Full Judgment
Crl. Appeal No.955-DB of 2002, -1- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** Crl. Appeal No.955-DB of 2002 Date of Decision:
14. 05.2013 ***** Harinder Sharma @ Harry . . . .Appellant Versus State of Punjab . . . . Respondent ***** Crl. Appeal No.25-DB of 2003 ***** Jatinder Sharma and another . . . .Appellants Versus State of Punjab . . . . Respondent ***** Crl. Appeal No.64-DB of 2003 ***** Gautum Kalia . . . .Appellant Versus State of Punjab . . . . Respondent ***** Crl. Appeal No.144-DB of 2003 ***** Deepak Thakur . . . .Appellant Versus State of Punjab . . . . Respondent ***** Crl. Appeal No.955-DB of 2002, -2- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 CORAM: HON’BLE MR.JUSTICE JASBIR SINGH, ACTING CHIEF JUSTICE HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.Ashok Saini, Advocate, for the appellant (in Crl. Appeal No No.955-DB of 2002) Mr.R.K. Trikha, Advocate, for the appellants (in Crl. Appeal No No.25-DB of 2003) Mr.S.S. Rangi, Advocate, for the appellant (in Crl. Appeal No No.64-DB of 2003) Mr.H.K. Aurora, Advocate, for the appellant (in Crl. Appeal No No.144-DB of 2003) Mr.A.S. Grewal, Addl. A.G. Punjab. ***** RAKESH KUMAR JAIN, J.Nine accused, namely, Jatinder Sharma, Harinder Sharma @ Harry, Deepak Thakur, Parmod Kumar Sharma, Shalinder Sharma, Vinot Kumar Sharma, Gautam Kalia, Jupinder Singh and Kulwinder Singh @ Bantu were tried together for the offence committed under Section 302 read with other Sections of the Indian Penal Code [for short ‘the IPC’]. for murdering Harjit Singh. Out of aforesaid nine accused, Deepak Thakur, Harinder Sharma @ Harry, Gautam Kalia, Shalinder Sharma and Jatinder Sharma were convicted for offence under Sections 148, 302/149, 324/149 & 323/149 of the IPC. Offence under Section 25/54/59 of the Arms Act was proved against Gautam Kalia and was duly convicted. The remaining accused, namely, Parmod Kumar Sharma, Vinot Kumar Sharma, Jupinder Singh and Kulwinder Singh @ Bantu were acquitted. After the order of conviction dated 16.12.2002, the Crl. Appeal No.955-DB of 2002, -3- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 convicted accused were sentenced on the same day in the following manner: - Deepak Thakur, U/s 148 IPC R.I. for two years each Harinder Sharma, Gautam Kalia, Shalinder Sharma and Jatinder Sharma Gautam Kalia U/s 302 IPC Life imprisonment and to pay a fine of Rs.1000/- or in default of payment of fine to further undergo R.I. for one month. Gautum Kalia U/s R.I. for 6 months. 25/54/59 Arms Act. Deepak Thakur, U/s 302/149 Life imprisonment and Harinder Sharma, IPC to pay a fine of Shalinder Sharma Rs.1000/- each or in and Jatinder Sharma default of payment of fine to further undergo R.I. for one month. Deepak Thakur, U/s 324/149 R.I. for one year each. Harinder Sharma, IPC Gautam Kalia, Shalinder Sharma and Jatinder Sharma Deepak Thakur, U/s 323/149 R.I. for six months Harinder Sharma, each. Gautam Kalia, IPC Shalinder Sharma and Jatinder Sharma Aggrieved against the order of conviction and sentence four appeals have been filed namely Crl. Appeal No.955-DB-2002 by Harinder Sharma @ Harry, Crl. Appeal No.25-DB of 2003 by Jatinder Sharma and Shalinder Sharma, Crl. Appeal No.64-DB-2003 by Crl. Appeal No.955-DB of 2002, -4- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 Gautam Kalia and Crl. Appeal No.144-DB of 2003 by Deepak Thakur. It would be relevant to mention here that during the pendency of the appeal, appellant Jatinder Sharma in Crl. Appeal No.25-DB of 2003 has unfortunately expired, therefore, the said appeal is being pursued by other appellant Shailender Sharma. The alleged occurrence took place on 5.4.1999 at 7:00 P.M. at Civil Hospital, Hoshiarpur. On the basis of statement (Ex.PJ.of Jagdip Singh (PW6) brother of the deceased, recorded by SI/SHO Jasbir Singh (PW10), formal FIR (Ex.PJ/2) was registered on the same day i.e. 5.4.1999 at about 11:50 P.M. The author of the FIR has stated