Full Judgment Text
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PETITIONER:
SWARAN SINGH
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT: 26/04/2000
BENCH:
Ruma Pal, D.P. Wadhwa
JUDGMENT:
RUMA PAL, J.
These appeals have been preferred from the decision of
the Punjab & Haryana High Court holding the appellants
guilty under Section 302 and Section 302/34 of the Indian
Penal Code (IPC) in connection with the death of Shamsher
Singh and Amar Singh. The Additional Sessions Judge,
Ludhiana as well as the High Court accepted the case of the
prosecution and found the guilt of the appellants was
established beyond reasonable doubt. The case of the
prosecution was that on 24th April, 1986 at about 7.30 p.m.,
Karnail Singh (PW3) was driving a Car with Gurmel Singh
(PW4) sitting next to him and Shamsher Singh and Amar Singh
seated in the rear. All of them had been to village
Bharthala to inquire about purbias (labourers) from
Dilbagh Singh. They did not find Dilbagh Singh nor any
purbia and were on their way back to Samrala when a truck
started continuously blowing its horn behind the car.
Shamsher Singh asked PW 3 to stop the car which PW 3 did.
Shamsher Singh got down from the car and started looking at
the truck to identify who the driver was. Jagjit Singh who
was driving the truck, brought the truck along side the car.
Jagjit Singhs son Mittar Pal ( also known as Lovely) and
Swaran Singh were seated next to Jagjit Singh in the front
cabin of the truck. Swaran Singh opened the left window of
the truck and shot Shamsher Singh in the chest with his 12
Bore Double Barrel Gun . Shamsher Singh died on the spot.
On hearing the shot, Amar Singh got down from the car and
went to the back of the truck. Then Jagjit Singh, his son
Lovely as well as one Amrik Singh got out of the truck.
Jagjit Singh fired at Amar Singh hitting Amar Singh in the
chest. Amrik Singh told Jagjit Singh to fire more shots at
Amar Singh. Whereupon Lovely took the 12 Bore Double Barrel
Gun from Jagjit Singh and fired two more shots at Amar
Singh, one of which hit Amar Singh in the neck and the other
in the stomach. The assailants fired more shots at Amar
Singh. Amar Singh died on the spot. While the assailants
were firing shots, Satish Kumar, who got down from back of
the truck also received a shot. PW 3 and PW 4 both raised
an alarm whereupon the assailants fled away firing shots in
the air as they ran. The motive for the crime alleged by
the prosecution was that Swaran Singhs truck had been
de-listed from the Truck Union of Samrala by Shamsher Singh
who was the President of the Truck Union, Samrala. It was
also alleged that there was rivalry between Jagjit Singh and
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Shamsher Singh because of the forthcoming elections to the
Presidents Office of the truck union which was to be held
about a week later. On 24th April 1986 at 9.30 p.m.
Karnail Singh (PW 3) lodged a First Information Report at
the Police Station, Samrala. SI Karnail Singh, S.H.O. P.S.
Samrala (PW 5) went to the site and took possession of the
truck, the car, the registration papers, the blood stained
earth from near the dead bodies of the deceased, two empty
cartridges from the cabin of the truck and four empty
cartridges from near the dead body of Amar Singh. According
to the PW 5 he found Satish Kumar who had been wounded at
the spot and sent him to the Civil Hospital, Samrala. He
then prepared an inquest report and sent the dead bodies for
post mortem to the Civil Hospital, Samrala. As far as
Shamsher Singh was concerned the post mortem was performed
at 10.30 A.M. on 25th April, 1986. The post mortem of Amar
Singh was done the same day at 12.40 P.M. Both post mortems
had been performed by Dr.Rajiv Bhalla, Medical Officer,
Civil Hospital Samrala (PW 1). According to the post mortem
report Shamsher Singh had the following injuries:- There
was a wound 2 cms in diameter on the right side of the chest
with corresponding injury on the shirt and banian. The
margins were blackened and rolled inwards with clots
present. The wound was present in the 2nd and 3rd
intercostal space in the mid clavicular line. The remnant
of cartridge and pellets were removed from the wound and
sealed.
