Balwinder Singh @ Wattan Singh Vs State of Punjab

Sham Sunder, J.@mdashThis appeal is directed against the judgment of conviction, and the order of sentence, dated 25.11.99, rendered by the Court of Sessions Judge, Faridkot, vide which, it convicted the accused (now appellants), for the offences, punishable under Sections 148, 201, 302, 302 read with Section 149 of the Indian Penal Code, and 27 of the Arms Act, and sentenced them, as under :-

All the substantive sentences were ordered to run concurrently.

2. The case of the prosecution, as summarized, proceeded in the manner that Santokh Singh, complainant, was a resident of village Jita Singh Wala. He was having three daughters and two sons. All were married. He was not keeping good health. On account of that reason, his daughter Joginder Kaur, from village Raunta and his son Nirbhai Singh, from Nader Sahib (Maharashtra), had come to see him. On 31.08.1991, at about 5.30 PM, the complainant alongwith his daughter Joginder Kaur, was present in his outer house. Sound of firing was heard, by his daughter, from the side of well. Both the complainant and Joginder Kaur, came out of the outer house and saw Nirbhai Singh, aforesaid (since deceased), came running, from the side of his house. Accused Balwinder Singh, Charan Singh, Gurmail Singh and Ajaib Singh, duly armed with double barrel 12 bore guns, were following Nirbhai Singh (now deceased). Accused Balwinder Singh, fired a shot, with his gun towards Nirbhai Singh, thereby hitting him, on the back side of his neck. Accused Charan Singh, also fired a shot, from his gun, which hit Nirbhai Singh son of the complainant, on the left side of abdomen. Due to the receipt of two gun shot injuries, the deceased fell down. Then Gurmail Singh, accused fired a shot, which hit Nirbhai Singh, on his left shoulder. He also fired another shot, which hit the deceased, on the left side of his neck. Accused Ajaib Singh, fired a shot, which hit the deceased, near his right thigh. Upon this, the complainant and his daughter raised alarm. Udhey Singh and Kalu Singh, accused, came with cans, in their hands, and sprinkled kerosene on Nirbhai Singh, while Gurtej Singh, accused, ignited a match stick, and threw it on him. After that, on raising alarm, the accused ran away, from the spot, with their respective weapons and other articles. Nirbhai Singh, son of the complainant died at the spot. After leaving his daughter Joginder Kaur, to guard the dead-body of Nirbhai Singh, Santokh Singh, complainant, went to his son-in-law, in village Wander, wherefrom, he and Makhan Singh, started to inform the Police. The statement of Santokh Singh, complainant, was recorded by the Police, containing the aforesaid facts.

3. The motive for causing the murder of Nirbhai Singh, son of the complainant, was to the effect, that earlier, the dead-body of the nephew of Gurmail Singh, one of the accused, was thrown, in the fields of the complainant, by someone. Accused Gurmail Singh, had a suspicion, against Jagroop Singh, son of the complainant, Bikkar Singh and Jagsir Singh, that they might have killed his nephew, and thrown the dead-body, in the fields of the complainant. Gurmail Singh, accused, lodged a report in the Police Station, against Jagroop Singh, Bikkar Singh and Jagsir Singh, for the murder of his nephew. It was further stated that, on account of that reason, the accused connived to kill Nirbhai Singh, as they were thinking that the deceased would pursue the case of Jagroop Singh, Bikkar Singh and Jagsir Singh.

4. The statements of the witnesses were recorded. The accused were arrested. The site plan of the place of occurrence, was prepared. After the completion of investigation, the accused were challaned.

5. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received, by commitment, in the Court of Sessions, charge u/s 148 of the Indian Penal Code, against all the accused, u/s 302 of the Indian Penal Code, against Balwinder Singh, Charan Singh, Gurmail Singh and Ajaib Singh, u/s 302 read with Section 149 of the Indian Penal Code, against Kalu Singh, Udhey Singh and Gurtej Singh, u/s 201 of the Indian Penal Code, against Kalu Singh, Udhey Singh and Gurtej Singh, u/s 201 read with Section 149 of the Indian Penal Code, against Balwinder Singh, Charan Singh, Ajaib Singh and Gurmail Singh and u/s 27 of the Arms Act, against Balwinder Singh, Charan Singh, Ajaib Singh and Gurmail Singh, was framed, which was read-over and explained to them, to which he pleaded not guilty, and claimed judicial trial.

