JUDGMENT
M.L. Singhal, J.
1. The prosecution case in brief is that on 27-5-1992 Sharanjit Singh, Paramjit Singh and their father Surinder Singh were there at bus adda Shahbazpur. They were to go to Amritsar. Raghbir Singh and Kuldip Singh sons of Rattan Singh of village Shahbazpur were quarrelling with a tailor-master of Kamalpura. They were giving him slaps. Sharanjit Singh and Paramjit Singh intervened and separated them. They remarked that poor should not have been beaten and insulted like that and if they were to fight and have trial of strength with an equal and not with a poor like that tailor. Thereafter, Surinder Singh and his sons left for Amritsar. At about 2-30 p.m. they came back from Amritsar and alighted at bus adda Shahbazpur. After alighting at bus adda they started going towards their house/Behak and when they reached in front of the house/shop of Raghbir Singh son of Rattan Singh, said Raghbir Singh fired shot with 12 bore double barrel gun towards them i.e. Surinder Singh and his sons with intention to kill them, but the fire shot did not hit anyone. Kuldip Singh son of Rattan Singh raised Lalkara that they i.e. Surinder Singh and his sons, be taught a lesson for assuming respectability (Chaudhar). There-upon Raghbir Singh fired another shot at Paramjit Singh and the fire Shot hit Paramjit Singh in the right side of his chest and the nipple. Paramjit Singh fell after the receipt of the fire shot. Surinder Singh and Sharanjit Singh raised alarm ‘Mar ditta ! Mar Ditta !’ Raghbir Singh and Kuldip Singh ran away with the said 12 bore double barrel gun. Surinder Singh arranged conveyance and Paramjit Singh injured was removed to Civil Hospital, Taran Taran by Surinder Singh and his son Sharanjit Singh. Paramjit Singh was declared dead in Civil Hospital, Tarn Taran. Sharanjit Singh was left in Civil Hospital, Tarn Taran to guard the dead body. On receipt of message from Civil Hospital, Tarn Taran, ASI Shamir Singh reached there. Surinder Singh met him at the gate of the Civil Hospital Tarn Taran where he made statement Ex. PW. 6/A before ASI Shamir Singh. On the basis of statement Ex. PW 6/A, Case FIR No. 35 dated 27-5-1992 was registered at Police Station Patti under S. 302/34, IPC and 25/27 of Arms Act.
2. ASI Shamir Singh PW. 13 held inquest on the dead body which is Ex. PW. 5/C. Dead body was handed over to HC Daljit Singh and LC Inderjit Singh with a view to getting autopsy performed on it. He recorded the statements of Sharanjit Singh and Surinder Singh. He reached the place of occurrence, i.e. village Shahbazpur. He prepared rough site plan Ex. PW. 13/C of the place of occurrence. He recorded the statements of Mukhtiar Singh and Partap Singh.
3. Dr. Paramjit Singh, Medical Officer of Civil Hospital, Tarn Taran performed autopsy on the dead body of Paramjit Singh son of Surinder Singh on 28-5-1992 at 11-00 a.m. He found the following injuries on the dead body :-
1. Lacerated wound 1 1/2 cm x 1 1/2 cm. present on right side of the chest, just lateral and above the nipple. Margins inverted.