In the opinion of PW 1 the cause of death was fire arm
injury leading to the rupture of the right lung and left
lung leading to haemorrhage, shock and death. It was also
stated that the death was instantaneous and injuries were
ante mortem in nature and were sufficient to cause death in
the normal course. The following six wounds were found on
Amar Singh by PW 1:- 1. Wound 3.5 cms diameter on the left
side of chest with blackened margins with rolled in ends.
The shirt was blackened with corresponding injury on the
shirt. The left strip of banian was missing. The wound was
10 cm deep and in the area of Ist and second intercostal
space. The remnant of cartridge was seen in the wound and
it was removed and sealed.
2. Wound 3 cm diameter in the middle of the chest in
the anterior triangle of the neck. The wound was 7 cm in
depth with remnant of cartridge and pellets removed and
sealed.
3. Wound 3 cm diameter on the abdomen in the right
upper guadrant with intestine protruding out of it 8 cm deep
with margin rolled in and surroundings blackened. The
intestines were ruptured and there was corresponding cut on
the shirt and banian with margins blackened. The pellets
were removed from injury and sealed.
4. A penetrating wound 2.5 cms diameter on the
posterior aspect of the left leg in the popli togal fossa 2
cm above the knee joint line with rolled in margins and
blackened ends. The wound was bone deep with remnants of
cartridges and pellets embodied in the femur. There was
fracture of the lower and of femur. The pellets were
removed and sealed. There was corresponding cut in the
pajama with margins blackened.
5. A penetrating wound 2.5 cm diameter in the left
leg 3 cm below the knee joint with rolled in margins and
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blackened ends with corresponding cut on the pajama. The
injury was bone deep and there was fracture of the upper end
of tibia.
6. Penetrating wound 2 cm diameter on the left leg
rolled in margins and blackened end 3 cm below injury No. 5
pellet removed and sealed.
In the opinion of PW 1 the cause of death was due to
the injuries which were ante mortem in nature and sufficient
to cause death in the ordinary course. The various items
collected by PW 5 from the site as well as parts of the
viscera of the deceased which had been removed during the
post mortem were sent to the Forensic Science Laboratory
(FSL) by the police for chemical analysis. On 26th April,
1986 Swaran Singh surrendered and handed over a 12 Bore
Double Barrel Gun (Ex. P-22) before the Judicial
Magistrate, Samrala (PW 6), who gave it on the same day to
PW 5. Three months later on 26th July, 1986 Gajja Singh
father of Jagjit Singh produced a 12 Bore Double Barrel Gun
(Ex. P 23) which was the licenced gun of Jagjit Singh
before PW 5. After six weeks after that, the Sarpanch
produced another 12 Bore Double Barrel Gun which was the
licensed gun of Shamsher Singh (Ex. P 24). Three other 12
Bore Double Barrelled Guns were produced by other witnesses
on 27th October, 1986 (Ex. P25, Ex. P26 and Ex. P27).
Surprisingly, although Jagjit Singh was named in the FIR he
was not arrested but the case was taken up for investigation
by Shri Mohinder Singh, DSP, Shri Baldev Sharma, DSP, Shri
Sanjeev Gupta, SP and Shri B.P.Tiwari, DIG, Crime,
Chandigarh all of whom found that Jagjit Singh was
innocent. The police accordingly only challaned Swaran
Singh. Being aggrieved, PW 3 filed a complaint on Ist
December, 1986 against Jagjit Singh, Mittar Pal Singh (
alias Lovely) and Amrik Singh. All the four accused were
committed to trial on 22nd September, 1988. The objection
of the accused that the complaint case and the challan case
could not be clubbed was rejected by the Trial Court on 8th
February, 1989 and the trial commenced on 18th February,
1989. The Additional Sessions Judge, Ludhiana charged
Swaran Singh and Jagjit Singh under Section 302/34 IPC and
Amrik Singh and Mittar Pal Singh under Section 302/34 IPC.
All four accused were also charged under Section 307/34 IPC.
