Criminal Appeal No.319-DB of 1998 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Appeal No.319-DB of 1998
Date of Decision: September 15, 2008
Karnail Singh and another ...........Appellants
Versus
State of Punjab ..........Respondent
Coram: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
Present: Mrs. Baljit Kaur Mann, Advocate for the appellants.
Mr.Rajesh Bhardwaj, Deputy Advocate General,Punjab
* * *
Sabina, J.
Karnail Singh and Dev Singh have challenged their conviction and
sentence under Section 302 read with Section 34 and 120-B of the Indian
Penal Code vide impugned judgment dated 4.7.1998 passed by the
Additional Sessions Judge, Rupnagar.
Prosecution story, in brief, is that complainant-Bhagat Singh was
resident of village Ramgarh (Daun). On 24.5.1991, complainant was
sleeping in his house. Gurmukh Singh was sleeping near his cattle in front
of the Gurudwara. At about 11.00 P.M., three sikh youth, aged about 25-26
years and of medium height, supporting turbans with loose beards armed
with rifles woke up Gurmukh Singh and enquired from him about the
location of the house of Gurmit Singh alias Vidhi. Gurmukh Singh went to
the house of Gurmit Singh and woke him up. These three sikh youth went
Criminal Appeal No.319-DB of 1998 2
towards the house of Baljit Singh Sodhi along with Gurmit Singh, whereas,
Gurmukh Singh remained standing near Gurudwara. After some time, they
heard noise of gun shots. Gurmukh Singh went to the house of Baljit Singh
and saw that his brother Baljit Singh and Gurmit Singh brother of
complainant were lying dead in a pool of blood due to gun shot injuries.
Complainant along with Gurmukh Singh went to the house of Baljit Singh
and saw the dead bodies lying there. Complainant suspected that Dev Singh
and Karnail Singh had got murdered Gurmit Singh and Baljit Singh because
Baljit Singh had purchased 4½ kilas of land from Balwinder Kaur falling in
area of Daun and Teera. About three years prior to the occurrence, Pal
Singh, cousin of Gurmit Singh alias Vidhi had helped Balwinder Kaur in
performing a `karewa’ ceremony with Raunaq Singh. Balwinder Kaur was
aged about 25/26 years, whereas, Raunaq Singh was aged about 70 years.
Baljit Singh was being compelled to vacate the land but he did not agree to
do so despite been advised by the complainant to vacate the land. The land
in question was to devolve on the son of Karnail Singh and due to this
reason, Karnail Singh and Dev Singh being related to each other had got
Baljit Singh and Gurmit Singh murdered by hiring some persons. On the
basis of the statement of the complainant, formal FIR No.61 dated
25.5.1991 was registered by the Police of Police Station Kharar at 2.55
A.M.
Inspector Ramesh Chander then went to the spot and prepared inquest
report with regard to the dead bodies of Baljit Singh and Gurmit Singh. He
took in possession blood stained earth and nine empty cartridges and three
live cartridges from the spot. He prepared rough site plan and sent the dead
bodies for post-mortem examination.
Criminal Appeal No.319-DB of 1998 3
Dr.Bandan Sehgal conducted the post mortem examination on the
dead body of Baljit Singh on 25.5.1991 and found the following injuries on
his person:-
“1. Lacerated wound 1.5 x 1 cm on outer angle or
right eye margins inverted and contused (entry
wound).
2. L.W. 3 x1.5 cm on left pinnaof hair with missing
cartlage margin everted with absence of external
auditory canal (Exit wound).
3. L.W. 1.5 x 1cm on left shoulder on back side
9 cm below left acromion point. Margins
inverted and contused (entry).
4. L.W. 3x1.5 cm on left acromion. Margin
everted. (Exit)
5. L.W.1.5x 1cm on outer side of left scapula 6 cm
from angle of scapula. Margin inverted
anocontused (entry wound).
6. L.W.5x3cm left shoulder on frontside 3cm below
left acromion point margin everted. (Exit)
7. L.W. 1.5x1cm on left upper arm on outer
aspect in middle 1/3rd
Margins everted and contused.(entry).
8. L.W. 3×2 cm on inner side of left upper arm
in middle 1/3rdmargins everted (exit)
9. L.W. 1.5x1cm on right hypo chondrium.10
cm lateral to xiphiserunun just below to
Criminal Appeal No.319-DB of 1998 4margin. Inverted and contused (Entry)
10. L.W. 4×2.5 cm in right plumber region on the
back 12 cm from angle of scapula. Margins
everted (exit)
11. Fracture of skull righ temporal/region just
lateral to ofbittal fossa and fracture
left/temporal bone in auricularregion.
