GURCHARAN SINGH OTHERS Vs. STATE OF PUNJAB

JUDGEMENT

(1.) These two appeals arise out of a common judgment of the Punjab and Haryana High court. Gurcharan Singh, Bharpur Singh and Jagwinder Singh, original accused 2 to 4 are the appellants in Criminal Appeal No. 555 of 1984. Mohinder Singh, original accused 1 is the appellant in Criminal Appeal No. 840 of 1985. Gurcharan Singh, A-2 died during the pendency of the appeal. All these four accused were tried for offences punishable under S. 302/34 Indian Penal Code for causing the death of Mander Singh and Bhura Singh, sons of Sarwan Singh by shooting them and unders. 307/34 for attempted murder of one Gurjant Singh, Public Witness 6. The trial court convicted Mohinder Singh, A-1 under Section 304, Part I, Indian Penal Code and sentenced him to undergo seven years' RI and acquitted the others. The State preferred an appeal. Mohinder Singh, A-1 also preferred an appeal challenging his conviction under Section 304, Part I, Indian Penal Code. The High court allowed the appeal filed by the State and dismissed the appeal filed by A-1. The High court reversed the order of acquittal and convicted Mohinder Singh, A-1 and Gurcharan Singh, A-2 under Section 302 Indian Penal Code for committing the murder of Mander Singh and sentenced each of them to undergo imprisonment for life and for the same offence Bharpur Singh, A-3 and Jagwinder Singh, A-4 were convicted under S. 302/34 Indian Penal Code and sentenced to undergo imprisonment for life and also to pay a fine of Rs. 5,000. 00 each in default of payment of which to further undergo six months' Rl. For the murder of Bhura Singh, the High court convicted A-1 and A-2 under Section 302 Indian Penal Code and sentenced them to undergo imprisonment for life and for the same offence A-3 and A-4 were convicted under S. 302/34 Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000. 00 each in default of payment of which to further undergo six months' Rl. For murderous assault on Gurjant Singh, Public Witness 6, Jagwinder Singh, A-4 was also convicted under Section 307 Indian Penal Code and sentenced to undergo five years' Rl and for the same offence A-1, A-2 and A-3 were also convicted under Section 307 Indian Penal Code and sentenced to undergo five years' Rl. Each of the accused was further sentenced to pay Rs. 2,000. 00 as fine failing which to undergo two months' Rl. Each of them was further convicted under Section 27 of the Arms Act and sentenced to undergo one year's Rl. All the sentences were directed to run concurrently. Hence the present appeals have been filed by the convicted accused under Section 2 of the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act read with Section 379 Criminal Procedure Code.

(2.) The prosecution case is as follows : All the accused, the deceased and the material witnesses belong to Village Mohalan. Pratap Singh, Bala Singh and Kirpal Singh were real brothers. A-1 and one Govind Singh are the sons of Pratap Singh. A-2 and A-3 are the sons of Bala Singh. A-4 is the son of Gurcharan Singh, A-2. About 30 to 35 years back, Pratap Singh, father of A-1 and Kirpal Singh, his uncle were murdered. Sarwan Singh, father of Mander Singh, deceased 1 ('d-l' for short) and Bhura Singh, deceased 2 ('d-2' for short) were prosecuted for those murders. Public Witness 7, Sham Kaur is the widow of Sarwan Singh and mother of deceased 1 and 2. Ronak Singh, Public Witness 5 is the son of Mander Singh, deceased 1 and Gurjant Singh, Public Witness 6 is his partner in cultivation. Bhura Singh, D-2 lived at Village Mohalan and his brother D-l and Jasdev Singh lived at Village Dhunika at a distance of 1 1/2 miles from Village Mohalan as they owned land there. Public Witness 7, Sham Kaur and Public Witness 6 lived at Village Dhunika.