Apart from tendering the formal evidence of Constable Dev
Bharath, AMHC Jai Singh, Constables Hazura Singh and Jagtar
Singh on affidavits (as these witnesses were not required by
the defence for cross- examination), the prosecution
examined seven witnesses in support of the charges, namely,
Dr. Rajiv Bhalla (PW 1), Ashok Kumar, Draftsman (PW 2),
Karnail Singh (PW 3), Gurmel Singh (PW 4), Karnail Singh,
SHO PS Samrala (PW 5), K.S. Bhullar, Judicial Magistrate,
Samrala (PW 6) and Randhir Singh (PW 7). Swaran Singh in
his defence stated that he was a member of the Truck Union
and was actively helping Jagjit Singh, the co-accused who
was a rival candidate of Shamsher Singh, the deceased in the
election to the Presidentship of the Truck Union which was
to take place on 3.5.86. According to Swaran Singh, both
the deceased with the intention of scaring away the helpers
of Jagjit Singh came armed to the front of the house of
Swaran Singh on 24.4.86. When Swaran Singh reached his
house in his truck at 4.00 p.m. along with his cleaner,
Satish, he found the deceased in a drunken state, shouting
and using abusive language. The deceased allegedly were
also firing indiscriminately Swaran Singh claimed that he
ran away leaving his licenced loaded gun, the cartridges
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along with the belt and his cleaner behind in the truck. He
further stated that the cleaner, Satish received gun shots
at the hands of the deceased. He claimed that the eye
witnesses were procured. Jagjit Singhs defence was that he
had been falsely implicated because of his rivalry with
Jagjit Singh in relation to the truck union. Amrik Singh
and Mittar Pal Singhs defence was that they were not
present at the spot at all. They examined three witnesses,
namely, the Ahlmad, the Clerk (Complaints) and the Clerk
(Records) of the Deputy Commissioners office of Ludhiana to
prove that they had moved an application before the
concerned authorities for having been falsely implicated in
the case. The Trial Court acquitted Amrik Singh and Mittar
Pal Singh on the ground that the prosecution had not been
able to establish their guilt. The Trial Court, however,
convicted Swaran Singh under Section 302 IPC for the murder
of Shamsher Singh and under Section 302/34 IPC for the
murder of Amar Singh. Jagjit Singh was convicted under
Section 302 IPC for the murder of Amar Singh and under
Section 302/34 IPC for the murder of Shamsher Singh. Both
the accused were sentenced to life imprisonment and to pay a
fine of Rs.5,000/- or in default to further undergo rigorous
imprisonment for one year in respect of each of the
offences. The amount of fine, if recovered, was directed to
be paid to the next kin of Shamsher Singh and Amar Singh as
compensation. The sentences were directed to run
concurrently. Three appeals were preferred before the High
Court of Punjab and Haryana. The first appeal was filed by
Swaran Singh against his conviction, (Criminal Appeal No.
315/DB of 1991), the second appeal was preferred by Jagjit
Singh against his conviction, (Criminal Appeal No. 204/DB
of 1991), and the third appeal was preferred by the State of
Punjab ( Criminal Appeal No. 270/DB of 1992) against the
acquittal of Mittar Pal Singh. The High Court disposed of
all the appeals by a common judgment dated 18th September
1992. The High Court dismissed the States appeal against
the acquittal of Mittar Pal Singh but affirmed the findings
of the Trial Court in respect of Jagjit Singh and Swaran
Singh. However, the sentences were altered by setting aside
the sentences of fine imposed. Being aggrieved by the
decision of the High Court, Swaran Singh and Jagjit Singh
have preferred appeals before this Court. It is contended
before us by both the appellants that both the Courts had
erred in relying on the eye witnesses, namely, PW 3 and PW 4
as their account of the incident in so far as it related to
Mittar Pal Singh had been disbelieved by both the courts.
