Present: Mr.P.S.Hundal Sr.Advocate Vs. State of Punjab - Court Judgment

SooperKanoon Citationsooperkanoon.com/1063016
CourtPunjab and Haryana High Court
Decided OnJul-11-2013
AppellantPresent: Mr.P.S.Hundal Sr.Advocate
RespondentState of Punjab
Excerpt:
cra no.736-db of 2001 -1- in the high court of punjab & haryana at chandigarh cra no.736-db of 2001 date of decision:11.07.2013 pargat singh @ fagga @ mohan singh .....appellant versus state of punjab ......respondents coram: hon'ble mr.justice jasbir singh hon'ble mr.justice g.s.sandhawalia present: mr.p.s.hundal, sr.advocate with mr.b.s.jatana, advocate, for the appellant. mrs.ritu punj, addl.a.g, punjab. ***** g.s.sandhawalia j.1. the present appeal has been preferred against the judgment of the sessions judge, faridkot dated 04.08.2001 whereby the appellant was convicted under section 302 of the indian penal code for committing the murder of chitu singh and sentenced to undergo imprisonment for life and pay a fine of `5000/- and in default of payment of fine, to further undergo imprisonment for 6 months in fir no.34 dated 02.07.1996 under sections 120b/302 of the ipc registered at police station gidderbaha.2. the fir in question was lodged on the statement (exhibit pc) of surjit kaur, wife of the deceased, chitu singh, resident of village gurusar. in the said statement, which was recorded at 6.30 a.m. on 02.07.1996 by asi nirmal singh (pw13), it was stated that ranjodh singh, gurlal singh and mohan singh, who were living in the gurudwara of the village, had committed murder of the complainant's nephew, tej singh of the same village. out of the 3 persons, mohan singh was still absconding whereas ranjodh singh and gurlal singh were in jail and the case was pending in the court and the deceased was pursuing sailesh ranjan the said case. one kartar singh, a month and a half from the date of occurrence, 2013.07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -2- told the deceased in the presence of his wife that he should compromise the matter with ranjodh singh otherwise he would have to face its consequences. the accused had come to the house on 01.07.1996 at 10.15 p.m. and called out for the deceased in the presence of gursewak singh, his son, katto, daughter and the complainant. he was carrying a rifle and asked the deceased to compromise in the murder case who had replied that he would consult his nephews on which mohan singh had opened fire with the rifle which hit the deceased on his face and he then fired another shot in the air. due to the alarm raised by them, he went away. the complainant along with her son and daughter remained at the spot in the night out of fear and in the morning, the complainant accompanied by bhola singh, member panchayat went to the police station and met the police party on the way and got her statement recorded. accordingly, on the basis of the said statement, fir was lodged at 6.50 a.m. on 02.07.1996 (exhibit pc/1) which was received by the jmic at 1.20 p.m. on 02.07.1996. the fir reads as under: “statement of surjit kaur w/o chitu singh, caste mazbi sikh, r/o gurusar, aged about 60 years. stated that i am a resident of v. gurusar and do labour work. i have three sons and seven daughters. about 1 ½ years ago from today, ranjodh singh, gurdial singh s/o hazura singh r/o v.nathu pura p.s. gharinda and mohan singh r/o ahrwan who were living in the gurdawara of our village had committed murdered our nephew tej singh s/o kaka singh, mazbi sikh r/o gurusar. ranjodh singh and gurlal singh are in the jail in the said case. mohan singh is still absconding. the said case is still pending in the court. my husband chitu singh was pursuing the said case. about 1 ½ months ago from today, kartar singh s/o darbara singh, jat, r/o gurusar had come in our house and in my presence he told my husband that they should compromise with ranjodh singh etc., failing which they will have to face the consequences. today at about 10.15 p.m. my husband chitu singh was sitting on the cot, in the vacant site outside our house. i, my son gursewak singh and daughter katto sailesh ranjan 2013.07.31 10:17 were sitting near him on the other cot and we were talking. i attest to the accuracy and integrity of this document cra no.736-db of 2001 -3- the electric lamp was on in our courtyard. a person called my husband by his name saying that chitu singh, are you in the house. my husband asked as to who was there. then the said person came near the cot of my husband. we identified him in the light of electric lamp. he was mohan singh of v. ahrwan. he was having a two feet long rifle in his right hand. immediately after his arrival there he asked my husband whether he would compromise the murder case or not. upon which my husband replied that he would answer after consulting his nephews. then mohan singh fired at my husband with the rifle carried by him in his hand which hit him on his face. on our raising noise 'killed-killed' he fired another shot in the air and went away from the spot with his rifle. on hearing our noise, neighbourers also came there. i saw my husband, he had died as a result of fire shot. there being dark and out of fear, we remained at our house. not after leaving my daughter katto and son gursewak singh at the spot to guard the deadbody, i accompanied by bhola singh member panchayat was going to the police station for lodging the report. you have met. action be taken, rti surjit kaur abovesaid, attested sd/- nirmal singh asi, 2.7.96.”3. nirmal singh, asi prepared the inquest report (exhibit pj.on the identification of buta singh, the brother of the deceased and natha singh and sent the dead both to civil hospital, gidderbaha. on inspection of the place of occurrence, he lifted 2 empties of assault rifle (exhibit p1 & p2) and the same were made into a parcel and taken into prossession vide seizure memo (exhibit pk) from 2 different places of the courtyard of the house of chitu singh which was attested by gurjant singh and amar chand. two bullets were also recovered from the courtyard and the same were also made parcel and taken into possession vide memo (exhibit pl). blood stained mattress (gadela) and blood stained portion of twine (vaan) of the cot were made into a parcel and taken into possession vide memo (exhibit pm) along with the blood stained earth (exhibit pn) and rough site plan was prepared (exhibit po). on return to the police sailesh ranjan station, he deposited the same with hc karaj singh. thereafter, on 12.07.1996, 2013.07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -4- ranjodh singh, one of the accused, who died during trial, was arrested and on 05.08.1996, sho sawinder singh (pw15), ps