2. Lacerated wound 4 x 2 cm present on the left scapular region. Margins everted.
On dissection he found the lungs and pleura lacerated. He found great vessels and heart also lacerated. Pleural cavity was full of blood. Ribs and left scapula were fractured. The cause of death, in his opinion, was shock and haemorrhage as a result of injuries which were sufficient to cause death in the ordinary course of nature. He removed the clothes worn on the dead body. He handed over those clothes to HC Daljit Singh and LC Inderjit Singh, who produced these clothes before ASI Sharmir Singh. ASI Sharmir Singh made those clothes into sealed parcel and he took that sealed parcel into possession vide memo Ex. PW 13/D. Surinder Singh made supplementary statement. In supplementary statement he stated that it was not Raghbir Singh son of Rattan Singh but it was his brother Balbir Singh alias Bhira son of Rattan Singh, who had fired shots at his son Paramjit Singh on 27-5-1992 at about 2.00/2.30 p.m. and he had named Raghbir Singh son of Rattan Singh on account of being perplexed though it was Balbir Singh alias Bhira son of Rattan Singh, who had fired shots on his son Paramjit Singh on the Lalkara raised by Kuldip Singh alias Kala son of Rattan Singh. Initially Raghbir Singh alias Bhira son of Rattan Singh and Kuldip Singh alias Kala son of Rattan Singh were arrested. After it had transpired that it was Balbir Singh alias Bhira son of Rattan Singh, who had fired shots at Paramjit Singh, that Balbir Singh was arrested. On 5-8-1992, ASI Dalbir Singh interrogated Balbir Singh while he was in police custody at Police Station, Patti in the presence of ASI Sardool Singh and one Lakha Singh. Balbir Singh got recovered one rifle Ex. P1 in pursuance of his disclosure statement Ex. PW. 10/A, which was signed by Balbir Singh and attested by ASI Sardool Singh and Lakha Singh. The rifle was lying wrapped in a gunny bag in the heap of gravel near his house. Sketch of the rifle was prepared which is Ex. PW 10/C. Rifle Ex. P1 was made into parcel, which was taken into possession vide memo Ex. PW. 10/B. Balbir Singh produced duplicate licence lying in a trunk in his house which was taken into possession vide memo Ex. PW. 10/D. After investigation Balbir Singh and Kuldip Singh sons of Rattan Singh were challaned under S. 302 read with S. 34, IPC.
4. Case was committed to the Court of Session by Shri Bhagwan Singh, Sub Divisional Judicial Magistrate, Patti vide order dated 14-11-1992.
5. Vide order dated 7-12-1992, Sessions Judge, Amritsar charged Balbir Singh under S. 302, IPC and he also charged Kuldip Singh under S. 302/34 IPC. Accused pleaded not guilty to the charge and claimed trial.
6. With a view to bring home to accused Balbir Singh alias Bhira and Kuldip Singh alias Kala sons of Rattan Singh the charge framed against them, the prosecution examined Dr. Paramjit Singh, Medical Officer, Civil Hospital, Tarn Taran PW. 1, Surinder PW. 6, Mukhtiar Singh PW. 7, Sharanjit Singh PW. 8, Partap Singh PW. 9, Lakha Singh PW. 10, S. I. Dalbir Singh PW. 11, ASI Shamir Singh PW. 13 and Manjit Singh, Clerk, office of District Magistrate, Amritsar PW. 14. Affidavits of LC Inderjit Singh, HC Daljit Singh, Constable Surinder Singh, Const. Sarmukh Singh and HC Sukhdev Singh, PW. 1, PW. 2, PW. 3, PW. 4 and PW. 12 respectively were tendered into evidence. SI Sita Ram, MHC Balraj Singh and ASI Sardul Singh were given up as unnecessary.
7. Balbir Singh accused when examined under S. 313, Cr.P.C. denied the imputations appearing in prosecution evidence against him and stated that it was a false case, engineered against them at the instance of Mukhtiar Singh PW as he had been convicted for the murder of Harbhajan Singh son of Dalip Singh. His father and Dalip Singh were friends and his father used to help Dalip Singh. Mukhtiar Singh is still to serve the remaining sentence under S. 302, IPC. Inquiry held by the police revealed that Raghbir Singh was not present. His name was subsequently substituted for Raghbir Singh.
8. Kuldip Singh when examined under S. 313, Cr.P.C. denied the imputations appearing in prosecution evidence against him and stated that he is innocent involved in the case on account of his being brother of Raghbir Singh. Mukhtiar Singh is hostile towards them and at his instance his name was added.
9. In their defence, accused examined Narinder Singh DW. 1, Jagir Singh DW. 2, Swaran Singh DW. 3 and MHC Dilbagh Singh of Police Station Patti DW. 4.
10. On the conclusion of the trial, Shri G. L. Chopra, Sessions Judge, Amritsar found the charge proved against Balbir Singh and accordingly convicted him under S. 302, IPC. He found the charge not proved against Kuldip Singh. He accordingly gave him the benefit of doubt and acquitted him. He sentenced Balbir Singh to undergo imprisonment for life and to pay fine of Rs. 2,000/-, or in default to undergo further rigorous imprisonment for six months under S. 302, IPC.
