Full Judgment Text
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CASE NO.:
Appeal (crl.) 767-769 of 2001
PETITIONER:
RACHHPAL SINGH & ANR.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT: 23/07/2002
BENCH:
ND SManDthoasrhmaHdehgidkea,ri.
JUDGMENT:
SANTOSH HEGDE, J.
The above criminal appeals are preferred by the
appellants against the common judgment delivered by the High
Court of Punjab & Haryana at Chandigarh in Murder Reference
No.2/99, Crl.A. 130-DB to 132-DB/99 and Criminal Revision
No.443/99.
The brief facts necessary for disposal of these cases are
as follows :
There was a civil dispute pending between the deceased
Virsa Singh and his family on the one hand and Kuljinder Singh
on the other in regard to a small plot of land which was abutting
the residence of the said parties in the village of Srawan Bodla
at Police Station Sadar Malout. In the said dispute, appellant
No.2 and his family were supporting Kuljinder Singh. On
11.10.1996 the civil case pertaining to the said dispute was
listed before the concerned court and in the said proceedings the
deceased Virsa Singh had obtained an interim order against the
said Kuljinder Singh. On the date of the incident at about 3.30
p.m. there was a verbal fight which also led to the parties
grappling with each other but that did not culminate in any
serious incident due to the timely intervention of some ladies in
the families. It is the prosecution case that thereafter at about 8
p.m. the appellants herein along with 3 other accused persons
came in a white Maruti car driven by the second appellant and
the said accused persons got down from the car, raising a
’Lalkara’ (challenge) that they would teach the complainant
party a lesson for obtaining stay in regard to the land in
question. Thereafter, it is stated that the first appellant herein
who was armed with a .12 bore double barrel gun and the
second appellant who was armed with a rifle along with 3 other
accused persons who were armed with ’dangs’ attacked the
deceased Virsa Singh and his younger son Kulwant Singh on
the roof of their house. It is stated that during the said attack the
first appellant Rachhpal Singh and the second appellant
Gurmit Singh fired shots from their respective weapons at Virsa
Singh and Kulwant Singh, consequent upon which each one of
them received two bullet injuries and died on the spot. This
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incident in question was witnessed by Ravinder Singh, PW-3,
who is the son of the deceased Virsa Singh and the brother of
deceased Kulwant Singh and Darbara Singh, PW-4, who is the
mother’s sister’s husband of PW-3 who resides about a
kilometer and a half away from the house of the complainant
and was visiting the complainant and his family for returning a
trolley which he had borrowed from them. It is the further case
of the prosecution that thereafter PW-3 went to the Police
Station at Malout which is about 9 kms. from the place of the
incident and lodged a complaint at about 11 p.m. with SHO
Ranjit Singh which complaint was registered and forwarded to
the jurisdictional Magistrate who received the same by 2.45
a.m. on 12.10.1996. Immediately after registering the crime
under Sections 302, 148, 149 IPC and Sections 25 and 27 of the
Arms Act against the named accused, the said SHO took up the
investigation of the case and proceeded to the place of the
incident along with PW-10, Assistant Sub-Inspector, Bohar
Singh and others. During the course of the said investigation,
the said Officer recorded the statements of the witnesses and at
the time of the spot inspection he also collected the blood-
stained earth which was found underneath the dead bodies of
Virsa Singh and Kulwant Singh in the presence of local
Panchas. The Investigating Officer also found two empty .12
bore cartridge casings which were sealed as also 3 empties of
44.40 of the bore rifles found near the dead bodies which were
also sealed separately. During the course of investigation, the
Investigating Officer arrested the said accused persons (except
appellant No.1) on 25.10.1996 while they were travelling in a
white Maruti car bearing No. CHK 8320 driven by the second
appellant near the village of Punnu Khera. During the said
arrest they found Gurmit Singh, appellant No.2, in possession
of a rifle of 44.40 bore on his shoulder and 4 live cartridges
which were seized from his possession by the Investigating
Officer. He also took the car in question into his possession
under Ex. P-Z. It is stated that on statement made by the
concerned accused the Investigating Officer also recovered
certain ’dangs’ from the places disclosed by them. It is the
further case of the prosecution that on 27.10.1996, the first
appellant Rachhpal Singh was traced near the Railway Station
of village Kabarwala and at the time of his arrest he was in
possession of .12 bore double barrel gun and one belt
containing 9 live cartridges which was also seized by the
investigating agency.
The post mortem report and the evidence of Dr. R.
