Jaswinder Singh vs State Of Punjab

Jaswinder Singh .... Appellant

Versus

State of Punjab .... Respondent

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal is filed by the appellant who stands convicted by the Court of

Addl. Sessions Judge (Ad hoc), Hoshiarpur, Punjab under Section 302

read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as

`the IPC') and also under Section 307 IPC which is affirmed by the High

Court of Punjab and Haryana and aggrieved by which the present appeal is

filed in this Court.

2. Briefly stated the prosecution case is that a criminal case was registered on

the basis of the statement of Jasprit Singh, the complainant and PW-1, who

stated in his report that he was residing in village Parowal for the last 12 years in the house of Joginder Singh and on 17.01.2001 at about 7.00 p.m.

when he was sitting with his landlord's son Jasbir Singh alias Tota and

watching television while sitting on a double bed in the room, somebody

from outside called Tota whereupon the complainant opened the door and

found two young persons standing outside. Both of them enquired about

Jasbir Singh alias Tota upon which the complainant took them inside

where Tota was sitting. Then Jasbir Singh alias Tota asked the

complainant to bring tea for those persons and the complainant went inside

the house to tell the mother of Jasbir Singh alias Tota to prepare tea. In the

meantime he heard gun shot fire from the room and hearing the shot he

immediately went to that room. On entering the room he saw the young

man firing shots on the head of Tota and the other young man saying that

Tota should not be left alive. The complainant alleged that he caught hold

of the young man who fired at Tota and then the other young man, who

was wearing a `Patka', told the complainant pointing pistol towards him

that he would also be killed along with Tota and then he fired the shot

which hit the complainant on the finger of his left hand and left ankle as

the complainant had caught the hand of that man in which he was holding

the pistol. Upon complainant raising the alarm Joginder Singh, the father

of Jasbir Singh alias Tota, the deceased namely and Shiv Charan Singh,

2 the father of Jasprit Singh, the complainant reached there. The man

wearing patka ran away from the spot while firing shots and the other

young man who also tried to run away was overpowered and the pistol was

snatched away from his hand. The said young man was identified later as

Charanjit Singh and the other young man with a patka accompanying

Charanjit Singh was identified as Jaswinder Singh. In the meantime,

Jasbir Singh alias Tota fell on the bed and number of villagers collected

there. He was taken to the Civil Hospital, Garhshankar along with

complainant where he succumbed to the injuries whereas complainant was

medically examined. Sub-Inspector Gian Chand came to the hospital and

recorded the statement of complainant on the basis of which the criminal

case was registered.

3. During the course of investigation Sub-Inspector Gian Chand took into

possession the pistol and the licence of Charanjit Singh, the accused. He

visited the place of incident on 18.01.2001, prepared a rough site plan and

recorded the statements of the witnesses. He took into possession three

empty cartridges, two led bullets of the cartridges, bloodstained bed sheet

from the spot along with cap and a scooter bearing Registration No. PI Q-

68. He also prepared inquest report on the dead body of Jasbir Singh alias

3 Tota, the deceased. The post-mortem examination was conducted by the

doctor.

4. On completion of the investigation he submitted charge-sheet against

Charanjit Singh, Jaswinder Singh, Balbir Singh, Avtar Singh and Amarjit

Singh. It transpired that Balbir Singh, Avtar Singh and Amarjit Singh had

conspired with Jaswinder Singh and Charanjit Singh to commit the murder

of Jasbir Singh as he was instrumental in arranging the love marriage of

daughter of Balbir Singh.

5. According to the prosecution, Balbir Singh had hired the contract killers

for eliminating Jasbir Singh alias Tota for arranging marriage of his

daughter with one Jugraj Singh because Balbir Singh did not want his

daughter to marry that man. The police could, however, arrest only

Charanjit Singh, Jaswinder Singh and Balbir Singh initially. Therefore,

Charanjit Singh, Jaswinder Singh and Balbir Singh were challaned and

Avtar Singh and Amarjit Singh were declared as proclaimed offenders.

Later on Amarjit Singh was also arrested and his supplementary challan

was presented and committed to the court. Those four accused persons

4 namely Charanjit Singh, Jaswinder Singh, Balbir Singh and Amarjit Singh

were, therefore, tried whereas Avtar Singh was still a proclaimed offender.

6. After submission of the charge-sheet, charges were framed under Section

120-B, 302/34, 307/34, 449 IPC and under Section 27 of the Arms Act.

When the charges were read over and explained to the accused they

pleaded not guilty and claimed to be tried.

