Gurjinder Singh Vs
State of Punjab
J U D G M E N T
ANIL R. DAVE, J.
aggrieved by the Judgment of conviction rendered by the High Court of Punjab
and Haryana at Chandigarh in Criminal Appeal No. 253-DB of 2006 dated 1st February,
2008, this appeal has been filed by the convict. By virtue of impugned order,
the appellant has been convicted for the offence under Section 302 of IPC and has
been awarded sentence of imprisonment for life and to pay a fine of
Rs.10,000/-, in default, to undergo further rigorous imprisonment for six
months. The order of conviction dated 3rd March, 2006, passed by the Sessions
Judge, Ferozepur, in Sessions Case No.33 of 2001 has been confirmed.
case of the prosecution in a nut-shell before the trial court was as under: Sandeep
Singh (who has been referred to hereinafter as `the deceased') was a resident of
village Chhibian Wali. He had lent a sum of Rs.5 lacs to Gurjinder Singh-the appellant
and the said amount was not being returned by Gurninder Singh (hereinafter
referred to as `the accused'). On the night of 9th June, 2001, the deceased and
the accused, along with Jasbir Singh (PW-4) were going to village Chhibian Wali
in Maruti Car No. PB-4-E 6699 from Muktsar.
The deceased was driving
the car and the accused was sitting next to him, whereas PW-4 was sitting on
the rear seat. Around 10.30 p.m., when they were about one kilometer away from
Canal Bridge, Ladhuwala, the accused asked the deceased to stop the car as he wanted
to ease himself. When the car was stopped, the accused stepped out of the car
and went to the back side of the car and thereafter came near the driver's seat
with his pistol and fired one shot on the right temple of the deceased and
another shot on the neck of the deceased. Upon seeing the said firing, PW-4 raised
an alarm and thereupon the accused warned him that he would kill him also if he
would not keep quiet and, thereafter, the accused fired on his own left arm and
another shot below his own knee of the right leg. PW-4 was afraid of the
incident and thereafter he ran away from the place.
telephoned his sister and his sister's husband but he was advised to keep mum
to save himself. Thereafter, his sister and her husband, who were abroad, came
to India and cremated the deceased. Thereafter, PW-4 went to police station
along with his sister and her husband and narrated the incident to S.H.O.
Harbans Singh (PW-13). An FIR was lodged by him on 1st July, 2001 at 5 a.m. whereas
the incident had taken place on 9th June, 2001.
may incidentally be noted that before the aforesaid FIR was lodged, the accused
had lodged an FIR being FIR No.118 on 10th June, 2001 at PS Sadar, Jalalabad.
10th June, 2001, the accused had filed the FIR before Harbans Singh (PW-13) to
the effect that when the accused and the deceased were returning to village
Chhibian Wali from Muktsar in Maruti car along with PW-4, who was sitting on
the back seat of the car, around 10.30 p.m. when they reached near Canal
Bridge, Ladhuwala, he saw a white gypsy belonging to Harcharan Singh parked on the
road. Harcharan Singh and two other unknown persons, whom he did not know but
he could identify if produced before him, stopped the car of the deceased and, thereafter,
Harcharan Singh came near the driver's window and fired at the deceased. The
bullets injured him on his neck and temple. Those two unknown persons also
fired at him and the bullets hit him on the upper side of the arm between
shoulder and his elbow, then the accused and PW-4 tried to run away. Thereafter,
Harcharan Singh went away in his gypsy. The accused and PW-4 had seen Sandeep
Singh dead in the car. Leaving PW-4 near the dead body of the deceased, he went
to police station and lodged the FIR. The aforesaid version of the accused was
recorded as FIR No.118 on 10th June, 2001.
the aforesaid FIR was filed, Harbans Singh (PW-13), the S.H.O. went to the place
of offence and prepared inquest report Ex.P.2 and took possession of three
empty cartridges and blood stained handkerchiefs, blood stained glasses and one
empty cartridge below the driver's seat and one bullet of .32 bore weapon. He
also recorded statement of PW-4 on 1st July, 2001.
per the report of Forensic Science Laboratory (FSL) Ex. P.51, the cartridges
which had been received from the spot of the offence were fired from 7.65 mm
pistol and the blood which was found from the pieces of glass was human blood
of Group `B'.