11. Feeling aggrieved from his conviction and sentence recorded on 20-7-1995 by learned Sessions Judge, Amritsar, Balbir Singh has come up in appeal to this Court, namely Criminal Appeal No. 420-DB of 1995.
12. We have heard the learned counsel for the appellant, learned Deputy Advocate General, Punjab and have gone through the record.
13. It has been submitted by the learned counsel for the appellant that there is delay in the lodging of the first information report. Occurrence is alleged to have taken place at 2-00/2-30 p.m. in the area of village Shahbazpur, which is at a distance of 10 Kms. from police station Patti. Surinder Singh PW is alleged to have made statement before ASI Shamir Singh on 27-5-1992 at 5-30 p.m. at the gate of Civil Hospital, Tarn Taran. Special report reached the Magistrate at 8-00 a.m. on 28-5-1992. It has been submitted that if FIR had really been recorded at 7-30/8-00 p.m. on 27-5-1992, there could be no reason for its receipt by the Magistrate at 8-00 a.m. on 28-5-1992. It has further been submitted that statement Ex. PW. 6/A was antdated/antetimed and similarly FIR was antetimed/antedated. Otherwise the special report would have reached the Magistrate much earlier. In our opinion, there is no delay in the lodging of the first information report. It must have taken some time to arrange conveyance for the removal of injured Paramjit Singh to Civil Hospital, Tarn Taran. Doctor must have taken some time to declare Paramjit Singh dead. Doctor must have taken some time in flashing wireless message to Police Post, Kairon. ASI Shamir Singh must have taken some time to reach Civil Hospital, Tarn Taran from Police Post, Kairon. Recording of the statement of Surinder Singh Ex. PW-6/A was over at 5-30 p.m. It is quite a long statement. It must have taken some time to ASI Shamir Singh to understand what was being conveyed to him by Surinder Singh and then in reproducing it in the form of statement Ex. PW-6/A. In our opinion, therefore, there is no delay in recording of statement Ex. PW-6/A. Similarly, there is no delay in the recording of the first information report as it must have taken Constable Shiv Karan Singh some time to reach Police Station, Patti with statement Ex. PW-6/A for the registration of the case. Constable Sarmukh Singh must have taken some time to reach the Magistrate with the special report. If Constable Sarmukh Singh showed remissness in the performance of his duty and did not deliver the special report with due despatch to the Magistrate, the interest of justice should not suffer.
14. It has been next submitted that the motive set up in the case is highly trivial and nobody would go to the extent of committing murder on this trivial motive. Pratap Singh PW-9 is tailor running tailoring shop at bus adda, Shahbazpur. According to him, on 27-5-1992 at about 8-00 a.m. Balbir Singh and Kuldip Singh accused came to his shop and started quarrelling with him. Soon thereafter Surinder Singh and his sons Sharanjit Singh and Paramjit Singh came there and they separated them. According to the prosecution, the intervention of Surinder Singh, Sharanjit Singh and Paramjit Singh was not relished by Balbir Singh and Kuldip Singh. Surinder Singh, Sharanjit Singh and Paramjit Singh came back from Amritsar at about 2.30 p.m. and they got down the bus. Balbir Singh fired shot at them which did not hit anyone. Kuldip Singh raised Lalkara that Paramjit Singh be taught a lesson for becoming Choudhary (Mohatbar), whereupon Balbir Singh fired another shot which hit Paramjit Singh in his chest and he fell down. It has been submitted by the learned counsel for the appellant that Surinder Singh, Sharanjit Singh and Paramjit Singh were not involved directly in the episode in which Pratap Singh and Kuldip Singh on the one hand, Balbir Singh and Kuldip Singh on the other hand were allegedly involved and they became involved only on account of their intervention when Balbir Singh and Kuldip Singh were slapping Pratap Singh. It has been submitted that if at all they had any annoyance, their annoyance was directed against Pratap Singh PW-9 and not against Surinder Singh, Paramjit Singh and Sharanjit Singh. Suffice it to say, that depended