S.Randhawa, PW-2, shows that both the deceased persons had
lacerated wounds on vital parts of their bodies which had
lacerated the lung and the Doctor had opined that the injuries in
question were anti-mortem and had been caused by the use of
fire-arms.
Learned Sessions Judge considering the material placed
before him found the appellants herein and the 3 other accused
persons guilty of the offence charged against them and
convicted and sentenced appellant Nos. 1 and 2 herein to death
for offence under Section 302 IPC while other accused were
sentenced to life imprisonment. He also sentenced them to
varying terms of imprisonment with fine in regard to other
offences and referred the case of appellant Nos. 1 and 2 for
confirmation to the High Court.
It is against this conviction and sentence, Murder
Reference No.2/99 was lodged before the High Court while
Criminal Appeal Nos.130-DB to 132-DB/99 were preferred by
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the convicted accused persons challenging their convictions and
sentences. The complainant separately preferred a Criminal
Revision No.443/99 praying for compensation under Section
357 Cr.P.C. among other reliefs. The High Court as per the
impugned judgment, concurred with the finding of the learned
Sessions Judge as to the conviction imposed on the appellants
herein but came to the conclusion that the imposition of capital
punishment was uncalled for since it felt that the case in hand
was not one of those rarest of the rare cases and accordingly
reduced the sentence to one of life imprisonment in regard to
these appellants. The High Court on an analysis of the
evidence, disagreed with the finding of the Sessions Court as to
the guilt of the 3 other accused persons and acquitted them of
the charge under Section 302 read with 148 IPC. It, however,
maintained the conviction under Section 449 but reduced the
period of sentence to the period already undergone. While
considering the claim of the complainant in Criminal Revision
No.443/99 for compensation, the High Court felt that this was a
fit case for the exercise of its jurisdiction under Section 357
Cr.P.C. and directed each of the appellants to pay a sum of Rs.2
lacs, totalling Rs.4 lacs as compensation and in default it
imposed a default sentence of 5 years’ RI on each of the
appellants and directed that the said sentence should run
consecutively with the sentence of life imprisonment.
Mr. K B Sinha, learned senior counsel appearing for the
appellants, very strenuously contended that the courts below
erred in placing reliance on the evidence of the alleged eye-
witnesses PWs.3 and 4. He contended that it is clear from the
evidence of these 2 witnesses that they could not have seen the
incident in question from the place where they were allegedly
standing and their very presence at the place of the incident was
highly improbable because if at all PW-3 was present at the
place of the incident, he being the son of Virsa Singh and
brother of Kulwant Singh would have intervened in the fight.
There being no such attempt on the part of PW-3, it is
reasonable to presume that he was not present at the time of the
incident. In regard to PW-4, he submitted that though he is
related to the deceased, he was staying far away from the house
of the deceased and his stated reason for being present at the
place of the incident having not been established and he having
small children with a disabled brother, it was highly improbable
that he would have been visiting the deceased at that late hour
in the day. In support of this contention, Mr. Sinha pointed out
that it was the case of PW-4 that he had come to return a trolley
which he had borrowed from the deceased and nowhere in the
evidence it is seen that the prosecution has been able to
establish that any such trolley was in fact there at the residence
of the deceased. He also submitted that the recovery of the
bullet casing was not recorded in the recovery Mahazar,
therefore, that part of the evidence which connects the
discharge bullet from the weapons recovered from the accused
cannot be believed.
While Mr. Bimal R. Jad, learned counsel representing the
State of Punjab submitted that the trial court as well as the
Sessions Court have very carefully considered the evidence
adduced by the prosecution and have cited reasons for
accepting the same, therefore, there is no ground for
interference with such findings of the courts below.
A perusal of the evidence of the doctor shows that there
is some discrepancy in his evidence in regard to the nature of
the injury on the deceased as to whether the edges of the wound
were averted or inverted. But this, in our opinion, is not fatal to
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the case of the prosecution. The doctor while admitting that
there was some such confusion in his evidence as well as the
post mortem report, in our opinion, has clarified the said
position during the course of his examination, though belatedly.