6. The prosecution, in support of its case, examined Santokh Singh (PW1), Madan Lal, retired Head Constable (PW2), Joginder Kaur, an eye-witness (PW3), Gursewak Singh, draftsman, who prepared the scaled map exhibit PC (PW4), Constable Gurdip Singh (PW5), Surjit Singh, Head Constable (PW6), Dr. K.K. Aggarwal, Assistant Professor, Forensic Medicines Department, GGS Medical College, Faridkot (PW7), who conducted the post-mortem examination, on the dead-body of Nirbhai Singh, Sub Inspector Jugraj Singh (PW8), Head Constable Kabal Singh (PW9), Constable Surjit Singh (PW10), Laskar Singh, Deputy Superintendent of Police (at the relevant time Station House Officer, Police Station Baghapurana (PW11), Sub Inspector Kashmir Singh (PW12), Surjit Singh, Assistant Sub Inspector (PW13), and Gurnaib Singh, Senior Assistant (retired) (PW14). The Public Prosecutor, for the State, tendered into evidence PR and PS, reports of the Forensic Science Laboratory, Chandigarh. Thereafter, he closed the prosecution evidence.

7. The statements of the accused u/s 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them, that it was a blind murder and the eye- witnesses were introduced later on. They also examined Angrej Singh (DW1), in their defence. Thereafter, they closed the defence evidence.

8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.

9. Feeling aggrieved, the instant appeal, was filed by the appellants.

10. We have heard the Counsel for the parties, and have gone through the record of the case, carefully.

11. The First Information Report, in this case, was lodged promptly. The occurrence, in this case, took place, at about 5.30 PM., in village Jita Singh Wala, which is at a distance of 14 kms from Police Station Baghapurana. According to Santokh Singh, PW1, Nirbhai Singh, died, at the spot. After leaving Joginder Kaur, his daughter, to guard the dead-body, he immediately went to another village, to bring his son-in-law, and after taking him, went to the Police Station, where he made statement, which was completed on 31.08.1991 (the date of occurrence), at 10.30 PM, and the First Information Report, was registered, at 11.15 PM. After the death of his son Nirbhai Singh, Santokh Singh, aged about 84/85 years must be completely perplexed and puzzled. He wanted the help of some other male member, so as to approach the Police Station. Within the shortest possible time, after covering a sufficient distance of 14 kms, alongwith his son-in-law, he lodged the report. There was no time, in-between, to hold consultations, to concoct a story, to introduce the false witnesses, and falsely implicate the accused. Special report reached the Illaqa Magistrate, at 1.05 AM, at Moga, at a distance of 18 kms, from Police Station Baghapurana. The principle of law, laid down, in State of Punjab v. Jugraj Singh, 2002 (1) RCR (Crl.) 753 (SC), was to the effect, that prompt lodging of the First Information Report, and its despatch to the Magistrate, strengthens the plea that there was no possibility of either wrong persons being impleaded, as accused, or the persons, who had not seen the occurrence, produced as eye witnesses. The principle of law, laid down, in the aforesaid authority, is fully applicable, to the facts of the present case. The prompt lodging of the First Information Report, in the present case, has ruled out the possibility of concoction of story, introduction of false witnesses, as also false implication of the accused. Prompt lodging of the First Information Report, indicates the truthfulness of the case of the prosecution.

12. The case of the prosecution was unfolded by Santokh Singh, PW1, father of the deceased. According to him, on 30.08.1991, at about 5.30 PM, he and his daughter Joginder Kaur, were present, in the outer-house. He was serving fodder to the cattle. His daughter Joginder Kaur, heard fire shots. He alongwith Joginder Kaur, came out of the house, after hearing the fire shots. Nirbhai Singh, his son was coming running from the side of the well. He was followed by Balwinder Singh, armed with gun, Charan Singh, armed with gun, Gurmail Singh, armed with gun and Ajaib Singh, armed with gun. According to him, Balwinder Singh, fired a shot, at Nirbhai Singh, which hit the backside of his neck. Charan Singh, fired a gun shot, which hit Nirbhai Singh, on the left flank. Gurmail Singh, fired a shot, which hit the shoulder of Nirbhai Singh. Gurmail Singh, again fired another shot, which hit the neck of Nirbhai Singh. Ajaib Singh, fired a shot, which hit the right thigh of Nirbhai Singh. It was further stated, by him, that Kalu Singh and Udhey Singh, accused, sprinkled kerosene oil, on Nirbhai Singh, when he was lying, on the ground, whereas, Gurtej Singh, accused, set him ablaze. It was further stated by him, that the accused then ran away from the spot, with their respective weapons. According to him, the motive for the occurrence, was that the dead-body of the nephew of Gurmail Singh, one of the accused, was thrown, in the fields, by some person. Gurmail Singh, was having a suspicion, against Jagroop Singh son of the complainant, Bikkar Singh and Jagsir Singh, that they might have killed his nephew, and thrown the dead-body in their field. It was, on account of this reason, that the accused connived with each other to eliminate Nirbhai Singh, as they entertained a doubt that if he (Nirbhai Singh), remained alive, he would pursue the case of Jagroop Singh, Bikkar Singh and Jagsir Singh. The statement of Santokh Singh, was duly corroborated, in all material particulars, by Joginder Kaur, PW3, an eye-witness. Further corroboration to the ocular version was provided through the medical evidence of Dr. K.K. Aggarwal, PW7, who conducted the post-mortem examination, on 01.09.1991, at 10.45 AM, on the dead-body of Nirbhai Singh, aged about 44/45 years. It was a dead-body of moderately built and nourished male wearing burnt piece of shirt, on right forearm, bracelet in right forearm, burnt underwear (kachha), and burnt piece of payjama at the hip. He also found superficial burns on scalp, face, neck, front of chest and abdomen and its side, both arms and both legs on interior aspect of the deceased. Blister formation was present here and there. Scalp hair, beard and moustaches were totally burnt. He found the following injuries, on the person of the deceased :-

