injuries as such we do not hesitate to hold that the injuries on the person of Gurdial Singh (deceased) were sufficient to cause death in the ordinary course of nature. Consequently, it will be difficult to hold that the case of the accused does not fall within the purview of Clause thirdly of Section 300 of the Indian Penal Code.

Accordingly, we are excited to hold that the accused Jarnail Singh alias Bhola, Gurmail Singh alias Meli and Pargat Singh are guilty of offence under Section 302 IPC whereas accused Gurmail Singh son of Nahar Singh and Gurjant Singh alias Janta are guilty of offence under Section 302 read with Section 149 IPC. As all the accused formed an unlawful assembly with an intention to commit rioting, therefore, they are also held guilty under Section 148 IPC.

It has also come in evidence that Gurmail Singh alias Meli son of Bachan Singh fired shot hitting Piaro on the ankle of her left leg, he also fired two shots inflicting injuries to Kaka Singh. The injuries on the person of Kaka Singh and Piaro were found to be simple in nature, therefore, they are guilty of offence under Section 324 IPC.

However, all the other accused are guilty of the offence under Section 324/34 IPC for causing simple injuries to Kaka Singh and Piaro.

Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

Similarly, accused Shingara Singh and Raju caused injuries with their respective gandasas from its reverse side hitting on the back side of the left hand of Gurmail Kaur which injury was found to be grievous in nature, therefore, though accused Raju and Shingara Singh are not before us for being penalised yet the remaining accused namely Jarnail Singh alias Bhola, Gurmail Singh alias Meli son of Bachan Singh, Gurmail Singh son of Nahar Singh and Gurjant Singh alias Janta are also held guilty under Sections 326/149 IPC for causing grievous injuries to Gurmail Kaur.

It is also clearly established from the record that the accused Jarnail Singh used the licenced gun of Gurjant Singh for which Jarnail Singh had no licence. It has also come in evidence that Gurjant Singh handed over his licenced gun to Jarnail Singh and he violated the terms and conditions of the arms licence. The recovery of the gun from Jarnail Singh is duly proved, therefore, no interference is warranted in the order of conviction passed by trial Court qua Jarnail Singh alias Bhola under Section 25 of Arms Act and Gurjant Singh alias Janta under Section 30 of Arms Act. Thus, sentence awarded by the trial Court is maintained.

In view of the aforesaid discussions, we are of the consistent view that the view taken by the trial Court in the impugned judgment was on mis-appreciation of evidence and was practically unreasonable warranting interference by this Court. Consequently, while dismissing the Appeal No.232-SB of 1995 preferred by Jarnail Singh and others, accept the Appeal No.445-DBA of 1995 preferred by State of Punjab and convict the accused.

Crl. Appeal No.445-DBA of 1995,

Crl. Appeal No.232-SB of 1995

Now coming to quantum of sentence, undoubtedly, the accused are to be provided an opportunity of being heard before passing the appropriate sentence but here in this case, since we are awarding minimum sentence under Section 302 IPC, therefore, no such opportunity requires to be given to them. Accordingly, we sentence the accused Jarnail Singh alias Bhola, Gurmail Singh son of Nahar Singh and Pargat Singh to imprisonment for life and a fine of Rs.2000/- (as already imposed upon Jarnail Singh under Section 304-I IPC) under Section 302 IPC. The remaining accused namely Gurmail Singh son of Bachan Singh and Gurjant Singh are sentenced to imprisonment for life and a fine of Rs.2000/- under Section 302 read with Section 149 IPC.

As regards the sentence qua other offences, no separate sentence of imprisonment is required to be passed being the lessor offences.

We also dispose of the Revision Petition No.514 of 1995 preferred by Piaro.

( A.N. JINDAL )

JUDGE

October 10, 2006 ( VIRENDER SINGH)

'deepak' JUDGE


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

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.