From the very nature of the wounds found on the body of the
deceased, it is clear that they died of gunshot injuries which is
not seriously disputed. What is being disputed by the learned
counsel is the points of entry and exit which on facts of this
case, would make a very little difference since the other
evidence adduced by the prosecution clearly shows that the
deceased died out of gunshot injuries. Some discrepancy as to
the nature of entry and exit on facts of this case would not make
the prosecution case any weaker. It is more so because of the
fact that the casings of the bullets which were recovered by the
Investigating Officer were positively proved by the ballistic
expert as of those bullets which were discharged from the
weapons recovered from the appellants and these casings
having been found near the bodies of the deceased on the roof
of their house would establish that the deceased died of bullets
discharged from the weapons seized from the appellants. In
such circumstances, the question of entry or exit of the wounds
would lose its significance if the presence of the accused
persons with these weapons at that place and time is otherwise
established by the prosecution. Herein, we must record that
while the learned counsel for the appellants is unable to
question the correctness of the ballistic expert’s opinion, he,
however, states that there is no evidence to show that the bullet
casings sent to the ballistic expert are actually the same casings
that were found near the dead bodies because the Investigating
Officer in Ex. DA, the spot Mahazar, has not noted that he had
recovered those bullet casings. For this the learned counsel
relied on the entry made in Col.23 of Ex. DA. In the said
column under the heading ’Articles found near the dead body’,
nothing is entered. Such omission, if any, in our opinion does
not disprove the prosecution case that these bullet casings were
found near the dead bodies and were seized, packed and sent to
the ballistic expert. Because in the evidence of the Investigating
Officer he has in specific terms stated that he found these bullet
casings near the bodies of the deceased and he seized, sealed
and sent them to the ballistic expert which statement of the
Investigating Officer is not challenged in the cross-
examination, therefore, mere lack of entry in Col. 23 would not
in our opinion make the evidence of the Investigating Officer
under oath which is unchallenged as unbelievable. Therefore,
we reject this argument of the learned counsel and accept the
evidence of the prosecution that the casings sent by the
Investigating Officer are of the bullets discharged from the
weapons in question.
Coming to the incident in question, learned counsel
pointed out from the evidence of PWs.3 and 4 that they had
climbed on the roof of the deceased’s house from entirely a
different way than the one taken by the deceased and the
assailants. Therefore, it is contended that it is highly improbable
that from the place where these witnesses were standing they
would have been able to witness the incident in question. It is
also pointed out from their evidence that these witnesses were
hiding behind parapet wall therefore definitely they could not
have seen the incident in question. Here again we must notice
that though it is true that the witnesses have stated that they
went to the roof from a different direction they were specific in
their evidence as to the visibility of the place of the incident
from the place where they were standing. The fact that they
were trying to hide themselves from the assailants would not
conclusively establish that they were not able to see the
assailants. It is not as if they ran away from the place of the
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incident or locked themselves in such a manner as not to be
able to see the incident. As a matter of fact they did go up to the
roof and noticed the incident though they did not make
themselves visible to the assailants. The fact that PW-3 did not
intervene in the fight would also, in any manner, make his
evidence less acceptable. In our opinion PW-3 being the son of
Virsa Singh and residing with him was expected to be present
in the normal course because it was a time for dinner. Even
PW-4 who was a close relative and who was staying just one
and a half kilometers away from the house of the deceased, has
given good reasons to say why he was present at the place of
the incident. He has stated in his evidence that he had borrowed
a trolly from the deceased and came to the latter’s house to
return the same. This evidence cannot be disbelieved merely
because the Investigating Officer did not notice the trolly in the
house of the deceased at the time of inquest.
Having carefully considered the evidence produced by
the prosecution and the reasoning of the court below, we do not
find any ground to differ from the same, hence, we reject the
challenge of the appellants made in this appeal as to their
conviction and sentence.
Learned counsel for the appellants then questioned that
part of the judgment by which the High Court had awarded
Rs.4 lacs compensation in exercise of its power under Section
357 Cr.P.C. He first of all submitted that his client did not have
any court notice of the revision petition filed by the
complainant because the same was not actually admitted nor
any notice was issued. From the ordersheet of the proceedings
of the revision petition it is seen that the court had tagged this
revision petition along with the Reference case as well as the
criminal appeals at the time of admission though no notice was
issued. Parties were aware of this petition because arguments
were addressed on this question. Hence, this technical
objection cannot be entertained because no prejudice is caused
to the appellants on this count. At this stage we may also take
note of the objection raised on behalf of the caveator-
complainant that the appellants have not preferred any separate
appeal against the judgment of the High Court rendered in Crl.