Underlying meninges torn and inflamed. Brain
cavity full of blood clots with multiple laceration
of brain.”
In his opinion, the cause of death was injury on vital organs i.e. brain and
liver accompanied by massive shock and haemorrhage which was sufficient
to cause death in the ordinary course of nature. On the same day, he also
conducted the post mortem examination on the dead body of Gurmit Singh
and found the following injuries on his person:-
“1. L.W. 1.5x1cm on right neck on outer side 5
cm outwards and downwards occipital
protuberance. Margin inverted and contused
(entry wound).
2. L.W. 5 x 3cm on left sie of neck near base of
skull below and lateral to left pinna. Margins
everted (exit).
3. L.W. 1.5x1cm below left shoulder on front
side 8 cm from acromion point, Margins
inverted(entry).
4. L.W. 12x6cm below left shoulder on
Criminal Appeal No.319-DB of 1998 5
outerside 6 cm below left acromion point.
Margin everted (exit)
In his opinion the cause of death was spinal cord injury (complete cut)
resulting from gun shot injury which was sufficient to cause death in the
ordinary course of nature.
After completion of investigation and necessary formalities, challan
was presented against accused- Karnail Singh and he was sent up for trial.
Charge was framed against the accused under Section 302 read with
Section 120-B of the Indian Penal Code on 26.5.1992. During the pendency
of trial, prosecution moved an application under Section 319 of the Code of
Criminal Procedure for summoning Dev Singh to face the trial as an
accused. Dev Singh had been shown in column No.2 at the time of
presentation of report under Section 173 of the Code of Criminal Procedure.
The said application was allowed and charge was framed against accused
Karnail Singh and Dev Singh under Sections 302, read with Section 34 of
the Indian Penal Code and 120-B of the Indian Penal Code on 27.3.1995.
Accused did not plead guilty to the charge and claimed trial.
Prosecution in order to prove its case examined as many as 12
witnesses. After the close of prosecution evidence, accused when examined
under Section 313 of the Code of Criminal Procedure prayed that they were
innocent and had been falsely involved in this case. Accused did not
examine any witness in their defence despite opportunity.
Learned trial Judge believed the prosecution version and convicted
and sentenced the accused as mentioned above. Hence the present appeal.
In appeal, Mrs. Baljit Mann, learned counsel for the appellants has
argued that there was no material on record to establish any conspiracy
Criminal Appeal No.319-DB of 1998 6
between the appellants and the assailants. The witness examined by the
prosecution in this regard i.e. PW3 Gulzar Singh was not a truthful witness.
He had been making different statements at different instances to suit
himself. The behavior of the said witness was most unnatural which made
his statement untrustworthy. Accused had been involved in this case merely
on the basis of suspicion.
Mr.Rajesh Bhardwaj, learned State counsel, on the other hand, has
submitted that Gulzar Singh PW3 was liable to be believed. He had heard
Karnail Singh conspiring with Daljit Singh Dalli, Balwinder Singh Jattana
and Baldev Singh Hawara (all proclaimed offenders) regarding murder of
Baljit Singh and Gurmit Singh. The said witness had also seen the
appellants present at the spot while Baljit Singh and Gurmit Singh were
murdered by the other accused who were declared Proclaimed Offenders.
Appellants in this case faced the trial on account of their conspiracy
with the assailants who had committed murder of Baljit Singh and Gurmit
Singh on 24.5.1991 at about 10.00/11.00 P.M. Since the appellants faced
the trial on account of conspiracy, the evidence led by the prosecution has to
be examined to the effect as to whether the charge of conspiracy against the
appellants has been established or not with regard to the murder in question.
The prosecution case mainly rests on the testimony of PW3 Gulzar
Singh, who is the witness regarding conspiracy hatched by the appellants
with other co-accused who were declared Proclaimed Offenders at the trial.
PW3 Gulzar Singh, in his examination-in-chief on 11.4.1997, deposed as
under:-
” On 24.5.1991 I was going at about 6/6.30 p.m. from village
Ramgarh to Mundi Kharar on bicycle. When I reached near the
Criminal Appeal No.319-DB of 1998 7turn of the road near bus stop of village Daun, I saw three sikh
young gentlemen, named, Daljit Singh Dalli, Balwinder Jatana
and Baldev Hawara. Karnail Singh, son of Banta Singh and Dev
Singh son of Pohlo Singh, now present in the court were also
present with the aforesaid three persons. I knew the aforesaid
three persons as they used to come to the Mela of village Daun.