i. A lacerated wound 5 cms x 4 cms present on back of head and upper part of neck. Margins were inverted.

On dissection there was fracture of occipital bone and upper 3 cervical vertebrae. About 100 cc of fluid and clotted blood was present in the cavity. A piece of wad and two pellets were recovered from fractured cervical vertebrae.

ii. A lacerated wound 10 cms x 5 cms present on medial aspect of left shoulder joint. It was horizontally placed. The lateral part shows inversion and medial showed aversion. It was muscle deep.

iii. A lacerated wound 5 cms x 4 cms present on left side of neck and face over left mandible. Margins were inverted. Clotted blood was present. The underlying mandible facial bones were fractured into multiple pieces. Clotted blood was present.

iv. A lacerated wound 4 cms x 3 cms on left side of abdomen on left aspect 12 cm above iliac crest. Margins were inverted. Clotted blood was present.

On dissection, there were multiple perforations of small and large intestines, mesentery, spine, liver, stomach and bladder. Abdominal cavity was full of fluid and clotted blood. 28 pellets were recovered from various directions of abdominal cavity.

v. A lacerated wound 8 cms x 4 cms present on medial aspect of right thigh in upper 1/3rd. The interior part showed inversion and posterior showed aversion.

Injuries No. 1 to 5, were ante-mortem, in nature. In the opinion of the doctor, the cause of death was the fracture of C1, C2 and C3 vertebrae and injuries No. 1 and 4, were individually sufficient to cause death, in the ordinary course of nature. He also recovered 28 pellets, from the dead-body. Still further corroboration to the ocular and medical evidence was provided through the recovery of a can of the capacity of 5 ltrs, from Udhey Singh, some burnt hair of the head of Nirbhai Singh, one spectacle (half burnt), three coins (half burnt), piece of the burnt shirt, stained with blood, one under-vest (half burnt), stained with blood, and one turban (half burnt), stained with blood, from the spot. Still further corroboration was provided through PR, the report of the Forensic Science Laboratory, according to which, half burnt piece of shirt, half burnt piece of under-vest, and half burnt turban, were found to be stained with human blood. Still further corroboration was provided through PS, report of the Forensic Science Laboratory, according to which, the blood stained earth tallied with the simple earth, which were lifted from the spot. Santokh Singh and Joginder Kaur, were thoroughly cross- examined, but nothing of consequence could be got elicited, from their mouth which may go to discredit their evidence. No doubt, they are the near relations of the deceased, yet their evidence, being convincing, was rightly relied upon, by the trial Court, to come to the conclusion, that the accused committed the offences. They had no ill- will, grudge or enmity, to falsely implicate the accused, in the instant case. Their presence, at the time of occurrence, was most probable and natural. No father and sister, would leave the actual culprits and falsely implicate the innocent persons. The relation witnesses are always out and out, to ensure that the actual culprits are brought to book. These witnesses stood the test of touchstone of all probabilities, during the course of their cross-examination. The trial Court, was, thus, right in acting on the statements of the aforesaid witnesses, duly supported by the medical evidence and other circumstantial evidence, to come to the conclusion, that the accused were guilty of the offences, referred to above.