2nd July, 2001, investigation of the offence had been taken over by sub-Inspector
Kuldeep Singh (PW-12) and he had arrested the accused on the same day. On 3rd July,
2001, the accused was interrogated and at his instance (statement Ex.P-46), the
pistol from which the bullets were fired was recovered from a place half a
kilometer away from the culvert of a canal near village Ladhuwala.
mortem of the body of the deceased was conducted by Dr. Rajesh 5Kumar Sharma
(PW-1) on 10th June, 2001, and it was found that there was a lacerated punctured
wound on the right temporal region and there was a lacerated punctured wound on
the right side of the middle of the neck. There was a dark black area around both
the wounds. A lacerated un-punctured wound on the left side of his neck and
behind the left ear lobe was also found. The fourth injury on the deceased was
on the back of the neck at the level of C6 Vertebra and 3 cm. away from the
middle of the left side of the neck. The cause of death was shock and hemorrhage
due to injuries to brain and neck. The injuries were sufficient to cause death
in the ordinary course of nature.
the time of trial, the accused denied the allegations levelled against him. It was
his case that PW-4 had planned the murder and he had conspired with Harcharan
Singh, with whom the accused had animosity.
examining the witnesses and upon perusal of the evidence, the trial court
passed an order of conviction dated 3rd March, 2006.
aggrieved by the order of conviction, the afore stated appeal was filed before
the High Court by the accused which has been dismissed and, therefore, the
present appeal has been filed.
High Court confirmed the conviction believing the story of the prosecution. The
High Court agreed with the reasons assigned by the trial court for convicting the
accused and the High Court also came to the 6conclusion that there was
sufficient evidence to show that the accused had committed the offence. Recovery
of the pistol, self inflicted injury, presence of the accused at the place of
the offence and other evidence convinced the High Court that the order of
conviction passed by the trial court was just and proper and it dismissed the
Jaspal Singh, learned senior counsel, appearing on behalf of the accused-appellant,
submitted that the order of conviction recorded by the trial court and confirmed
by the High Court is not sustainable. His main submission was to the effect
that there was delay in filing the FIR on the part of the prosecution witness (PW-4).
Had the story narrated by PW-4 been correct, he would have immediately rushed to
the police station to file the FIR but he waited for around 20 days for filing
the FIR and the said delay has not been sufficiently explained by PW-4.
learned counsel also submitted that the pistol had been recovered from a public
place. It was found from a place which was about half a kilometer away from a bridge
of Ladhuwala Uttar and on a katcha path. Moreover, the pistol belonged to Jagtar
Singh (PW-9) and not to the accused. There was sufficient evidence to show that
the owner of the pistol was PW-9 as established from the record and, therefore,
the recovery of the pistol could not have been a ground for conviction of the accused.
He further added that it was not established that the accused had purchased the
pistol because no receipt for Rs. 90,000/- had been produced in evidence. Moreover,
according to him, there was no identification of the pistol.
He further submitted
that the parents of the deceased had not been examined by the prosecution, though,
as per version of PW-4, he had talked to the parents of the deceased after the
offence had been committed. According to him, the FIR filed by PW-4 contained a
story which was not correct. There was no reason for PW-4 to be afraid of
anyone and yet he did not lodge the FIR for a long period of about 21 days. By
not examining the parents of the deceased, according to the learned counsel, there
was suppression of material witnesses by the prosecution.
further submitted that the statement made by the accused leading to the recovery
of the pistol had not been produced in the evidence. According to him, only memo,
which is in the nature of the secondary evidence, was produced and, therefore, recovery
of pistol could not have been believed by the trial court. According to him,
even the memo, which revealed that in presence of `witnesses' the pistol was recovered,
was not correct because, in fact there was only one witness when the pistol was
recovered. According to him, at the time of making a recovery memo, there were
policemen who were not examined and there was no justifiable reason for not
examining those policemen. He further submitted that recovery of certain
cartridges-bullets from the car have not been explained though only two bullets
had been fired at the deceased, more number of bullets-cartridges had been
found and there was no explanation with regard to those bullets-cartridges. He further
submitted that there were certain discrepancies with regard to number of
parcels containing bullets-cartridges sent to the Forensic Science Laboratory
the aforestated reasons, according to the learned counsel, there were defects
in the investigation and there was no conclusive evidence that the accused had
committed the offence. He also cited several judgments so as to substantiate
his submissions. He, therefore, submitted that the order of conviction be
quashed and set aside.
the other hand, the learned public prosecutor appearing for the State submitted
that there was proper investigation and upon appreciation of evidence adduced
before the trial court, the trial court rightly convicted the accused. According
to the learned counsel appearing for the State, the discrepancy, if any, with
regard to identification of the pistol or the memo of recovery were so insignificant
that it would not lead to any serious consequences. According to him, the
prosecution had established the case against the accused and there was no reason
to set aside the order of conviction. He had replied to all the submissions made
by the learned counsel appearing for the accused.
have heard the learned counsel at length and have also gone through the relevant
evidence. We have also carefully gone through the judgments cited by the learned
counsel appearing for the accused and we do find that the said judgments
support the legal submissions made by him. Upon perusal of the impugned judgment
and judgment of the trial court along with evidence, we are of the view that
the order of conviction passed by the trial court and confirmed by the High
Court is just and proper for the reasons set out hereafter. In our opinion, the
trial court has rightly appreciated the evidence and the High Court has also
confirmed the order of conviction for justifiable reasons, duly incorporated in
the judgment and order confirming the conviction.