gidderbaha arrested another accused, bhupa singh (who not stands acquitted). the appellant was arrested on 25.07.1997 by the police party comprising sawinder singh, asi nirmal singh, hc ramesh kumar, hc amar chand and another police party headed by sho ranjit singh, ps kotbhai alongwith other police officials under the supervision of baljit singh, dsp, at 9 p.m. in an encounter in which firing had taken place. a separate fir was registered under section 307 ipc in which, one assault rifle along with 40 cartridges were recovered and were taken into possession in fir no.36 dated 25.07.1996 under section 307 ipc and 25 of the arms act at ps giddarbaha and formal arrest of the appellant in the present fir thus, took place on 26.07.1996.4. as per exhibit pa, the postmortem report, 2 injuries were found on the face of the deceased which was proved by dr.a.k.bansal, district health officer, muktsar who conducted the postmortem on 02.07.1996. the said injuries are reproduced as under:“1. lacerated wound 0.9 x 0.5 cm with inverted and contused edges present on the left cheek 2 cms below the left lower eye lid and 2 cms from the left side of nose. on dissection wound extends through the cavity of maxilla into the middle crainial fossa of right side involving the foremen megnum and further extends causing communicated fracture of right side of mendible and further communicates with the exit would on the right side of neck.2. exit wound of right side of neck is 5 cms x 4 cms with irregular margins and was present 1 cm below and behind the right ear pinna. many fragments of bone were present in the wound. bone of skull and face show communated fractures and brain stem shows extensive lacerated wound congulated blood was present in the wound. the wound were antem-oxtem in nature. bladder was empty, otherwise healthy. large intestine contains fical matter, otherwise sailesh ranjan healthy. stomach contained semi digested food abou”2013. 07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -5- ones, otherwise healthy, right side of heart contained blood, left side empty. all other organs were healthy.”5. as per the opinion of the doctor, the death was due to shock and haemorrhage as a result of fire arm injury which was sufficient to cause death in the ordinary course of nature.6. the statements of the eye-witnesses including surjit kaur who supported the initial statement recorded by her on the basis of which fir was lodged and who identified the accused on 08.01.1998 in court were recorded. similar was the statement of gursewak singh, son of the deceased. on the basis of the said statements, the conviction, as noticed above, was recorded by the sessions judge, faridkot who acquitted bhupa singh on the ground that there was no evidence to show that bhupa singh, ranjodh singh and pargat singh had ever entered into a conspiracy for committing the murder of the deceased. the contention of the counsel for the appellant that there was delay in lodging of the fir was rejected on ground that there was fear in the mind of the complainant, as the accused was a proclaimed offender in the earlier case, wherein he had killed the nephew of the deceased, tej singh. it was concluded that the fir was lodged on time since the complainant would have left the house early in the morning at 4 a.m. and it stood recorded by 6.30 a.m. motive was held to be proved since, karam singh, asstt. superintendent of district jail, faridkot (pw6) was produced to show that accused ranjodh singh was confined in fir no.3 dated 01.01.1995 at police station gidderbaha under sections 302, 201 & 511 read with section 34 of the ipc for the murder of tej singh. the submission that accused and the deceased had taken meals 1 ½ hours prior and as per medical evidence, meals had been taken 4 to 6 hours prior, also did not cut much ice with the trial court. it was held that it was not a case of disputed identity and the accused could have been identified by the bulb which was lighting the courtyard. sailesh ranjan the presence of the 2 witnesses was held to be natural since the incident took 2013.07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -6- place in the house of the deceased and the medical evidence was in consonance with the ocular version. similarly, the plea that the accused was already in custody since 09.06.1996 in fir no.28 of the same date, was rejected as was the issue regarding the accused being known as pargat singh. accordingly, conviction was recorded.7. counsel for the appellant has mainly stressed on the issue that as per the fir, it was mentioned that mohan singh was resident of ahrwan whereas the appellant, pargat singh was resident of sanghna, district amritsar and was not known to the complainant and was not properly identified and it was a case of a mistaken identity and reliance has been placed upon the statement recorded under section 313 cr.p.c. reference is also made to the cross-examination of pw13, asi nirmal singh to plead that an effort had been made to arrest the appellant by going to his village at ahrwan. reference was made to exhibit db which is the conviction slip in fir no.28 dated 09.06.1996 under section 307 and 449 ipc which was signed by sawinder singh, pw15 to show that the appellant was already in custody in the said fir and, therefore, he was wrongly implicated in the incident of 01.07.1996.8. state, on the other hand, submitted that the accused had a motive to kill the deceased since he was already declared a proclaimed offender for the murder of tej singh, nephew of the deceased and had thus, committed the offence in order to over-awe the persons who were prosecuting the case against him and also placed reliance upon the report of the chemical examiner, patiala (exhibit pr) and the report of the deputy director (ballistics), chandigarh under section 293 cr.p.c.9. from the perusal of the record, it would be clear that after the lodging of the fir, asi nirmal singh had gone to the spot and recovered 2 empties of assault rifle lying in two different places from the courtyard of the sailesh ranjan 2013.07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -7- deceased chitu singh. one of the said rounds contained number bearing 221.70 and the other bore number 301.70. similarly, two lead pieces were also recovered from the courtyard which were recovered and seizure memo was prepared and exhibited as pk & pl respectively. apart from these, blood stained twine of cot and the mattress was also taken into custody along with the blood stained earth and the site plan, exhibit po was drawn showing the place from where mohan singh had fired and where the deceased had fallen down and from where the