13. The Counsel for the appellants, however, submitted that both these witnesses were not present, at the spot, but they were introduced, later on. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Had both the witnesses been not present, at the spot, it would not have been possible to get registered the case, within the shortest possible time. The occurrence, took place, at about 5.30 PM. At that time, the presence of the witnesses, at the place of occurrence, was most natural and probable, as the same (occurrence) took place, in front of their house. No doubt, it is evident from the inquest report exhibit PE, that the dead-body of Nirbhai Singh, was identified by Munshi Singh and Harnek Singh. The law was set into motion by Santokh Singh and his statement, as stated above, was completed, at about 10.30 PM, by the Police official, on the basis whereof, the First Information Report, was registered. Santokh Singh, aged about 84/85 years, being the father of the deceased, must be crest fallen, on account of the brutal murder of his son, by the accused, in his very presence. In such a condition, it is not possible for a person, to participate in all the proceedings, which are conducted by the Police, in respect of the dead-body of the deceased. No circumstance, could be pointed out, by the Counsel for the appellants, which could prove that both these witnesses were not present, at the time of occurrence. Under these circumstances, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.

14. It was next submitted by the Counsel for the appellants, that the trial Court, was wrong, in coming to the conclusion, that Kalu Singh, Udhey Singh and Gurtej Singh, accused, were members of an unlawful assembly, the common object whereof, was to commit the murder of Nirbhai Singh. He further submitted that they did not allegedly burn Nirbhai Singh, by sprinkling kerosene, on him, and setting him ablaze. He further submitted that, at the most, they could only be said to have allegedly destroyed the evidence. He further submitted that the trial Court, was wrong, in recording their conviction for the offence, punishable u/s 302/149 of the Indian Penal Code. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Santokh Singh, PW1, in clear-cut terms, stated that Nirbhai Singh, was being followed by Gurmail Singh, armed with gun, Ajaib Singh, armed with gun, Charan Singh, armed with gun and Balwinder Singh, armed with gun. He also, in clear-cut terms, stated that all of them fired at Nirbhai Singh. It was further stated, by him, that Kalu Singh and Udhey Singh, accused, sprinkled oil, on Nirbhai Singh, when he had fallen on the ground, and Gurtej Singh, set ablaze Nirbhai Singh. If the evidence of Santokh Singh, is read, in entirety, without tearing the same into pieces, it becomes clear that all the accused came together to the spot. Four of them were, armed with DBBL 12 bore guns, and the remaining three were in possession of cans, containing kerosene. They knew the common object of the assembly, which was to commit the murder of Nirbhai Singh. Not only this, Joginder Kaur, PW3, in clear-cut terms stated, in her statement, that all the seven accused had come together and ran away after the occurrence together. The common object may erupt, at the spur of the movement. When the kerosene was sprinkled on Nirbhai Singh, and he was set ablaze, by Udhey Singh, Kalu Singh and Gurtej Singh, they did not know, as to whether, he was alive or dead. At that time, Nirbhai Singh, might be alive, and by burning him, they shared the common object of their co-accused, regarding the commission of his murder. The principle of law, laid down, in Shamshul Kanwar Vs. State of U.P., was to the effect that actual participation in the attack, by all the members of an unlawful assembly, is not necessary, once it is proved that they had the common object to do a criminal act. In Masalti Vs. State of U.P., , it was observed as under :-

What has to be proved against a person, who is alleged to be a member of an unlawful assembly is that he and one of the persons constituting the assembly and he entertained alongwith the other members of the assembly, the common object as defined by S. 141 IPC. Section 142 provides that, however, being aware of facts, which render any assembly on unlawful assembly, if he intentionally joins that assembly or continues in it, he is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five Clauses of S. 141, is an unlawful assembly. The crucial question to determine in such a case, is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by S. 141. While determining this question it becomes relevant to consider whether the assembly consisted of some persons, who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context, that the observations made by this Court in Baladin and Others Vs. State of Uttar Pradesh, assume significance; otherwise in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed illegal overt act or had been guilty of some illegal omission, in pursuance of the common object of the assembly. In fact, S. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of their assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who, at the time of the committing of that offence is a member of the same assembly is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.

15. Therefore, as indicated above, to infer common object, it is not necessary that each one of the members of an unlawful assembly, should have participated in the attack. In the instant case, as stated above, all the accused participated, in the commission of crime, in prosecution of the common object of unlawful assembly. The common object of the unlawful assembly, was to commit the murder of Nirbhai Singh. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected.

16. No other point was urged, by the Counsel for the parties.

17. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, are based, on the correct appreciation of evidence, and law, on the point. The same do not warrant interference, and are liable to be upheld.

18. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same stands dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellants are on bail, their bail bonds, shall stand cancelled.

19. The Chief Judicial Magistrate, is directed to comply with the judgement, with due promptitude, in accordance with the provisions of law, on receipt of a copy thereof.