It is further submitted that the evidence of the eye
witnesses that the deceased had not drunk alchohol was
belied by the Report of the FSL. It is also pointed out
that Dilbagh Singh from whom inquiries regarding purbias
were allegedly sought to be made by the deceased had not
been examined as a witness. It is further contended that
the investigating officers evidence was inconsistent with
the evidence on record. The appellants claim that the
incident in fact had taken place in front of Swaran Singhs
house at 4.00 p.m. and that this was supported by the
evidence of PW 1, both as regards the deceased as well as
Satish, cleaner of the truck. It is further claimed that
there was as such a delay in lodging of the complaint by
5-1/2 hours during which time the alleged eye witnesses had
concocted the story of involvement of the accused. It is
claimed that they had no motive, nor was there any evidence
led by the prosecution as to their motive for killing Amar
Singh. Finally, as far as Jagjit Singh is concerned, it is
stated that apart from the eye witnesses account there was
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nothing to connect Jagjit Singh with the crime. It is
pointed out that the ballistic experts report clearly
showed that the cartridges recovered from the spot could not
be linked to the licensed gun of Jagjit Singh. In our view,
both the appellants were rightly found guilty by both the
Courts. The evidence against them is conclusive. That
there was enmity between the accused and Shamsher Singh was
admitted. Amar Singh was the deceaseds associate and had
the misfortune not only to have been present when Shamsher
Singh was killed but also to have made himself visible to
the accused then. Both the eye witnesses accounts of the
deceaseds involvement are not only consistent but were
corroborated by the material evidence. The site plan proved
by PW 2 showed that the truck was parked towards the right
rear end of the car in which the deceased was travelling.
If the deceased were firing indiscriminately, it is hardly
likely that the appellants would park the truck next to the
car. The photographs which were tendered as Exts P9 and P10
show the position of Shamsher Singhs body next to the truck
on the road on the left of the truck and Amar Singhs body
at the rear of the truck. The blood stained earth which was
collected from the spot where the deceaseds bodies were
found supports the position that the deceased were killed at
the spot next to the truck and not near Swaran Singhs house
as claimed by the accused. Both the Trial Court as well as
the High Court rightly rejected the story of Swaran Singh to
explain the presence at the truck at the scene of the crime.
That Swaran Singh was present at the scene and was carrying
a loaded double barrel gun and a cartridge belt has been
admitted by him. His defence was that he had not fired any
shots and that the deceased in a drunken state were the
aggressors. The appellants allegation that the deceased
were drunk does not appear to be borne out by the medical
evidence. According to the Chemical Examiners report (Ext.
PV/ 3) the alcohol concentration found in the viscera of the
deceased (Ext. Nos. 1,2, and 4) was 74.75 mg/100 mls.
This does not show either that the alcohol had been consumed
immediately prior to the occurrence as was suggested to the
eye witnesses nor can it be said that the alcohol content
was sufficient to make the deceased inebriated. It was also
correctly noted by both the Courts below that if indeed the
deceased had been shooting indiscriminately as alleged by
him, there would have been some pellets on the walls of
Swaran Singhs house. The High Court also noticed that it
was not even suggested to any of the witnesses in the
prosecution that there were pellets or pellet marks near
Swaran Singhs house. The evidence of PW1 and the
post-mortem reports was to the effect that the single wound
on the right side of the chest of Shamsher Singh and several
wounds on Amar Singh were blackened. Blackening is caused
by smoke deposit. Smoke particles are light. They do not
travel far. Therefore, smoke deposit, i.e., blackening is
limited to a small range. See Forensic Science in Criminal
Invesigation & Trials (3rd Edn.) P. 280; Fisher, Svensson,
and Wendels Techniques of Crime Scene Investigation (4th
Edn. p.296). The fact that the firing was at close range
supports the evidence of the eye witnesses and runs contrary
to the defence account of the incident. The situs of the
wounds found by PW 1 on the deceased also bear out the eye
witnesses testimony of the incident. As far as Swaran
Singh is concerned, the gun which was handed over by him
bearing No. 8395/5391/A-7 (Ext.22) to PW 6 was tested by
the Forensic Science Laboratory at Chandigarh. The report (
Ext. P-7) showed that three of the cartridges collected
from inside the truck and the site had been fired from the
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right barrel of Ext.22 and another cartridge had been fired
from the left barrel of the same gun. Both the eye
witnesses said Jagjit was driving the truck. He alighted
from the drivers side of the truck viz. the right of the
truck. Amar Singhs body was found shot at close range near
the right rear end of the truck. The wounds found on Amar
Singhs body by PW 1 thus sustain the eye witnesses
version. No doubt, the particular empty cartridge cases
found could not be related to Jagjit Singhs licensed gun
which had been handed over to the police by his father,
three months after the incident, but there was evidence that
the gun had been fired. The appellants contention that
because the eye witnesses account of the involvement of
Mittar Pal was not accepted by either of the Courts,
therefore their evidence was suspect, is a non-sequitur.