eye-witnesses had witnessed the incident. the recoveries of the empties were also effected from mark 'f' and mark 'g' whereas the bullet pieces were recovered from mark 'h' & mark 'i'. the injuries suffered by the deceased which have been reproduced above were also in consonance with the oral deposition of the eye-witnesses since single shot had hit the deceased under the left lower eye lid and the exit wound was behind the right ear. the said eye- witnesses supported the case and had appeared as pw2 & pw3 and stood by the version which was earlier got recorded by them. admittedly, as per the version of the complainant, the accused-appellant was living in the gurudwara of the village as sewadar and had earlier murdered tej singh along with two other persons. the appellant was then identified in the court also, after initial hesitation, by surjit kaur since he was not in the box and was sitting on a bench. in cross-examination also, the complainant had specifically mentioned that she knew mohan singh and pargat singh but did not knot the third person who was staying in the gurudwara and had specifically mentioned that mohan singh was also known as pargat singh. similarly, gursewak singh had also specifically mentioned that accused, pargat singh had come to their house and fired the shot and then run away and earlier he was accused of murdering tej singh and was a proclaimed offender in that case. in the cross-examination, he explained that he had stated the name of assailant as pargat singh to the police and denied the sailesh ranjan 2013.07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -8- suggestion that he had done it at the instance of the police. there is no reason that the eye-witnesses who were closely related to the deceased would falsely implicate the appellant and let some other person, who had murdered their father, go scot-free. their presence at the spot at 10.15 p.m. on 01.07.1996 was natural and the fact that the statement was got recorded at 6.30 a.m. on 02.07.1996 by pw13, asi nirmal singh would show that there was no delay and there was thus, no occasion for the witnesses to name any other person except the present appellant.10. in the investigation, the said empties were got recovered and deposited with the malkhana which would be clear from the affidavit of hc karaj singh (exhibit pd). the said parcels, containing the empties and the lead pieces alongwith the blood stained mattress, twine of cot and the blood stained earth, were handed over to constable resham singh on 17.07.1996 for depositing the same in the fsl, chandigarh and chemical examiner, patiala respectively. there were some objections regarding the deposit of 2 bullets at fsl, chandigarh and he, thus, brought them back and re-deposited them alongwith the road receipts on 19.07.1996. after removing the objections, the 2 empties along with 2 bullets were again given to constable resham singh for depositing in fsl which was duly done on 22.07.1996 which would be clear from exhibit pc. thereafter, in pursuance of the arrest of the appellant on 25.07.1997, whereby the assault rifle bearing no.56-1-16072742 alongwith empty cartridges and live rounds, as recovered in fir no.36 dated 25.07.1996, were deposited. from the affidavit of constable resham singh (exhibit pg), it would be clear that the said parcels containing the empty rounds and bullets were returned after some objections on the docket and they were thereafter, deposited with fsl, chandigarh on 22.07.1996 and the case property remained duly sealed. similarly, from exhibit ph, which is the affidavit of constable jagdish singh, it sailesh ranjan 2013.07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -9- would be clear that the assault rifle, bearing the abovesaid number, duly sealed alongwith live rounds, which was taken into custody on 25.07.1996, was sent to the fsl, punjab chandigarh on 19.08.1996 and which was deposited on the said date. similar is the deposition of head constable gurtej singh. the chemical examiner's report (exhibit pr) reads as under: “report of chemical examiner of govt. punjab (admissible as evidence under section 293 of the code of criminal procedure) in case of fir no.34 dated 2.7.96 u/s 302/506/120b ipc 25/54/59a. act, p.s. gidderbaha 1. hereby certify that i received by c.resham singh no.2374, a packet from the senior supdt. of police of muktsar alleged to have been despatched by him on the 16th of july, 96 referred to in his office memo no.4914/c dated 16-7-96 and received by me on the 17th of july, 96.2. the packet consisted of a four sealed parcels was sealed with a seal bearing the impression on the invoice hereunto attached received by me with 2,2,2,2 seals ante and intact. the contents of the packet were as follows: i. earth etc. ii. sample of earth etc. iii gadela iv waan 3. the above seals were opened in my presence and the contents of the packet were duly examined by me and remained under my custody until examination ws completed. the poisons i was led to examine were:- the result was as follows:- blood was found on the exhibits not i & iv & pieces were sent to serologist govt. of india. stains as indicated on the sketches overleaf were found on the exhibit not iii & those marked “x”. were tested & found to be of blood & pieces therefrom were sent to serologist govt. of india. no blood was found on the exhibit not ii & it was sent as control. ex.pr no.1520 dated 12.8.96 sd/- sd/-chemical examiners officer chemical examiner to govt. sj dr.hardip singh mann sailesh ranjan 2013.07.31 10:17 14.9.2000 asstt. chemical examiner to govt. to patiala.”. i attest to the accuracy and integrity of this document cra no.736-db of 2001 -10- 11. as per the report of the chemical examiner reproduced above, it would be clear that presence of blood was there in the blood stained earth picked up from the spot and the mattress and the twine (waan). similarly, as per the report of the deputy director (ballistics), fsl, punjab, chandigarh, two empties of the assault rifle, picked up from the spot along with the two bullets were examined and it was found that the empties had been fired from 7.62 m.m. ak-47 rifle no.56-1-16072742 which had been recovered from the appellant on 25.07.1996. the relevant portion of the said report reads as under: “parcel 'a' contained: two, 7.62 x 39 mm cartridge cases marked c/1 & c/2 in the laboratory. xxxx xxxx xxxx parcel 'c' contained: two, 7.62 x 39 mm cartridge cases marked c/3 & c/4 in the laboratory. xxxx xxxx xxxx parcel 'e' contained: two jecketed bullets marked b/1 & b/2 in the laboratory. xxxx xxxx xxxx result of exmination 1 fourteen 7.62 x 39 mm cartridge cases marked c/1 to c/4, c/7, c/9 