that on 5.4.1999 at about 9 A.M. he and his brother Harjit Singh were going from their house towards Clock Tower on Scooter. When they reached near the Old Tehsil Complex Hoshiarpur, Deepak Thakur and Harjinder Sharma came on a Hero Honda Motor Cycle and stopped it in front of their scooter. They also stopped there. Thereafter Deepak Thakur gave a sound of khangura (coughed) and there were exchange of hot words between them. He left his brother Harjit Singh at Mani Surgical Store and returned home. On the same day at about 6.00 P.M. when he came to take Harjit Singh back from Mani Surgical Store, his brother Harjit Singh told him that Harjinder Sharma and Deepak Thakur have given him beatings. He took him to the Civil Hospital, Hoshiarpur for medical examination. At about 7.00 P.M. when they reached in front of Emergency Ward of Civil Hospital, Hoshiarpur, Gautam Kalia, Kulwinder Singh @ Bantu, Jatinder Crl. Appeal No.955-DB of 2002, -5- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 Sharma, Jupinder Singh, Harinder Sharma @ Happy, Deepak Thakur, Deepak Arora, Parmod Kumar Sharma and Vinot Kumar Sharma were standing there and on seeing Harjit Singh, Happy and Deepak raised lalkara for having a fight with them. Gautam Kalia gave a knife blow to his brother which hit under his left flank as a result of which he firstly fell on the scooter standing nearby and then fell on the barbed wire. He raised hue and cry and tried to save his brother but by that time Parmod Kumar Sharma and Vinot Kumar Sharma raised lalkara that one has gone and not it’s turn of the other. On hearing this, Jupinder Singh and Deepak caught hold of him from his arms and Kulwinder Singh @ Bantu took out knife from the dub of his pant and gave multiple blows to him which hit on the right side of his head, right ear and back side of thigh. During this fight he also sustained bruising under his neck and right elbow. His brother died at the spot due to knife injuries and he sustained multiple injuries. He was admitted in the emergency ward of Civil Hospital, Hoshiarpur. Cause of the occurrence is that Deepak Thakur and Harjinder Sharma stopped motorcycle in front of their scooter and gave a sound of khangura. The postmortem was conducted by Parampal Singh Sandhu, SMO, Civil Hospital, Hoshiarpura (PW3) on 6.4.1999 at 3.00 P.M. and found following injuries: -
“1. A stab wound elliptical in shape measuring 2.4 cm x 1cm at its widest was present on the left side of back of Crl. Appeal No.955-DB of 2002, -6- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 chest 12 cm below the lower lip of scapula. On dissection it communicated with the left thorax through 8th intercostal space into the left lung’s lower lobe, where its dimensions were 2 cm x 0.4 cm. the left pleural vacity contained about one litre of fluid and clotted blood.
2. A purplish circular bruise was present 2.5 cm in diameter on left cheek, one on below left lower eye lid. On dissection, infiltration of blood present.
3. Four reddish brown abrasions varying in size from 0.3cm to 3cm were placed in a row. Horizontally 2cm lateral to injury No.2.
4. A circular purplish bruise one cm in diameter was present on inner aspect of right side of upper lip.
5. A purplish bruise 6cm x 5cm was placed obliquely on right side of neck starting from midline. On dissection, infiltration of blood was present. Crl. Appeal No.955-DB of 2002, -7- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB o”
6. A purplish bruise 8cm x 4cm was present behind the right ear and involving its pinnas back.
7. A purplish bruise present on the back of left pinna.
8. A purplish bruise 2.5 cm x 2.5 cm was present on lateral end of right collar bone.
9. An obliquely placed bruise 2.5cm x 0.5cm was present 4cm above the right nipple. Infiltration of blood was present.
10. A purplish bruise 5cm x 1cm was present on the left side of chest on lateral end of left collar bone. Infiltration of blood was present.