7. During the course of trial the prosecution examined as many as 11

witnesses and at the end of their deposition the accused persons were

examined under Section 313 of the Criminal Procedure Code, 1973 (for

short `the CrPC'). The defence examined the witness Satnam Singh as

DW-1. The trial court, namely the Court of the Addl. Sessions Judge (Ad

hoc), Hoshiarpur, Punjab, after hearing the arguments of the counsel

appearing for the parties and on examination of the entire records

including the depositions and all the statements found accused Charanjit

Singh, Jaswinder Singh and Balbir Singh guilty and convicted and

sentenced them by its judgment and order dated 18.09.2003.

8. Balbir Singh was found guilty under Section 120-B read with Section 302

IPC and sentenced to undergo life imprisonment and to pay a fine of

Rs. 1000/- and in default of payment of fine to further undergo rigorous

5 imprisonment for one month. Charanjit Singh was found guilty under

Section 302 and 307/34 IPC and sentenced to undergo life imprisonment

and to pay a fine of Rs. 1000/- and in default of payment of fine to further

undergo rigorous imprisonment for one month for offence under Section

302 and to undergo rigorous imprisonment for five years and to pay a fine

of Rs. 1000/- and in default of payment of fine to further undergo rigorous

imprisonment for one month for offence under Section 307/34 IPC.

Jaswinder Singh was found guilty under Section 302/34 and 307 IPC and

sentence to undergo life imprisonment and to pay a fine of Rs. 1000/- and

in default of payment of fine to further undergo rigorous imprisonment for

one month for offence under Section 302/34 IPC and to undergo rigorous

imprisonment for five years and to pay a fine of Rs. 1000/- and in default

of payment of fine to further undergo rigorous imprisonment for one

month for offence under Section 307 IPC.

9. The trial court also found both Charanjit Singh and Jaswinder Singh guilty

under Section 449 IPC and under Sections 27/54/59 of Arms Act and

sentenced each of them to undergo rigorous imprisonment for five years

and to pay a fine of Rs. 1000/- each and in default of payment of fine to

further undergo rigorous imprisonment for one month for offence under

Section 449 IPC and to undergo rigorous imprisonment for three years

6 each and to pay a fine of Rs. 500/- each and in default of payment of fine

to further undergo rigorous imprisonment for 15 days each.

10.All the aforesaid substantive sentences were, however, ordered to run

concurrently. Amarjit Singh was, however, given benefit of doubt and he

was acquitted of all the charges leveled against him.

11.Being aggrieved by the aforesaid judgment and order of conviction and

sentence accused Balbir Singh, Charanjit Singh and Jaswinder Singh have

filed three separate appeals in the High Court of Punjab and Haryana. The

said appeals were entertained and disposed of by a common order dated

23.09.2005 passed by the High Court.

12.After hearing the counsel appearing for the parties, the appeals filed by

accused Charanjit Singh and Jaswinder Singh were dismissed thereby

upholding the order of conviction and sentence passed against them by the

trial court. So far accused Balbir Singh is concerned, his participation in

the commission of crime was held to be highly doubtful and so was his

conviction under Section 120-B IPC. Consequently, the impugned

judgment and order of conviction and sentence passed against him was set

aside and he was acquitted of all the charges framed against him.

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13.During the course of hearing learned counsel appearing for the parties

submitted before us that to their information Charanjit Singh has not filed

any appeal and only accused Jaswinder Singh has filed the present appeal.

14.We heard the learned counsel appearing for the parties and have also gone

through the entire records.

15.It was very forcefully argued before us by Ms. Anu Mehta, learned

counsel appearing for the appellant that the appellant was neither named in

the first information report nor any specific role and description of his

participation had been given therein and that he was arrested from his

house only on 10.02.2001, i.e. about after 25 days of the date of incident.

It was submitted that the appellant was arrested only on suspicion and

without there being any material or specific evidence against him and that

the entire prosecution case against him is a got up story and therefore he

was liable to be acquitted of all the charges. She also submitted that the

Test Identification Parade (for short `the TIP') was not held because the

appellant was shown to the prosecution witnesses before any TIP could be

held and consequently there was no justification for holding a TIP and in

absence of the same both the courts below should have held that the

identity of the accused was not established in the trial. Counsel appearing

8 for the appellant also had taken us through the evidence on record and on

the basis thereof she submitted that so far the appellant is concerned, there

are a number of contradictions in the prosecution case and, therefore, he is

required to be acquitted. It was also submitted that the role ascribed to the

appellant in the incident was highly improbable and unreliable in as much

as while holding Jasbir Singh alias Tota, the deceased as alleged by the

prosecution, the appellant was using both his hands and, therefore, he

could not have brought out his pistol and fired from the said pistol on the

injured witness, P.W.1.

16.Counsel appearing for the respondent-State, however, refuted all the

aforesaid submissions contending inter alia that the identity of both the

accused persons namely Charanjit Singh and Jaswinder Singh, the sole

appellant herein were clearly established in trial. He heavily relied on the

evidence of Jasprit Singh, PW-1, the injured eye-witness and also on

medical evidence to substantiate that the appellant is guilty of the charges

framed against him.