to c/12, c/14 to c/16, c/18 and c/19 contained in parcels 'a', 'c' and 'f' have been fired from 7.62 mm ak-47 rifle no.56-1-16072742. xxxx xxxx xxxx 4. no definite opinion can be given regarding firing of two jecketed bullets marked b/1, b/2 and one jecket of bullet marked j/1 from 7.62 mm ak-47-rifle no.56-1-16072742, due to lack of sufficient individual characteristic marks.”12. the said report is per se admissible under section 293 of the code of criminal procedure, 1973 being a report under the hand of a government scientific expert to whom the said section applies and the deputy director of a central forensic laboratory or a state forensic laboratory would be such experts whose report can be used as an evidence in the trial. the appellant could sailesh ranjan 2013.07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -11- have filed an application, summoned and examined the expert regarding the said report to discredit him and bring to the notice of the court that the said report was not correct. however, no such effort was made. a division bench of this court in state of punjab vs. balraj singh takhar 2003 (4) r.c.r. (criminal) 146, has held that report of government scientific expert designated under section 293(4) criminal procedure code is per se admissible in evidence and it would not be necessary to summon the experts to prove the said report. relevant portion of the judgment reads thus: “with respect, but regretfully, we are unable to adopt the view expressed by the learned single judge, in the case of nirmal (supra), as a proposition of law. various clauses of sub-section (4) of section 293 of the code illustratively state which of the reports are admissible in evidence by their mere tender and it may not be necessary or obligatory on the part of any of the authorities to summon the author of the report it court. unambiguously purpose behind the provisions of section 293 of the code is to avoid appearance of the experts before the court, provided they hold designated office in terms of section 293 of the code. the view expressed in nirmal's case (supra) appears to be somewhat in contradiction to the terms of provisions of section 293 of the code. the provisions provide that any document purporting to be a report under the hand of a government scientific expert to whom this section applies, may be used as evidence in any inquiry, trial or court proceedings. the report of such government scientific expert is per se admissible in evidence, provided the government scientific expert, who is author of the report and should be specifically designated as government scientific expert as enumerated under sub-section (4) of section 293 of the code. director, deputy director or assistant director of a central forensic science laboratory or a state forensic science laboratory is one of such designated experts whose report and analysis are admissible in evidence. in our opinion, it would not be necessary to summon the expert even to prove the said report. however, the power of the court to summon and sailesh ranjan examine the expert, if the court thinks it proper under sub- 2013.07.31 10:17 i attest to the accuracy and integrity of this document cra no.736-db of 2001 -12- section (2) of the section 293 of the code cannot be restricted. the discretion of the court would have to be exercised in consonance with the settled principles of law and keeping in view the facts and circumstances and subject matter of the report by the court. the purpose of provision of section 293 of the code appears to liberalise encumbersome procedure and strict submission and proof of the report submitted by the government scientific expert, as defined under the provisions of section 293 of the code. in our view, it may not be in consonance with the scheme of the amended provisions of section 293 of the code to require the report to be proved by production of the expert in court, which would otherwise be covered under the provisions of the said sections. the view expressed in nirmal's case (supra) appears to be neither in consonance with the provisions of section 293 of the code not in conformity with the law enunciated by the hon'ble apex court in state of maharashtra case (supra), upon correct application of the principle of ratio decidendi.”13. the accused was arrested on 25.07.1996 in fir no.36 under section 307 ipc and section 25 of the arms act when the said weapon was recovered from him and thereafter, he was formally arrested in the present fir on 26.07.1996. as per the report, the weapon which was recovered from him were used for firing the two empties which were recovered by asi nirmal singh on 02.07.1996 while visiting the spot of the incident. the said recovery, alongwith the report read with ocular version of the eye-witnesses would, thus, go on to show that it was only the appellant who was responsible for the murder of the deceased. the contention of the counsel for the appellant that the appellant was already in custody in fir no.28 dated 09.06.1996 under section 307, 449 read with section 34 ipc, as per exhibit db, which was signed by sawinder singh and that he was wrongly implicated in the present fir, is without any basis. sawinder singh has duly explained (exhibit db), when he was recalled as court witness on 13.06.2001 and submitted that the slip had been forged and the sailesh ranjan 2013.07.31 10:17 accused, in that case, was arrested on 01.08.1996 and not on 09.06.1996. it has i attest to the accuracy and integrity of this document cra no.736-db of 2001 -13- further been explained that the accused was firstly arrested in fir no.36 on 25.07.1996 and thereafter, arrest was shown in the present case in fir no.34 on 26.07.1996 and then his arrest was shown in fir no.28 dated 09.06.1996 on 01.08.1996. he further explained that exhibit db did not bear his signatures and he was never posted at police station gidderbaha on 09.06.1996. the appellant has also failed to produce any independent witness from the jail to prove that he was already in custody on 09.06.1996, as set up and the fact that if he had been in custody, it would have been proved by referring to any remand proceedings before the court to successfully demonstrate that he could not have been arrested on 26.07.1996. no such effort was made and, therefore, the submission that he was in custody on 09.06.1996, is without any basis.14. accordingly, keeping in view the above facts and circumstances, there is no substance in the present appeal and the same stands dismissed. (g.s.sandhawalia) judge 11 07.2013 (jasbir singh) sailesh judge sailesh ranjan 2013.07.31 10:17 i attest to the accuracy and integrity of this document
Judgment:

CRA No.736-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA No.736-DB of 2001 Date of decision:11.07.2013 Pargat Singh @ Fagga @ Mohan Singh .....Appellant Versus State of Punjab ......Respondents CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MR.JUSTICE G.S.SANDHAWALIA Present: Mr.P.S.Hundal, Sr.Advocate with Mr.B.S.Jatana, Advocate, for the appellant. Mrs.Ritu Punj, Addl.A.G, Punjab. ***** G.S.Sandhawalia J.

1. The present appeal has been preferred against the judgment of the Sessions Judge, Faridkot dated 04.08.2001 whereby the appellant was convicted under Section 302 of the Indian Penal Code for committing the murder of Chitu Singh and sentenced to undergo imprisonment for life and pay a fine of `5000/- and in default of payment of fine, to further undergo imprisonment for 6 months in FIR No.34 dated 02.07.1996 under Sections 120B/302 of the IPC registered at Police Station Gidderbaha.

2. The FIR in question was lodged on the statement (Exhibit PC) of Surjit Kaur, wife of the deceased, Chitu Singh, resident of Village Gurusar. In the said statement, which was recorded at 6.30 a.m. on 02.07.1996 by ASI Nirmal Singh (PW13), it was stated that Ranjodh Singh, Gurlal Singh and Mohan Singh, who were living in the Gurudwara of the village, had committed murder of the complainant's nephew, Tej Singh of the same village. Out of the 3 persons, Mohan Singh was still absconding whereas Ranjodh Singh and Gurlal Singh were in jail and the case was pending in the Court and the deceased was pursuing Sailesh Ranjan the said case. One Kartar Singh, a month and a half from the date of occurrence, 2013.07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -2- told the deceased in the presence of his wife that he should compromise the matter with Ranjodh Singh otherwise he would have to face its consequences. The accused had come to the house on 01.07.1996 at 10.15 p.m. and called out for the deceased in the presence of Gursewak Singh, his son, Katto, daughter and the complainant. He was carrying a rifle and asked the deceased to compromise in the murder case who had replied that he would consult his nephews on which Mohan Singh had opened fire with the rifle which hit the deceased on his face and he then fired another shot in the air. Due to the alarm raised by them, he went away. The complainant along with her son and daughter remained at the spot in the night out of fear and in the morning, the complainant accompanied by Bhola Singh, member Panchayat went to the police station and met the police party on the way and got her statement recorded. Accordingly, on the basis of the said statement, FIR was lodged at 6.50 a.m. on 02.07.1996 (Exhibit PC/1) which was received by the JMIC at 1.20 p.m. on 02.07.1996. The FIR reads as under: “Statement of Surjit Kaur w/o Chitu Singh, Caste Mazbi Sikh, r/o Gurusar, aged about 60 years. Stated that I am a resident of V. Gurusar and do labour work. I have three sons and seven daughters. About 1 ½ years ago from today, Ranjodh Singh, Gurdial Singh s/o Hazura Singh r/o V.Nathu Pura P.S. Gharinda and Mohan Singh r/o Ahrwan who were living in the Gurdawara of our village had committed murdered our nephew Tej Singh s/o Kaka Singh, Mazbi Sikh r/o Gurusar. Ranjodh Singh and Gurlal Singh are in the jail in the said case. Mohan Singh is still absconding. The said case is still pending in the court. My husband Chitu Singh was pursuing the said case. About 1 ½ months ago from today, Kartar Singh s/o Darbara Singh, Jat, r/o Gurusar had come in our house and in my presence he told my husband that they should compromise with Ranjodh Singh etc., failing which they will have to face the consequences. Today at about 10.15 P.M. my husband Chitu Singh was sitting on the cot, in the vacant site outside our house. I, my son Gursewak Singh and daughter Katto Sailesh Ranjan 2013.07.31 10:17 were sitting near him on the other cot and we were talking. I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -3- The electric lamp was on in our courtyard. A person called my husband by his name saying that Chitu Singh, are you in the house. My husband asked as to who was there. Then the said person came near the cot of my husband. We identified him in the light of electric lamp. He was Mohan Singh of V. Ahrwan. He was having a two feet long rifle in his right hand. Immediately after his arrival there he asked my husband whether he would compromise the murder case or not. Upon which my husband replied that he would answer after consulting his nephews. Then Mohan Singh fired at my husband with the rifle carried by him in his hand which hit him on his face. On our raising noise 'Killed-Killed' he fired another shot in the air and went away from the spot with his rifle. On hearing our noise, neighbourers also came there. I saw my husband, he had died as a result of fire shot. There being dark and out of fear, we remained at our house. not after leaving my daughter Katto and son Gursewak Singh at the spot to guard the deadbody, I accompanied by Bhola Singh Member Panchayat was going to the police station for lodging the report. You have met. Action be taken, RTI Surjit Kaur abovesaid, Attested Sd/- Nirmal Singh ASI, 2.7.96.”

3. Nirmal Singh, ASI prepared the inquest report (Exhibit PJ.on the identification of Buta Singh, the brother of the deceased and Natha Singh and sent the dead both to Civil Hospital, Gidderbaha. On inspection of the place of occurrence, he lifted 2 empties of assault rifle (Exhibit P1 & P2) and the same were made into a parcel and taken into prossession vide seizure memo (Exhibit PK) from 2 different places of the courtyard of the house of Chitu Singh which was attested by Gurjant Singh and Amar Chand. Two bullets were also recovered from the courtyard and the same were also made parcel and taken into possession vide memo (Exhibit PL). Blood stained mattress (gadela) and blood stained portion of twine (vaan) of the cot were made into a parcel and taken into possession vide memo (Exhibit PM) along with the blood stained earth (Exhibit PN) and rough site plan was prepared (Exhibit PO). On return to the police Sailesh Ranjan station, he deposited the same with HC Karaj Singh. Thereafter, on 12.07.1996, 2013.07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -4- Ranjodh Singh, one of the accused, who died during trial, was arrested and on 05.08.1996, SHO Sawinder Singh (PW15), PS Gidderbaha arrested another accused, Bhupa Singh (who not stands acquitted). The appellant was arrested on 25.07.1997 by the police party comprising Sawinder Singh, ASI Nirmal Singh, HC Ramesh Kumar, HC Amar Chand and another police party headed by SHO Ranjit Singh, PS Kotbhai alongwith other police officials under the supervision of Baljit Singh, DSP, at 9 p.m. in an encounter in which firing had taken place. A separate FIR was registered under Section 307 IPC in which, one assault rifle along with 40 cartridges were recovered and were taken into possession in FIR No.36 dated 25.07.1996 under Section 307 IPC and 25 of the Arms Act at PS Giddarbaha and formal arrest of the appellant in the present FIR thus, took place on 26.07.1996.