upon the psychological upset Balbir Singh and Kuldip Singh suffered due to the intervention of Surinder Singh, Sharanjit Singh and Paramjit Singh. Similarly, that depended upon how much furious they felt towards Pratap Singh. In criminal cases, the magnitude of motive is not much relevant. Some times murders are committed on trivial motive or when there is no motive at all and some times no offence is committed what to talk of murder though the provocation/motive may be quite grave/serious. Where a case rests on ocular account, the question of motive pales into insignificance. When a case rests on ocular account, ocular account has to be appreciated; existence or non-existence of motive being not much material. It has been submitted by the learned counsel for the appellant that in the statement Ex. PW-6/A recorded at 5-30 p.m. on 27-5-1992, the names of the assailants mentioned are Raghbir Singh son of Rattan Singh and Kuldip Singh son of Rattan Singh. Balbir Singh son of Rattan Singh does not figure in the statement made by Surinder Singh soon after the occurrence. Surinder Singh PW stated in cross-examination that he had known the accused since before and when statement was read over and explained to him, he pointed out to ASI Shamir Singh that it was not Raghbir Singh son of Rattan Singh, but it was Balbir Singh son of Rattan Singh, who had fired at his son and ASI Shamir Singh recorded his supplementary statement after 2-4 minutes of the recording of his first statement Ex. PW-6/A incorporating the name of Balbir Singh (Bhira) therein. This statement was recorded after the ruqa had been despatched. Surinder Singh PW stated that he had mentioned the name of Balbir Singh son of Rattan Singh and not the name of Raghbir Singh son of Rattan Singh. Police may have recorded it as Raghbir Singh. There is one son of Rattan Singh of the name Raghbir Singh. There is one son of Rattan Singh of the name Balbir Singh (Bhira). As ASI Shamir Singh had read out statement Ex. PW-6/A to him he pointed out the mistake that the name of Bhira had been wrongly recorded as Raghbir Singh. Thereupon ASI recorded another statement after 2-4 minutes of the recording of his first statement. Later statement was recorded after the ruqa incorporating his first statement had been sent. Surinder Singh PW further stated that his supplementary statement was recorded on 27-5-1992. In the case diary, it is recorded that the supplementary statement was recorded on 27-5-1992 before 8-30 p.m. Supplementary statement of Surinder Singh, however, bears 28-6-1992 as the date when it was recorded. To our mind, 28-6-1992 appears to have been put inadvertently beneath the supplementary statement of Surinder Singh. If ASI Shamir Singh had really learnt on 27-5-1992 itself that it was not Raghbir Singh son of Rattan Singh but it was Balbir Singh alias Bhira, who had fired shots at Paramjit Singh son of Surinder Singh on 27-5-1992, he would have recorded the statement of Sharanjit Singh under S. 161, Cr.P.C. on 27-5-1992 incorporating therein the name of Balbir Singh (Bhira). Statement of Sharanjit Singh under S. 161, Cr.P.C. was recorded on 27-5-1992. In this statement recorded under S. 161, Cr.P.C., the name of Balbir Singh alias Bhira figures as having fired shots at Paramjit Singh. Sharanjit Singh PW-8 stated in his cross-examination that his statement was recorded in the presence of his father and he had indicated the name of assailant as Bhira as Balbir Singh used to be called Bhira in the village. He stated that he had indicated that the shot had been fired from the shop of Bhira i.e. Balbir Singh. In his statement recorded u/S. 161, Cr.P.C. on 27-5-1992 he had stated that it was Bhira alias Balbir Singh who had fired shots at them. He stated that his statement under S. 161, Cr.P.C. was recorded after the preparation of the inquest. In his statement recorded during inquest proceedings, he had stated that it was Raghbir Singh son of Rattan Singh Singh, who had fired shots at them and after the inquest statement had been read out to him, he pointed out that it was Bhira alias Balbir Singh who had fired shots. Sharanjit Singh PW appears to be correct because in his statement recorded