11. An elliptical incised wound 1.5cm x 0.3cm was horizontally placed on the left forearm on its outer aspect .7cm distal to the left elbow.
12. An elliptical incised wound 1.8cm x 0.5cm was vertically placed, 4cm below injury No.11. On dissection both injuries No.11 & 12 were skin deep infiltration of blood was present in an area 7cm in diameter. Crl. Appeal No.955-DB of 2002, -8- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB o”
13. An elliptical abrasion 1.4cm x 0.5cm was present on the left elbow. Placed horizontally.
14. An elliptical abrasion 2cm x 0.5cm was placed 1.5cm below injury No.13.”
. He found all the injuries were ante-mortem in nature and cause of death was shock and haemorrhage, sufficient to cause death in the ordinary course of nature. The probable time elapsed between injuries and death was half an hour and between death and postmortem examination was within 24 hours. He also opined on seeing knife (Ex.P1) that injury No.1 on the dead body was possible with that knife. He opined vide endorsement Ex.PD that injury No.1 was the proximate cause of death and injury No.1 was caused by a weapon sharp at both margins. The complainant Jagdeep Singh (PW6) was also medico legally examined on 5.4.1999 at 8:40 P.M. by Dr.J.S. Dhami, MO, Civil Hospital, Hoshiarpur (PW5), who found the following injuries on his person: -
“1. Incised wound 4 x 0.5cm obliquely placed bone deep present on the right occipito temporal region of skull, 10cm above the right ear. Fresh bleeding was present. Advised X ray.
2. Incised wound 1.5 cm 0.5 cm present 3 cm behind the right ear. Crl. Appeal No.955-DB of 2002, -9- Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 Fresh bleeding was present. Advised X ray.
3. Reddish abrasion 2 x 1 cm surrounded by defused swelling present on the left sternot clavicular joint. Advised Xray.
4. Incised wound 1.5 x 1 cm muscle deep present on the post 1 at. aspect of middle or right thigh. Fresh bleeding was present. Advised ortho opinion.
5. Incised wound 1.5 x 0.8 cm muscle deep present on the middle of left gluteal region. Fresh bleeding present. Advised ortho opinion.
6. Complained of pain on the back of right elbow. Tenderness present. Advised X ray.”
. The probable duration of injuries were found to be within six hours and the kind of weapon used in the injuries No.1,2,4 and 5 was sharp in nature. After completion of the investigation, the report was submitted. The prosecution examined Dr. Tej Pal, MO, Civil Hospital, Hoshiarpur as PW1 who declared vide endorsement Crl. Appeal No.955-DB of 2002, - 10 - Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 Ex.PA/1 that Jagdeep Singh was fit to make statement at 10:45 P.M. on 5.4.1999, Dr. Surinder Gangar, Radiologist Civil Hospital, Hoshiarpur as PW2 who conducted X ray examination of PW6 and could not found any fracture, Dr. Parampal Singh Sandhu, SMO, Civil Hospital, Hoshiarpur as PW3, who conducted autopsy of the deceased, Dr. J.S. Purewal, Ortho Specialist, Civil Hospital, Hoshiarpur as PW4, who gave his opinion regarding injuries No.4 & 5 suffered by PW6, Sohan Singh as PW7, Magh Singh, Clerk, DTO Officer, Hoshiarpur as PW8, Surinder Singh as PW9, Inspector Jasbir Singh as PW10, HC Raj Kumar as PW11, ASI Vijay Singh as PW12, Constable Jit Singh as PW13, ASI Mohan Lal as PW14, ASI Tarlok Masih as PW15. After the examination of PWs was over, statements of accused/appellants were recorded separately under Section 313 of the Cr.P.C. in which they pleaded innocence and false implication. They also examined Dr. Bhupinder Singh as DW1, Dr. M.L. Puri as DW2, Sandip Saroj as DW3, Kehar Singh as DW4, Devinder Singh as DW5 and also tendered a copy of judgment Ex.DC. It is pertinent to mention here that Shalinder Sharma, appellant in Crl. Appeal No.25-DB-2003 was not named in the FIR but he was named in the supplementary statement of PW6 (Ex.DA). Mr.S.S. Rangi, learned counsel appearing for the appellant-Gautam Kalia has submitted that it is a case of three occurrences in which the first occurrence took place at 9:00 A.M. when Deepak Thakur and Harinder Sharma stopped the scooter of Crl. Appeal No.955-DB of 2002, - 11 - Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 the injured and the deceased. Second occurrence took