4. As per Exhibit PA, the postmortem report, 2 injuries were found on the face of the deceased which was proved by Dr.A.K.Bansal, District Health Officer, Muktsar who conducted the postmortem on 02.07.1996. The said injuries are reproduced as under:

“1. Lacerated wound 0.9 x 0.5 cm with inverted and contused edges present on the left cheek 2 cms below the left lower eye lid and 2 cms from the left side of nose. On dissection wound extends through the cavity of maxilla into the middle crainial fossa of right side involving the foremen megnum and further extends causing communicated fracture of right side of mendible and further communicates with the exit would on the right side of neck.

2. Exit wound of right side of neck is 5 cms x 4 cms with irregular margins and was present 1 cm below and behind the right ear pinna. Many fragments of bone were present in the wound. Bone of skull and face show communated fractures and brain stem shows extensive lacerated wound congulated blood was present in the wound. The wound were antem-oxtem in nature. Bladder was empty, otherwise healthy. Large intestine contains fical matter, otherwise Sailesh Ranjan healthy. Stomach contained semi digested food abou”

2013. 07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -5- ones, otherwise healthy, right side of heart contained blood, left side empty. All other organs were healthy.”

5. As per the opinion of the doctor, the death was due to shock and haemorrhage as a result of fire arm injury which was sufficient to cause death in the ordinary course of nature.

6. The statements of the eye-witnesses including Surjit Kaur who supported the initial statement recorded by her on the basis of which FIR was lodged and who identified the accused on 08.01.1998 in Court were recorded. Similar was the statement of Gursewak Singh, son of the deceased. On the basis of the said statements, the conviction, as noticed above, was recorded by the Sessions Judge, Faridkot who acquitted Bhupa Singh on the ground that there was no evidence to show that Bhupa Singh, Ranjodh Singh and Pargat Singh had ever entered into a conspiracy for committing the murder of the deceased. The contention of the counsel for the appellant that there was delay in lodging of the FIR was rejected on ground that there was fear in the mind of the complainant, as the accused was a proclaimed offender in the earlier case, wherein he had killed the nephew of the deceased, Tej Singh. It was concluded that the FIR was lodged on time since the complainant would have left the house early in the morning at 4 a.m. and it stood recorded by 6.30 a.m. Motive was held to be proved since, Karam Singh, Asstt. Superintendent of District Jail, Faridkot (PW6) was produced to show that accused Ranjodh Singh was confined in FIR No.3 dated 01.01.1995 at Police Station Gidderbaha under Sections 302, 201 & 511 read with Section 34 of the IPC for the murder of Tej Singh. The submission that accused and the deceased had taken meals 1 ½ hours prior and as per medical evidence, meals had been taken 4 to 6 hours prior, also did not cut much ice with the trial Court. It was held that it was not a case of disputed identity and the accused could have been identified by the bulb which was lighting the courtyard. Sailesh Ranjan The presence of the 2 witnesses was held to be natural since the incident took 2013.07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -6- place in the house of the deceased and the medical evidence was in consonance with the ocular version. Similarly, the plea that the accused was already in custody since 09.06.1996 in FIR No.28 of the same date, was rejected as was the issue regarding the accused being known as Pargat Singh. Accordingly, conviction was recorded.

7. Counsel for the appellant has mainly stressed on the issue that as per the FIR, it was mentioned that Mohan Singh was resident of Ahrwan whereas the appellant, Pargat Singh was resident of Sanghna, District Amritsar and was not known to the complainant and was not properly identified and it was a case of a mistaken identity and reliance has been placed upon the statement recorded under Section 313 Cr.P.C. Reference is also made to the cross-examination of PW13, ASI Nirmal Singh to plead that an effort had been made to arrest the appellant by going to his village at Ahrwan. Reference was made to Exhibit DB which is the conviction slip in FIR No.28 dated 09.06.1996 under Section 307 and 449 IPC which was signed by Sawinder Singh, PW15 to show that the appellant was already in custody in the said FIR and, therefore, he was wrongly implicated in the incident of 01.07.1996.

8. State, on the other hand, submitted that the accused had a motive to kill the deceased since he was already declared a proclaimed offender for the murder of Tej Singh, nephew of the deceased and had thus, committed the offence in order to over-awe the persons who were prosecuting the case against him and also placed reliance upon the report of the Chemical Examiner, Patiala (Exhibit PR) and the report of the Deputy Director (Ballistics), Chandigarh under Section 293 Cr.P.C.