during inquest proceedings the name of Raghbir Singh son of Rattan Singh figures as having fired shots at them but in his statement recorded under S. 161, Cr.P.C. on 27-5-1992 the name of Balbir Singh alias Bhira figures as having fired shots at them. In the case diary there is mention that the supplementary statement of Surinder Singh was recorded before 8-30 p.m. on 27-5-1992. It appears that ASI Shamir Singh forgot to record the supplementary statement of Surinder Singh on 27-5-1992 before 8.30 p.m. and he afterwards put 28-5-1992 as the date on supplementary statement of Surinder Singh. Surinder Singh PW appears to have stated correctly that when the statement was read out to him, he pointed out that it was Balbir Singh alias Bhira, who had fired shots at them and not Raghbir Singh. He stated that he had pointed out to ASI Shamir Singh that the name of Bhira had been wrongly recorded as Raghbir Singh and thereupon ASI recorded another statement after 2-4 minutes of the recording of his first statement. In the site plan Ex. PW-13/C, which was prepared by ASI Shamir Singh on 28-5-1992, he showed the shop of Balbir Singh from where he is said to have fired shots. In the site plan he has shown other shops. He has not mentioned specifically as to which shop was that of Raghbir Singh obviously because the shop of Raghbir Singh was not relevant to be mentioned. It has been submitted by the learned defence counsel that ASI Shamir Singh introduced Balbir Singh alias Bhira as accused quite afterwards as in application Ex. PW-5/D which was moved to the Senior Medical Officer, Civil Hospital, Tarn Taran after the preparation of the inquest, the name of Raghbir Singh son of Rattan Singh figures and not that of Balbir Singh alias Bhira son of Rattan Singh. It has been submitted that if he had really recorded the supplementary statement of Surinder Singh on 27-5-1992 and the statement of Sharanjit Singh on 27-5-1992, he would not have committed this mistake and he would have mentioned Balbir Singh alias Bhira son of Rattan Singh as having fired shots in application Ex. PW-5/D. Suffice it to say, we do not find anything spectacular about Balbir Singh alias Bhira to have been substituted for Raghbir Singh son of Rattan Singh. Balbir Singh alias Bhira son of Rattan Singh is also a shopkeeper. Raghbir Singh son of Rattan Singh is also a shopkeeper. We could have suspected mala fides on the part of ASI Shamir Singh in the substitution of Balbir Singh alias Bhira of Raghbir Singh if Balbir Singh alias Bhira had some distinction/aura about him. If both of them were men of the same status, we cannot impute any mala fides to the police in proceeding against Balbir Singh alias Bhira in bidding adieu to the investigation being against Raghbir singh and not seeking his judicial remand and rather getting him discharged. Further, Balbir Singh alias Bhira is licencee of one DBBL gun No. 3702-D/4 of 12 bore. We do not have any reason to suspect any mala fides on the part of the police in getting an innocent person discharged and proceeding against another about whom they strongly felt that he was murderer. Similarly, we do not suspect any mala fides on the part of Surinder Singh and Sharanjit Singh PWs, who withdrew Raghbir Singh son of Rattan Singh from the array of the accused and chose to proceed against Balbir Singh alias Bhira son of Rattan Singh. Surinder Singh is the father of the deceased. Sharanjit Singh is the brother of the deceased. They could derive satisfaction only if the actual murderer of Paramjit Singh was convicted. They could derive no satisfaction and solace if some innocent was convicted for the murder of Paramjit Singh. It is human psychology that sense of revenge gets satisfied/solaced only if the actual wrongdoer is convicted. There is no satisfaction to the sense of one’s revenge if somebody else is convicted and not the actual wrongdoer. It would be travesty of justice of Bhira alias Balbir is allowed to take advantage of the inadvertence or confusion on the part of Surinder Singh entertained by him at the commencement of investigation. To us it seems that they did not want an innocent person to be indicated for the murder of Paramjit Singh.