place at 5:00 P.M. at Mani Surgical Store when Harjeet Singh (deceased) disclosed that he was beaten by Deepak and other persons and the ultimate occurrence took place at 7:00 P.M. at Civil Hospital, Hoshiarpur when deceased and injured were given knife injuries. He submitted that there is no motive on the part of the appellant to commit the crime, there was delay in registration of an FIR and that ocular version is not corroborated with the medical version. Mr.H.S. Aurora, learned counsel appearing for Deepak Thakur has submitted that only a lalkara is attributed to him but he has not caused any injury whereas Mr.Ashok Saini, learned counsel appearing for Harinder Sharma @ Harry has submitted that lalkara was only to teach them a lesson for having an altercation. On the other hand, counsel for the State has argued that there is hardly any delay in registration of the FIR because the opinion by M.O. to the Investigating Officer reached at 10:30 P.M. to send a Ruka immediately, statement of Jagdeep Singh was recorded at 11:30 P.M. and FIR was registered at 12:40 A.M. (night). The motive for committing the offence was writ large because there is a sequence of occurrence on the same day, at different point of time, the appellants wanted to teach a lesson to the deceased and his injured brother. Pursuant to which they attacked them with knifes and unfortunately Harjit Singh suffered fatal blow and succumbed to the injuries. Crl. Appeal No.955-DB of 2002, - 12 - Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 We have heard learned counsel for the parties and perused the record. The first occurrence took place at 9:00 A.M., second at 5:00 P.M. and third at 7:00 P.M. The injured (PW6) was present at the first occurrence and the third occurrence and was medico legally examined on the same day at 8:40 P.M. in which he was found to have suffered as many as six injuries in which four were incised wounds. These injuries were not proved to be self-suffered. After he was medico legally examined, the Doctor sent the opinion to the Police and PW7 and PW10 reached the hospital at 11:35 P.M. and FIR was registered at 11:50 P.M by him. Special report reached the house of Illaqa Magistrate at 2:20 A.M. i.e. on the same night. Thus, there was hardly any delay which could be considered to be material for the purpose of creating doubt in the story of the prosecution. Moreover, injuries suffered by PW6 are not proved to be self-suffered lends credence to the prosecution story about the presence of the injured at the scene of occurrence who suffered injuries in the course of saving his brother from the onslaught of the assailants/appellants. The lower Court had not accepted the story propounded by Deepak Thakur and Harinder Sharma about their admission to the Hospital for the injuries allegedly suffered by them and not explained. It has been rightly held that it was for the accused/appellants to explain their injuries and to tell Court as to when they were admitted in the hospital but in the absence of cross- examination of any Doctor to prove this fact and that an occurrence Crl. Appeal No.955-DB of 2002, - 13 - Crl. Appeal No.25-DB of 2003, Crl. Appeal No.64-DB of 2003 & Crl. Appeal No.144-DB of 2003 has taken place in the Hospital itself, the injuries might have been fabricated for getting admission in the hospital so as to take the benefit of those injuries. It has also been submitted by counsel for the appellants that only lalkara has been attributed since they have not inflicted any injury they have no motive to participate in the crime. We are not satisfied with the arguments raised by counsel for the appellants in this regard because they were present at all the three times and places of occurrence and were very much part and parcel of the brawl when actual injuries were inflicted resulting the death of young person. No other point has been raised. Looking from any angle, we do not find any merit in the present appeal or any error in the appreciation of evidence by the learned Court below while convicting and sentencing the appellants for the murder of Harjit Singh. Hence, finding all the appeals denuded of merit are hereby dismissed. (JASBIR SINGH) (RAKESH KUMAR JAIN) ACTING CHIEF JUSTICE JUDGE 14 05.2013 Vivek