9. From the perusal of the record, it would be clear that after the lodging of the FIR, ASI Nirmal Singh had gone to the spot and recovered 2 empties of assault rifle lying in two different places from the courtyard of the Sailesh Ranjan 2013.07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -7- deceased Chitu Singh. One of the said rounds contained number bearing 221.70 and the other bore number 301.70. Similarly, two lead pieces were also recovered from the courtyard which were recovered and seizure memo was prepared and exhibited as PK & PL respectively. Apart from these, blood stained twine of cot and the mattress was also taken into custody along with the blood stained earth and the site plan, Exhibit PO was drawn showing the place from where Mohan Singh had fired and where the deceased had fallen down and from where the eye-witnesses had witnessed the incident. The recoveries of the empties were also effected from Mark 'F' and Mark 'G' whereas the bullet pieces were recovered from Mark 'H' & Mark 'I'. The injuries suffered by the deceased which have been reproduced above were also in consonance with the oral deposition of the eye-witnesses since single shot had hit the deceased under the left lower eye lid and the exit wound was behind the right ear. The said eye- witnesses supported the case and had appeared as PW2 & PW3 and stood by the version which was earlier got recorded by them. Admittedly, as per the version of the complainant, the accused-appellant was living in the Gurudwara of the village as sewadar and had earlier murdered Tej Singh along with two other persons. The appellant was then identified in the Court also, after initial hesitation, by Surjit Kaur since he was not in the box and was sitting on a bench. In cross-examination also, the complainant had specifically mentioned that she knew Mohan Singh and Pargat Singh but did not knot the third person who was staying in the Gurudwara and had specifically mentioned that Mohan Singh was also known as Pargat Singh. Similarly, Gursewak Singh had also specifically mentioned that accused, Pargat Singh had come to their house and fired the shot and then run away and earlier he was accused of murdering Tej Singh and was a proclaimed offender in that case. In the cross-examination, he explained that he had stated the name of assailant as Pargat Singh to the police and denied the Sailesh Ranjan 2013.07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -8- suggestion that he had done it at the instance of the police. There is no reason that the eye-witnesses who were closely related to the deceased would falsely implicate the appellant and let some other person, who had murdered their father, go scot-free. Their presence at the spot at 10.15 p.m. on 01.07.1996 was natural and the fact that the statement was got recorded at 6.30 a.m. on 02.07.1996 by PW13, ASI Nirmal Singh would show that there was no delay and there was thus, no occasion for the witnesses to name any other person except the present appellant.

10. In the investigation, the said empties were got recovered and deposited with the malkhana which would be clear from the affidavit of HC Karaj Singh (Exhibit PD). The said parcels, containing the empties and the lead pieces alongwith the blood stained mattress, twine of cot and the blood stained earth, were handed over to Constable Resham Singh on 17.07.1996 for depositing the same in the FSL, Chandigarh and Chemical Examiner, Patiala respectively. There were some objections regarding the deposit of 2 bullets at FSL, Chandigarh and he, thus, brought them back and re-deposited them alongwith the road receipts on 19.07.1996. After removing the objections, the 2 empties along with 2 bullets were again given to Constable Resham Singh for depositing in FSL which was duly done on 22.07.1996 which would be clear from Exhibit PC. Thereafter, in pursuance of the arrest of the appellant on 25.07.1997, whereby the assault rifle bearing No.56-1-16072742 alongwith empty cartridges and live rounds, as recovered in FIR No.36 dated 25.07.1996, were deposited. From the affidavit of Constable Resham Singh (Exhibit PG), it would be clear that the said parcels containing the empty rounds and bullets were returned after some objections on the docket and they were thereafter, deposited with FSL, Chandigarh on 22.07.1996 and the case property remained duly sealed. Similarly, from exhibit PH, which is the affidavit of Constable Jagdish Singh, it Sailesh Ranjan 2013.07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -9- would be clear that the assault rifle, bearing the abovesaid number, duly sealed alongwith live rounds, which was taken into custody on 25.07.1996, was sent to the FSL, Punjab Chandigarh on 19.08.1996 and which was deposited on the said date. Similar is the deposition of Head Constable Gurtej Singh. The Chemical Examiner's report (Exhibit PR) reads as under: “Report of Chemical Examiner of Govt. Punjab (Admissible as evidence under section 293 of the Code of Criminal Procedure) In case of FIR No.34 dated 2.7.96 U/s 302/506/120B IPC 25/54/59A. Act, P.S. Gidderbaha 1. HEREBY CERTIFY THAT I received by C.Resham Singh No.2374, a packet from the Senior Supdt. Of Police of Muktsar alleged to have been despatched by him on the 16th of July, 96 referred to in his office memo No.4914/C dated 16-7-96 and received by me on the 17th of July, 96.

2. The packet consisted of a four sealed parcels was sealed with a seal bearing the impression on the invoice hereunto attached received by me with 2,2,2,2 seals ante and intact. The contents of the packet were as follows: I. Earth etc. II. Sample of earth etc. III Gadela IV Waan 3. The above seals were opened in my presence and the contents of the packet were duly examined by me and remained under my custody until examination ws completed. The poisons I was led to examine were:- The result was as follows:- Blood was found on the exhibits not I & IV & pieces were sent to Serologist Govt. of India. Stains as indicated on the sketches overleaf were found on the exhibit not III & those marked “X”. were tested & found to be of blood & pieces therefrom were sent to serologist Govt. of India. No blood was found on the exhibit not II & it was sent as control. Ex.PR No.1520 dated 12.8.96 Sd/- Sd/-Chemical Examiners officer Chemical Examiner to Govt. SJ Dr.Hardip Singh Mann Sailesh Ranjan 2013.07.31 10:17 14.9.2000 Asstt. Chemical Examiner to Govt. to Patiala.”

. I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -10- 11. As per the report of the Chemical Examiner reproduced above, it would be clear that presence of blood was there in the blood stained earth picked up from the spot and the mattress and the twine (waan). Similarly, as per the report of the Deputy Director (Ballistics), FSL, Punjab, Chandigarh, two empties of the assault rifle, picked up from the spot along with the two bullets were examined and it was found that the empties had been fired from 7.62 m.m. AK-47 rifle No.56-1-16072742 which had been recovered from the appellant on 25.07.1996. The relevant portion of the said report reads as under: “Parcel 'A' contained: Two, 7.62 x 39 mm cartridge cases marked C/1 & C/2 in the laboratory. xxxx xxxx xxxx Parcel 'C' contained: Two, 7.62 x 39 mm cartridge cases marked C/3 & C/4 in the laboratory. xxxx xxxx xxxx Parcel 'E' contained: Two jecketed bullets marked B/1 & B/2 in the laboratory. xxxx xxxx xxxx RESULT OF EXMINATION 1 Fourteen 7.62 x 39 mm cartridge cases marked C/1 to C/4, C/7, C/9 to C/12, C/14 to C/16, C/18 and C/19 contained in parcels 'A', 'C' and 'F' have been fired from 7.62 mm AK-47 rifle No.56-1-16072742. xxxx xxxx xxxx 4. No definite opinion can be given regarding firing of two jecketed bullets marked B/1, B/2 and one jecket of bullet marked J/1 from 7.62 mm AK-47-rifle No.56-1-16072742, due to lack of sufficient individual characteristic marks.”