Karnail Singh said in my hearing that his son had been married to
the only daughter of Raunaq Singh, and Raunaq Singh was having
8 acres of land in village Daun and village Teera. He was further
saying that Gurmit Singh and Baljit Singh wanted to grab that
land by making Raunaq Singh to enter into kareva with one
Balwinder Kaur. Karnail Singh was asking the aforesaid three
young men that they should help him in achieving his end and
they would also be given due benefit. Karnail Singh was telling
them that they should liquidate Gurmit Singh and Baljit Singh
belonging to village Ramgarh, which is located adjacent to
village Daun. After over hearing the aforesaid conversation I
came to my house, At about 10/10.30 p.m. on the aforesaid date,
myself and my brother Gurmuk Singh were lying near our
buffaloes, the aforesaid three youngmen accompanied by Karnail
Singh and Dev Singh accused came near the Gurdwara of village
Ramgarh and Karnail Singh and Dev Singh pointed towards us.
They woke up my brother Gurmukh Singh. They were armed
with small rifles. Gurmukh Singh took them to the house of
Gurmit Singh. They told Gurmit Singh that they wanted to se
Baljit Singh. Thereafter, they left to the house of Baljit Singh in
Criminal Appeal No.319-DB of 1998 8the company of Karnail Singh and Dev Singh and they directed us
to stay back. I followed them, when they had gone for some
distance. My brother Gurmit Singh called out Baljit Singh to
open the door. Karnail Singh and Dev Singh pointed towards
Baljit Singh, where after the aforesaid youngmen fired at Gurmit
Singh and Baljit Singh who died at the spot. Karnail Singh and
Dev Singh were responsible for the murder of Baljit Singh and
Gurmit Singh. My statement was recorded by the police.”
The said statement of this witness in the Court is at variance with his
statement made before the Police Exhibit .DB which was duly confronted to
the said witness, at the time of cross-examination. The said witness has
made material improvements in his statement when he appeared in the
witness box. In his statement before the police, he did not state that he had
also gone to the spot where the occurrence took place or that Karnail Singh
and Dev Singh were also accompanying the three armed youth. In his
statement before the Police, he had stated that at about 11.00 A.M., on
24.5.1991, he was sleeping along with his brother Gurmukh Singh near
cattle in front of Gurudwara. Three Sikh youth woke up Gurmit Singh and
took him aside. The said three youth were Balwinder Singh Jattana, Baldev
Singh Hawara and Daljit Singh Dalli and out of fear, he remained lying on
the cot and after some time, he heard noise of firing. He got up and saw that
his brother Gurmit Singh and Baljit Singh were lying dead in pool of blood
due to gun shot injuries. The said witness, however, while appearing in the
witness box deposed that at about 10.00/10.30 P.M. on the day of
occurrence, he was standing with his brother Gurmukh Singh. Three young
men accompanied by Karnail Singh and Dev Singh came near Gurudwara
Criminal Appeal No.319-DB of 1998 9
and woke up Gurmukh Singh and Gurmukh Singh took them to the house
of Gurmit Singh and told him that they wanted to see Baljit Singh.