Merely because one portion of the evidence of PW 3 and PW 4
is disbelieved does not mean that the Courts were bound to
reject all of it. Besides Mittar Pals acquittal by the
Trial Court is unsupported by any reason. The High Court,
in its turn, held that it was unlikely that the eye
witnesses would have remained on the spot after Jagjit Singh
had shot Amar Singh killing him instantaneously. The High
Court also said that their version that Mittar Pal Singh
alias Lovely accused had snatched the gun of his father and
fired two gun shots is not believable being highly
un-natural because if Jagjit Singh accused was bold enough
to fire first gun shot hitting the neck of Amar Singh
deceased, then there was no question of his not repeating
gun shots, especially when the medical evidence shows that
the injuries on the dead body of Amar Singh were caused with
gun shot from close range. Thus, it cannot be said that the
medical evidence corroborates the participation of Mittar
Pal Singh alias Lovely accused in this occurrence. It is
not necessary for us to question this reasoning as no appeal
has been preferred against Mittar Pals acquittal but in the
case of the accused the medical evidence corroborates their
participation. Regarding the time of the occurrence, it may
be that PW 1 has stated in cross-examination that both the
deceased could have met their death at about 4.00 P.M. on
24.4.86, but this does not by itself establish the fact that
the deceased were killed at 4.00 P.M. The evidence of PW 1
in-chief was that the deaths could have been caused within
24 hours prior to the post-mortems. Therefore, PW1s
evidence is equally consistent with the case of the
prosecution that the incident took place at 7.45 P.M. PW
1s evidence regarding Satish Kumar in fact supports the
prosecutions case. Satish Kumar was examined on 24.4.1986
at 11.20 P.M. In cross-examination he said that the injury
had been caused within six hours. This statement means
that the injury did not take place at 4.00 P.M. Besides, if
Satish Kumar had been injured at 4.00 P.M., as claimed by
the accused, there is no explanation why he should have been
admitted to the hospital at 9.20 P.M. more than five hours
later and that too by the police. The chronology of the
series of occurrences shows that the crime had taken place
at about 7.30 p.m. as claimed by the prosecution and
testified to by the eye witnesses. That being so, the
lodgment of the F.I.R by PW 3 promptly with a detailed
account of the incident, renders improbable the possibility
of the fabrication of the involvement of the appellants.
Given these unambiguous confirmatory circumstances, we see
no reason to interfere with the reliance placed by both the
Courts on PWs 3 and 4s direct evidence of the part placed
by the appellants in the perpetration of the crime. On the
other hand, the appellants version of the incident has not
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been substantiated at all. The fact that the deceased had
gone to make inquiries about the employment of purbias from
Dilbagh Singh is peripheral to the case and the credibility
of the eye witnesses account of the incident can in no way
be affected by Dilbagh Singh not being produced in support
of the prosecution case. In any event, as recorded by the
Trial Court, Dilbagh Singh PW had been given up as he was
won over by the accused. For similar reasons, the P.P. for
the State could not produced Dilbagh Singhs mother. The
appellants also contended that the evidence of PW 5 was
discrepant. The appellants have emphasised that PW 5 had
incorrectly stated that he had not gone out of the police
station prior to recording of the FIR. He had also
incorrectly stated that he had found Satish at the scene of
the crime at 11.45 p.m. and sent him to the hospital
whereas Satish had in fact already been taken to the
hospital by some other police personnel at 9.20 p.m. None
of the discrepancies are sufficient to discard the case of
the prosecution or to throw doubt on the eye witnesses
testimony. Furthermore the trial commenced about three
years after the incident. In the meanwhile PW 5 had been
transferred in April 1987 from Samrala. PW 5 was called to
give evidence in 1990. In the circumstances it is not
unlikely that he would not remember the details of the
investigation. These are the adverse effects of a delayed
trial. This aspect has been dealt with at length by my
Learned Brother and I am in respectful agreement with his
opinions on the matter. Having found no lacunae in the
reasoning of the High Court either on facts or law, we
dismiss the appeals. If the accused are on bail, they shall
be taken into custody forthwith to serve out the sentences
imposed on them.