17.On a careful analysis of the facts and circumstances of the present case we

find that Jasprit Singh, PW-1 as also the complainant, is the person who

opened the door so as to enable both the accused persons namely Charanjit

9 Singh and Jaswinder Singh to enter the house of Joginder Singh at the time

when the incident took place. He himself took both of them to the room

where Jasbir Singh alias Tota, the deceased was watching television with

the complainant just before the occurrence. He also categorically stated in

his statement that he had seen Charanjit Singh firing a shot with his pistol

on the head of Jasbir Singh alias Tota, the deceased while the other young

man wearing a patka was catching hold of the deceased and saying that he

(the deceased) should not be spared that day. On seeing that situation

Jasprit Singh, the complainant caught hold of Charanjit Singh and at that

stage Jaswinder Singh, the present appellant who was wearing a patka took

out a pistol from the fold of his trouser and fired at Jasprit Singh, the

complainant. It has also come in evidence that when the present appellant

was about to fire his pistol the complainant pulled his pistol downward and

as such fire shot from his pistol had hit at the finger of his left hand and

left foot near his ankle. In the meantime, on hearing a noise raised by the

complainant, Joginder Singh, the father of Jasbir Singh alias Tota, the

deceased and Shiv Charan Singh, the father of Jasprit Singh, the

complainant immediately came to the spot from inside the house and on

their arrival Charanjit Singh and Jaswinder Singh, the present appellant

tried to run away from there. While fleeing away, the present appellant

10 fired shots from his pistol but the other accused person was overpowered

and given beatings with fists and his pistol was also snatched. The nabbed

accused person came to be identified as Charanjit Singh. The driving

license of Charanjit Singh was with him which was recovered and which

gave his complete identity. In the meantime, Jasbir Singh alias Tota, the

deceased fell down on the bed and blood started oozing out from his head.

Jasprit Singh, the complainant was also bleeding from his left finger and

ankle. The deceased was taken to the hospital along with Jasprit Singh,

the complainant. Jasbir Singh, the deceased died on way to the hospital

and accordingly his post-mortem was conducted in the hospital whereas

Jasprit Singh, the complainant was medically examined and treated by the

doctor of the hospital.

18.We have a solitary eye-witness namely Jasprit Singh, the complainant as

well as PW-1, who was present in the room where the incident had taken

place. All along he was sitting with Jasbir Singh alias Tota, the deceased

and watching television. He opened the door for both the accused persons

to enable them to come inside the house, took both of them to the room

where Jasbir Singh alias Tota, the deceased was sitting. He saw Charanjit

Singh firing upon the deceased and also grappled with him whereupon he

was fired upon by the co-accused namely Jaswinder Singh (the appellant

11 herein), who however, managed to flee away after the occurrence by firing

from his pistol. The evidence of the solitary eye-witness is also supported

by the medical evidence and, therefore, there is no reason as to why such

evidence should not be held to be trustworthy and reliable. Jasprit Singh

(PW-1) is the lone eye-witness of the crime who had seen the actual

occurrence of the incident. He vividly described the whole occurrence that

has occurred inside the room. The said evidence on record, according to

us, inspires confidence in the facts and circumstances of the present case.

19.A very strong argument was made before us by the defence in respect of

the identity of the appellant particularly on the ground that he was shown

to the witness before any TIP could be held. On going through the records

we find that the accused-appellant has refused to take part in the TIP

taking up the plea that he was already shown to Jasprit Singh, PW-1 by the

police. We cannot accept the aforesaid plea taken by the accused-

appellant for the simple reason that PW-1 had occasion to see the appellant

not only when he opened the door but also when he took both of them to

the room where Jasbir Singh alias Tota, the deceased was watching the

television. Moreover, he grappled with both of them. He himself received

gun shot injuries in his hand as also on leg from the gun fired by the

appellant. He described the whole incident in his deposition as to how he

12 received those injuries. He had seen the appellant accused from close

quarter and also for a reasonable time. He has also identified the accused-

appellant in the court as the person who had fired upon him. His evidence

is corroborated by the medical evidence of the doctor who examined him.

Therefore, there could be no dispute with regard to the identity of the

accused - appellant.

20.On reading the evidence of the aforesaid eye-witness namely Jasprit Singh

(PW-1) we find the same to be convincing, reliable and trustworthy. We

find no reason to disbelieve the aforesaid statement of PW-1 and

consequently, we find no merit in this appeal, which is dismissed

accordingly.

..........................................J. [Dr. Mukundakam Sharma]

.......................................J. [Dr. B.S. Chauhan]

New Delhi, July 7, 2009

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