Thereafter, they left for the house of Baljit Singh in the company of
Karnail Singh and Dev Singh. He was directed to stay back but he followed
them. Gurmit Singh asked Baljit Singh to open the door. Karnail Singh and
Dev Singh pointed towards Baljit Singh. Thereafter, the young men fired at
Gurmit Singh and Baljit Singh, who died at the spot. Thus, this witness
Gulzar Singh has made material improvements while appearing in the
witness box and in the absence of other reliable corroborative evidence, it
would not be safe to base conviction of the accused on the basis of his
statement. Generally, it is difficult area for the prosecution to spell out the
conspiracy between the accused. However, in this case, the prosecution has
brought out direct evidence in the shape of testimony of PW Gulzar Singh
regarding conspiracy between appellants and other three co-accused. But
the testimony of PW Gulzar Singh is not reliable and fails to inspire
confidence. The said witness is not a stranger but is brother of deceased
Gurmit Singh. As per this witness, he heard Karnail Singh talking to Daljit
Singh Dalli Balwinder Singh Jattana and Baldev Singh Hawara on
24.5.1991 at 6/6.30 P.M. He knew the three persons as they had been
visiting the fair of village Daun. As per this witness, Karnail Singh told the
other three persons that his son was married to only daughter of Raunaq
Singh who owned 8 acres of land. Gurmit Singh and Baljit Singh wanted to
grab the said land of Raunaq Singh by arranging `kareva’ ceremony of
Raunaq Singh with Balwinder Kaur. Karnail Singh asked the said three
persons to help him in achieving his goal and told that they should kill Baljit
Singh and Gurmit Singh. This witness has deposed in his cross-
Criminal Appeal No.319-DB of 1998 10
examination that militants had told in his presence that they would liquidate
Baljit Singh and Gurmit Singh on the same day. It is very strange that on
coming to know that Karnail Singh was conspiring to murder his brother
Gurmit Singh with his co-accused on the same day yet he did not bother to
inform the police but came home and slept. From the perusal of the
statement of this witness recorded by the Police, it is evident that he had not
witnessed the occurrence nor he had seen the appellants with assailants but
still while appearing in the witness box he has projected himself as an eye
witness to the occurrence. This witness in his cross-examination deposed
that he had seen appellants Karnail Singh and Dev Singh with the terrorists
near bus stand. Dev Singh accused was standing at the distance of 50 yards
from him when he had heard them talking to each other. It is not believable
that accused would have conspired with each other to commit murder of
brother of this witness within his hearing range.
We have gone through the entire statement of this witness carefully
and are of the opinion that this witness is not a reliable witness as he has
been changing his statement from time to time. Hence, his statement cannot
be relied upon.
So far as PW1 Bhagat Singh is concerned, the said witness has not
seen the occurrence. He has named the appellants ,who have committed
murder of Baljit Singh and Gurmit Singh along with three unknown
persons, out of suspicion. The said witness has also provided motive for
conspiracy hatched by the appellants with other co-accused with regard to
commission of crime. As per this witness, Baljit Singh, his brother had
purchased 4½ killas of land from Balwinder Kaur. Land of Raunaq Singh
was to be inherited by the son of Karnail Singh as Raunaq Singh was not
Criminal Appeal No.319-DB of 1998 11
having any male child and his daughter was married to Baljit Singh son of
Karnail Singh. Pal Singh arranged `kareva’ between Raunaq Singh and
Balwinder Kaur. Balwinder Kaur sold land to Baljit Singh deceased vide
sale deed Exhibit PB. Dev Singh and Karnail Singh got Baljit Singh and
Gurmit Singh murdered as the land was to be inherited by son of Karnail
Singh. Since the said witness had not witnessed the occurrence, his
statement, on its own, fails to advance the prosecution case. It is only if
there is some other corroborative material on record, his statement can have
some evidentiary value. Raunaq Singh had resorted his civil remedy
regarding his land by filing a civil suit and as such, there was no occasion to
commit murder of Baljit Singh at the instance of Karnail Singh.
PW2 Gurmukh Singh is the brother of deceased Gurmit Singh. He
has also deposed that on the day of occurrence he was woken up by three
persons who were accompanying Karnail singh and Dev Singh. He was
taken to the house of Gurmit Singh,who in turn, was taken to the house of
Baljit Singh Sodhi. He followed them. Although he did not see the
occurrence but his brother had been killed by those three persons at the
instance of Karnail Singh and Dev Singh. The statement of this witness
recorded by the appellant is Exhibit.DA wherein the fact that the three
youths were accompanied by Dev Singh and Karnail Singh is not
mentioned. The said witness was duly confronted with his statement
Exhibit.DA. Thus, this witness has also made material improvements in his
statement, while appearing in the witness box, to involve the appellants in
this case on the basis of conspiracy. As such, the statement of this witness
also fails to advance the prosecution case.
We have gone through the entire evidence on record carefully and
Criminal Appeal No.319-DB of 1998 12
are of the opinion that the prosecution has failed to prove its case against
the appellants beyond reasonable doubt with regard to the charge against
them. Thus, the possibility that deceased had not been murdered at the
instance of Karnail Singh and Dev Singh cannot be ruled out.
Accordingly, this appeal is allowed. Appellants are acquitted
of the charge framed against them.
( Sabina )
Judge
(Jasbir Singh)
Judge
September 15, 2008
arya