far as the delay in filing the FIR is concerned, there appears to be substance
in what has been stated by PW-4. Every human being would not react in the same manner
when he sees commission of an offence. A person might be bold enough to catch the
offender or he might run away and someone might never inform the police. Looking
to the behaviour of PW-4, we think that though there was delay in filing the
FIR of about 20 days, there is truth in the version given by him in the FIR. The
version given by him in the FIR is correct and his behaviour also appears to be
Possibly PW-4 was
afraid as he was threatened by the appellant as stated by him and also because he
had seen the offence being committed before him and for that reason he did not dare
to go to the police station immediately but he talked to the parents of the
deceased on telephone. It has come in evidence that the parents of the deceased
asked him to await till their arrival and thereafter he gathered courage to
file an FIR only after having discussion with them. The parents of the deceased
came to his 10place and gave him necessary courage and strength to tell the
truth before the police authorities. Though there was delay in filing of the FIR,
the contents of the FIR are not incorrect.
story put forward by the accused in his FIR does not appear to be correct. On
the contrary, we find truth in the FIR filed by PW-4, because the injuries inflicted
upon the accused prima facie appear to be self inflicted. Looking to the nature
of bullet injuries suffered by the accused, it is very clear that he was shot from
a very close range. The said fact can be revealed from the presence of burn
injuries - black area around the wound of the bullet. Had it been fired from a
distance, the presence of burn injuries or dark marks around the wound would
not have been there. When a weapon is fired from a close range, normally gun
powder which comes along with the bullet makes dark burn marks around the wound.
Both wounds on the accused
are having such black marks which would not have been there if, in fact, he had
been shot from a distance as the burnt gun powder does not go much far from the
muzzle of the weapon. Presence of dark burn marks around the wound shows that
the bullet injury had been inflicted from a very close distance. Such burn
marks would not have been there if in fact he had been running away from the
car. Thus, the story put forward by the accused in his FIR about his being shot
by another person does not appear to be correct.
regard to recovery of the pistol, the learned counsel is right that the pistol
was recovered from a public place but it was recovered from the place which
could not have been easily located by anyone and, therefore, the accused cannot
get benefit which the learned counsel wanted him to get. From the memo of
recovery, it is clear that the pistol had been hidden by digging earth under a
plant of Sarkanda about half a kilometer away from bridge of Ladhuwala Uttar. Thus,
it is very clear that the pistol had been hidden by digging earth under the
plant of Sarkanda about half a kilometer away on the eastern katcha path from bridge
of Ladhuwala Uttar and, therefore, in our opinion, the recovery cannot be said to
be from a place which could have been easily accessible to anyone.
regard to recovery memo, the mistake committed in writing the word `witness' or
`witnesses' can not be said to be so material so as to adversely affect the case
of the prosecution. In our opinion, such trivial mistakes should not give any
benefit of doubt or any sort of benefit to the accused. In fact, the recovery was
made in presence of Ajaib Singh, Assistant Sub Inspector and Balbir Singh, Head
Constable. It is also not correct that the memo of recovery was not produced before
the Court. Exhibit P.46, which reveals the fact about the statement made by the
accused in relation to pistol incorporates the entire statement made by the accused.
Therefore, the said document itself incorporates the statement made by the accused.
Moreover, simply because the recovery was in the presence of policemen would not
adversely affect the prosecution case. A police officer can be a reliable
witness if the court finds him to be a truthful person and in that event there
is no harm in relying upon his statement. In the circumstances, we do not find anything
objectionable if the pistol had been recovered in the presence of policemen.
regard to ownership of the pistol, it has been established by the prosecution that
for a sum of Rs.90,000/- the accused had purchased the pistol on 29-5-2001
whereas the offence had been committed on the night of 9th June, 2001. Thus,
the pistol had already been purchased by the accused. It is also pertinent to
note that intimation with regard to the sale of the pistol had also been given by
the seller of the pistol Jagtar Singh (PW-9) to the licensing authority and the
said fact was established by P.W.8 who is working in the office of the D.C., the
Licensing authority. Moreover, a sum of Rs.90,000/- was paid by the accused for
purchase of the pistol which had been used in the offence. Thus, with regard to
ownership and possession of the pistol, the prosecution has proved beyond any doubt
that the accused was not only owner of the pistol in question but was also
having possession thereof. It is also in evidence that the bullets which had
caused injury to the deceased were fired from the said pistol. Mere
non-production of a receipt issued by Jagtar Singh (PW-9) would not make case
of the prosecution weak as it has been duly established that the pistol was
sold to the accused.
the aforestated discussion and upon perusal of the evidence, we are satisfied
that the trial court as well as the High Court, while confirming the order of
conviction, are not in error and the order of conviction deserves to be
confirmed. The appeal is, therefore, dismissed.
(Dr. MUKUNDAKAM SHARMA)
(ANIL R. DAVE)