(3.) On 24/02/1979 at about 6.30 a. m. Bhura Singh, D-2 was going on his tractor in Village Mohalan. When he was near the Dharamshala of the village, Gobind Singh s/o Partap Singh and Gurdev Singh s/o Gel Singh came out of the Dharamshala armed with gandasa. Gurdev Singh flung a gandasa blow towards Bhura Singh, but he ducked. He, however, got a minor injury near the ear. Govind Singh caused an abrasion on the right side of his back. Bhura Singh jumped out of the tractor. Govind Singh shouted that he would take revenge of his father on that day. Ronak Singh, Public Witness 5, nephew of Bhura Singhraised alarm. At that stage, Nachhattar Singh, came there and intervened. The two assailants while leaving threatened that they would see the end of Bhura Singh some other time. Bhura Singh went to the police station and made a report. This was said to be the immediate motive for the occurrence. Bhura Singh was sent for medical examination and the doctor found a lacerated wound near the right ear. Public Witness 12, ASI went to Village Mohalan for inquiring into that incident and he arrested Gobind Singh and Gurdev Singh and locked them up in the police station. Public Witness 5 went to Village Dhunika and informed his father Mander Singh, D-l about the morning incident. Mander Singh, D-l, Public Witness 5, Ronak Singh, Public Witness 6, Gurjant Singh and Public Witness 7, Sham Kaur came to Village Mohalan to enquire about the health of Bhura Singh. At about 6.30 p. m. on that very day, they were going back to Village Dhunika from Village Mohalan on the tractor driven by Public Witness 5. Mander Singh, D-l was sitting on the right side of the mudguard of the tractor and Public Witness 7 was sitting on the left side. Bhura Singh, D-2 was standing and Public Witness 6 was sitting in the trailer attached to that tractor and was facing towards the driver's seat. When the tractor reached near the house of Jagga Mistri, Public Witness 5 and his companions saw A-1 and A-2 standing towards their right side armed with 12 bore D. B. B. L. guns. A-4 armed with a 12 bore D. B. B. L. gun and A-3 armed with a pistol were standing on the left side. The accused were standing at a higher elevation on both the sides. A-3 fired a shot which hit the tyre of the tractor and the same got deflated. A-2 fired a shot hitting Mander Singh, D-l on the neck who clumped down over the tractor. A-2 fired another shot hitting Bhura Singh, D-2 in the abdomen. A-1 fired a shot hitting Bhura Singh on the front side of the left shoulder who fell down on the ground from the trailer. A-1 fired another shot which hit Mander Singh on the back. Public Witness 6 jumped from the trailer on the ground and A-4 fired towards Public Witness 6 hitting him on the right leg. PWs 5 and 7 jumped from the tractor and ran away. They reached the house of Baldev Singh, Public Witness 8, a member of the Gram Panchayat of Village Mohalan. The accused kept firing and raising shouts. Public Witness 6 narrated the incident to Public Witness 8. But meanwhile the firing was going on and when the same stopped Public Witness 5 left the house of Public Witness 8 and reached the Police Station, Sangat and reported the matter to SI, Public Witness 15 who recorded the FIR and went to the scene of occurrence in the morning of 25/02/1979. The SI inspected the place of occurrence, got the same photographed and he found the dead body of Mander Singh, D-l in front of the tractor and the dead body of Bhura Singh, D-2 behind the trailer. Inquests were held and the dead bodies were sent for post-mortem. From near the dead body of Mander Singh, the SI picked up a Mauser pistol and a holster containing 20 rounds. One 12 bore empty cartridge was also recovered along with 12 wads, 9 lead pieces, and one brass empty cartridge. Public Witness 6 was sent for medical examination. He was examined by Public Witness 3 who found on him a penetrating wound with inverted margins on the lateral aspect of the right lower leg above the ankle joint and there was a corresponding injury. There was another penetrating wound with inverted margins on the lateral aspect of the right foot of Public Witness 6. The doctor, Public Witness 2, who conducted the post-mortem on the dead body of Bhura Singh, D-2 found 10 injuries which could have been caused by a firearm and which were sufficient in the ordinary course of nature to cause death. Likewise on the dead body of Mander Singh, D-l, another doctor, Public Witness 1 found five gunshot injuries which were sufficient in the ordinary course of nature to cause death. On27/02/1979 Harnek Singh, SI, Public Witness 13 arrested A-1 and A-3. A-1 produced 12 bore. gun Ex. P-9 and A-3 produced his licenced pistol Ex. P-10. The empty cartridges were sent to the ballastic expert who after test firing gave the opinion that the empty cartridges were fired through the gun belonging to A-1 and another shell was fired from the pistol of A-3. The expert also gave the opinion that the metallic piece recovered from the tube of the front tyre of the tractor was not a bullet but was a pellet. He found that the empty cartridge shell has been fired through Mauser pistol Ex. P-12. During the course of the investigation, however, the police did not send A-2 and A-4 for trial. The learned committing Magistrate, however, did not agree with the police and he committed all the four accused to the Sessions court.