15. Mukhtiar Singh P.W. 7 was examined by the police on 28-5-1992 under S. 161, Cr.P.C. He stated that on 27-5-1992 at 2-00/2-30 p.m. he was present at bus adda Shahbazpur. Paramjit Singh, Sharanjit Singh and Surinder Singh came by bus there from Amritsar side and were going towards their Behak and when they reached near the shops of Balbir Singh and Kuldip Singh, Balbir Singh fired shot at them which did not hit anyone. Thereafter, Kuldip Singh raised Lalkara calling upon Balbir Singh to teach them a lesson for their assuming the role of “Mohatbar/Choudhary.” Thereupon, Balbir Singh fired shot which hit Paramjit Singh on the right side of his chest. Paramjit Singh fell down while the assailants ran away. It has been submitted by the learned counsel for the appellant that Mukhtiar Singh PW-7 is a chance witness. His village is at a distance of 1 1/2 Kilometer from bus adda Shahbazpur. He was standing on the vegetable shop. The shopkeepers ran away after the first shot was fired but he did not run away. Site plan suggests that there are other shops. No other shopkeeper came forward to state about the occurrence. Mukhtiar Singh did not figure during inquest. He did not appear before the police on 27-5-1992. He met the police on 28-5-1992 at 9-00 a.m. If Mukhtiar Singh had been present at the vegetable shop and witnessed the occurrence, he would have joined Surinder Singh in the removal of Paramjit Singh injured to Civil Hospital, Tarn Taran. No wonder, Mukhtiar Singh was not present at the spot and he was enshrined as an eye-witness in the case so as to provide independent corroboration to the statements of Surinder Singh and Sharanjit Singh PWs. In site plan Ex. PW-13/C, which was prepared on 28-5-1992, Mukhtiar Singh P.W. is not shown standing at the vegetable shop witnessing the occurrence in bus adda Shahbazpur.
16. In the statement of Pratap Singh P.W. 9 also, the name of Balbir Singh (Bhira) and Kuldip Singh figure. He made statement to the police on 28-5-1992. He could not appear before the police on 27-5-1992 as he was not aware of the names of the victims. In the evening he went to his house and came to know their names.
17. According to the prosecution, one DBBL gun No. 7302-D/4 was used in the commission of murder of Paramjit Singh and this gun was got recovered by Balbir Singh accused in pursuance of his disclosure statement on 5-8-1992. The gun was made into a sealed parcel and sent to the Ballistic Expert. The recovery of gun on 5-8-1992 does not further the case of the prosecution as the Court cannot be sure that between 27-5-1992 and 5-8-1992, gun was fired only on 27-5-1992 and not thereafter.
18. It has been submitted by the learned defence counsel that in DBBL gun cartridges are used. When DBBL gun is fired there is emission of pellets. In this case, Dr. Paramjit Singh did not extract any pellet from the body of Paramjit Singh. It has been submitted that Dr. Paramjit Singh has nowhere stated that the cause of death was fire-arm injuries. If the doctor had stated that the cause of death was fire-arm injuries that would have been only corroborative evidence of Surinder Singh and Sharanjit Singh P.Ws Doctor’s is only an opinion if post-mortem examination carried out by the doctor is perfunctory, that won’t suggest that interest of justice should suffer. In the site plan, point A is the point at which Balbir Singh was when Paramjit was hit. Distance between points A and B is 6 Karms. In the case of gun the range of blackening would normally extend to three feet as beyond that shot charge begins to disperse. It is not a case of that type where blackening was found. At page 269 of Modi’s Medical Jurisprudence and Toxicology (Twenty-First Edition) the opinion of Dr. Modi goes that the shot charge of a gun at a distance of one to three feet makes a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun as the shot charge enters as one mass but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed with unburnt grains of powder. On the other hand, at a distance of six feet the central aperture is surrounded by separate openings in an area of about 2 inches in diameter made by a few pellets of the shot which spread out before reaching the mark, the skin surrounding the aperture may not be blackened or scorched but is tattooed to some extent. At a distance of about 12 feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the extent of choke but without causing blackening, scorching or tattooing of the surrounding skin. According to Taylor, no general rule can be laid down about the distance from which a fire-arm was discharged. If blackening is found around the wound of entry on the dead body by the medical man it confirms that the deceased was within six feet of the assailant. In this case gun shot fire was made at a distance of 6 Karms i.e. 33 feet and as such there could be no blackening or tattooing around the wound. Dr. Paramjit Singh was not cross-examined at all by the defence as to whether there was any blackening, charring or tattooing around the wound. He was not asked whether he found any pellet in the would. In our opinion, we do not derive much assistance from Dr. Paramjit Singh when he did not state whether those were fire-arm injuries or not; whether he probed the injury to extract pellets, further; whether he found any blackening, charring or tattooing around the wound. Eye-witness account is quite consistent, reliable and inspiring. We accept the eye-witness account.
19. For the reasons given above, we are of the opinion that the learned Sessions Judge, justifiably found the charge proved against Balbir Singh accused and convicted and sentenced him. So, this appeal fails and dismissed. Conviction and sentence are maintained.
20. Appeal dismissed.