Revision No.443/99 and therefore technically there is no
challenge to that part of the judgment at all. Learned counsel for
the appellants submitted that they have challenged the judgment
of the High Court in its entirety, even though the number of the
revision petition is not mentioned in the cause title, therefore,
this objection should not be entertained. We think both the
defects pointed out by learned counsel for the appellants as to
non-issuance of the notice by the High Court as also the
argument of the respondent that there being no specific appeal
against the order of the High Court in Crl. Revision No.443/99
are too technical a matter and none of the parties are prejudiced
because of these technical defaults, therefore, we will consider
the objection of the appellant as to the grant of compensation by
the High Court on its merit. In this regard we have heard Mr. L.
K. Pandey, learned counsel appearing for the complainant also.
According to Mr. Sinha, learned senior counsel, while
exercising the power under Section 357 Cr.P.C. if the court
decides to levy a fine then the compensation will have to be
paid out of the fine as stipulated under Section 357 (1)(b). In
the instance case he points out that the Sessions Judge had
awarded a fine of Rs.5,000/- in regard to the offence under
Section 302, therefore, the High Court could have in appeal or
revision, enhanced that fine to a reasonable extent and awarded
a compensation from out of that amount, according to the
learned counsel, the court could not have awarded
compensation in addition to the fine that is awarded in regard to
the same offence. We are not in agreement with this argument
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of the learned counsel. Learned counsel presumes that the High
Court has also confirmed the fine of Rs.5,000/- awarded by the
learned Sessions Judge for offence under Section 302 IPC. A
perusal of the operative part of the judgment of the High Court
clearly shows that so far as the punishment under Section 302 is
concerned, it has disagreed with the Sessions Court and altered
the sentence to one of life imprisonment from death. It has
nowhere stated that it is also awarding a fine or that it was
confirming the fine awarded by the Sessions Court for the
offence under Section 302 IPC. In the absence of any such
specific recording in our opinion it should be deemed that the
High Court has awarded only a sentence of life imprisonment
for an offence under Section 302 IPC. In such cases where the
court does not award a fine along with a substantive sentence,
Section 357(3) comes into play and it is open to the court to
award compensation to the victim or his family. In our opinion
it is in the exercise of this power under Section 357(3) that the
High Court has awarded the compensation in question,
therefore it was well within the jurisdiction of the High Court.
The question then is, as contended by the learned counsel for
the appellants, was there sufficient material for awarding this
sum of Rs.2 lacs each. Learned counsel submits that this figure
is arrived at arbitrarily by the High Court without there being
any evidence in this regard and that the High Court has not
given an opportunity to the appellants to adduce any evidence
as to their monetary capability or as to the requirement of
victim’s family. Therefore, the learned counsel pleads that this
exorbitant amount could not have been awarded. In support of
this argument learned counsel has relied on Palaniappa Gounder
v. The State of Tamil Nadu and Ors. (AIR 1977 SC 1323) and
Sarwan Singh & Ors. V. The State of Punjab (AIR 1978 SC
1525). It is true that in those cases this Court while considering
the compensation awarded by the courts below held that the
compensation in question should commensurate with the
capacity of the accused to pay as also other facts and
circumstances of that case like the gravity of the offence, the
needs of the victim’s family etc. While saying so, we notice
from these very same judgments cited by the learned counsel
that it is clear that the jurisdiction of the court to grant
compensation is accepted by this Court.
It is true that the High Court in the instant case did not
have sufficient material before it to correctly assess the capacity
of the accused to pay the compensation but then keeping the
object of the Section in mind as seen from the reasoning of the
High Court we think it is a fit case in which the court was
justified in invoking Section 357. The question then will be : is
the amount of Rs.2 lakhs per accused too exorbitant a figure ?
Since the material on record is scanty, the court will have to
assess this monetary figure from material available and also
taking into consideration the facts, judicial notice of which the
court can take note of.
We have perused the records to find out the reasonable
amount which would befit the facts of this case as also the
capacity of the appellants to pay. It is on record that the
appellants are owning agricultural land though the extent and
fertility of the same is not available. It is also seen that they
own a tractor and a trolly which we can assume are normally
owned by farmers having large extent of land. We also notice
that they own a Maruti car which also indicates that appellant
are reasonably affluent. On this basis, we think it is reasonable
to conclude that the appellants are capable of paying at least
Rs.1 lac per head as compensation. Therefore, we modify the
order of the High Court by reducing the compensation payable
from Rs.2 lakhs each to Rs.1 lakh each and direct the appellants
to pay the said sum, totalling Rs.2 lakhs, as directed by the
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High Court.
With this modification the substantive appeal of the
appellants in regard to their conviction and sentence is
dismissed and their challenge to the grant of compensation is
accepted partly and the compensation granted by the High
Court is modified, as stated above.