12. The said report is per se admissible under Section 293 of the Code of Criminal Procedure, 1973 being a report under the hand of a Government scientific expert to whom the said section applies and the Deputy Director of a Central Forensic Laboratory or a State Forensic Laboratory would be such experts whose report can be used as an evidence in the trial. The appellant could Sailesh Ranjan 2013.07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -11- have filed an application, summoned and examined the expert regarding the said report to discredit him and bring to the notice of the Court that the said report was not correct. However, no such effort was made. A Division Bench of this Court in State of Punjab Vs. Balraj Singh Takhar 2003 (4) R.C.R. (Criminal) 146, has held that report of Government Scientific Expert designated under Section 293(4) Criminal Procedure Code is per se admissible in evidence and it would not be necessary to summon the experts to prove the said report. Relevant portion of the judgment reads thus: “With respect, but regretfully, we are unable to adopt the view expressed by the learned Single Judge, in the case of Nirmal (supra), as a proposition of law. Various Clauses of sub-section (4) of Section 293 of the Code illustratively state which of the reports are admissible in evidence by their mere tender and it may not be necessary or obligatory on the part of any of the authorities to summon the author of the report it Court. Unambiguously purpose behind the provisions of Section 293 of the Code is to avoid appearance of the experts before the Court, provided they hold designated office in terms of section 293 of the Code. The view expressed in Nirmal's case (supra) appears to be somewhat in contradiction to the terms of provisions of Section 293 of the Code. The provisions provide that any document purporting to be a report under the hand of a Government Scientific expert to whom this section applies, may be used as evidence in any inquiry, trial or Court proceedings. The report of such Government Scientific Expert is per se admissible in evidence, provided the Government Scientific Expert, who is author of the report and should be specifically designated as Government Scientific Expert as enumerated under sub-section (4) of Section 293 of the Code. Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory is one of such designated experts whose report and analysis are admissible in evidence. In our opinion, it would not be necessary to summon the expert even to prove the said report. However, the power of the Court to summon and Sailesh Ranjan examine the expert, if the Court thinks it proper under sub- 2013.07.31 10:17 I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -12- section (2) of the Section 293 of the Code cannot be restricted. The discretion of the Court would have to be exercised in consonance with the settled principles of law and keeping in view the facts and circumstances and subject matter of the report by the Court. The purpose of provision of Section 293 of the Code appears to liberalise encumbersome procedure and strict submission and proof of the report submitted by the Government Scientific Expert, as defined under the provisions of Section 293 of the Code. In our view, it may not be in consonance with the scheme of the amended provisions of Section 293 of the Code to require the report to be proved by production of the expert in Court, which would otherwise be covered under the provisions of the said sections. The view expressed in Nirmal's case (supra) appears to be neither in consonance with the provisions of section 293 of the Code not in conformity with the law enunciated by the Hon'ble Apex Court in State of Maharashtra case (supra), upon correct application of the principle of ratio decidendi.”

13. The accused was arrested on 25.07.1996 in FIR No.36 under Section 307 IPC and Section 25 of the Arms Act when the said weapon was recovered from him and thereafter, he was formally arrested in the present FIR on 26.07.1996. As per the report, the weapon which was recovered from him were used for firing the two empties which were recovered by ASI Nirmal Singh on 02.07.1996 while visiting the spot of the incident. The said recovery, alongwith the report read with ocular version of the eye-witnesses would, thus, go on to show that it was only the appellant who was responsible for the murder of the deceased. The contention of the counsel for the appellant that the appellant was already in custody in FIR No.28 dated 09.06.1996 under Section 307, 449 read with Section 34 IPC, as per Exhibit DB, which was signed by Sawinder Singh and that he was wrongly implicated in the present FIR, is without any basis. Sawinder Singh has duly explained (Exhibit DB), when he was recalled as Court witness on 13.06.2001 and submitted that the slip had been forged and the Sailesh Ranjan 2013.07.31 10:17 accused, in that case, was arrested on 01.08.1996 and not on 09.06.1996. It has I attest to the accuracy and integrity of this document CRA No.736-DB of 2001 -13- further been explained that the accused was firstly arrested in FIR No.36 on 25.07.1996 and thereafter, arrest was shown in the present case in FIR No.34 on 26.07.1996 and then his arrest was shown in FIR No.28 dated 09.06.1996 on 01.08.1996. He further explained that Exhibit DB did not bear his signatures and he was never posted at Police Station Gidderbaha on 09.06.1996. The appellant has also failed to produce any independent witness from the jail to prove that he was already in custody on 09.06.1996, as set up and the fact that if he had been in custody, it would have been proved by referring to any remand proceedings before the Court to successfully demonstrate that he could not have been arrested on 26.07.1996. No such effort was made and, therefore, the submission that he was in custody on 09.06.1996, is without any basis.

14. Accordingly, keeping in view the above facts and circumstances, there is no substance in the present appeal and the same stands dismissed. (G.S.SANDHAWALIA) JUDGE 11 07.2013 (JASBIR SINGH) sailesh JUDGE Sailesh Ranjan 2013.07.31 10:17 I attest to the accuracy and integrity of this document