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CASE NO.: Appeal (crl.)  644 of 2006

PETITIONER: Surjit Singh and another

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B.Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

MARKANDEY KATJU, J.

1.      This appeal has been filed against the impugned judgment and order  dated 1.12.2005 of the Punjab and Haryana High Court in Criminal Appeal  No. 9-DB/2002 by which the appeal of the appellants against the judgment  of the Additional Sessions Judge Gurdaspur dated 6.12.2001 have been  dismissed and the conviction and sentence of the appellants under Sections  302/148/149/450 IPC have been maintained.  

2.      Heard learned counsel for the parties and perused the record.

3.      There were five accused in this case before the trial court, but this  appeal has been filed only on behalf of two accused viz., accused No. 3  Surjit Singh, son of Gian Singh and accused No. 5 Daljit Singh, son of Assa  Singh.  It may be mentioned that there is another co-accused named Surjit  Singh @ Bagga, son of Kartar Singh, but we are not concerned with him in  this case.  It may also be mentioned that all the five co-accused are  policemen.

4.      The prosecution case was that the deceased Harbans Kaur was living  in village Beri along with her sons Mohan Singh and Rattan Singh.  It is  alleged that on 21.2.1997 at about 6 P.M. Harbans Kaur went out to ease  herself when the accused said some indecent words to her and she returned  to her home.  At that time Mohan Singh, son of the deceased Harbans Kaur  was outside in the field and when he came home he found his younger  brother already in the house.  Mohan Singh saw the accused coming to his  house and he followed them.  He heard some screaming in the house and  saw from the window that his mother was lying without her salwar and  accused Lakhwinder Singh was in the process of wearing his trouser.  All  the accused were present in the said room at that time.  On seeing this  Mohan Singh shouted but the accused Daljit Singh is said to have pointed a  pistol towards him and threatened that if he shouts he will be finished off.   Surjit Singh @ Bagga, son of Kartar Singh allegedly said that in case  Harbans Kaur remains alive she would implicate all the accused and hence  she should be killed.  It is alleged that thereupon Harinderjit Singh gave a  brickbat blow on the head of Harbans Kaur, as a result of which she died.  It  is alleged that after throwing the body of Harbans Kaur in the courtyard the  accused ran away.

5.      It may be mentioned that in the FIR dated 21.2.1997 the version given   by Rattan Singh, younger brother of Mohan Singh is different from the  depositions of the witnesses before the trial court.  In the FIR it is only stated  that when Rattan Singh returned home at about 6 P.M. he saw the dead body  of his mother Harbans Kaur lying in the courtyard.  None of the accused  were named in the FIR and the version given therein indicates that nobody  saw the assailants.  However, as rightly noted by the trial court as well as by

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the High Court, the accused were all police men, while the family of the  deceased are poor labourers.  The FIR was signed by Rattan Singh who was  only 12 years’ old at that time.  We agree with the High Court that Sub  Inspector Swaran Singh appears to have deliberately concocted a false FIR  not naming the accused since he belongs to the same department viz. police  department and hence he wanted to help the accused.  It was only on  14.4.1994 when Mohan Singh (PW1) went to hear the argument of the bail  application moved by one of the accused that he came to know that names of  the accused have not been mentioned in the FIR.  On the same day he sent  registered letters to the Chief Minister and Director General of Police,  Punjab stating that the police are not investigating the case fairly.     Receiving no response he filed a criminal complaint on 17.4.1997 before the  Magistrate.  The Police Case and the Criminal Case were clubbed together  and heard by the trial court.   

6.      We are inclined to believe the version of the witnesses before the trial  court and we agree with the High Court in rejecting the version given in the  FIR for the reasons given by the High Court.

7.      It seems that the accused were not successful in raping Harbans Kaur  as her sons Mohan Singh and Rattan Singh shouted for help.  As regards the  allegation of causing death of Harbans Kaur, the prosecution case, as is  evident from the depositions of the witnesses, is that Surjit Singh @ Bagga,  son of Kartar Singh (not Surjit Singh son of Gian Singh who is appellant No.  1 before us) exhorted that Harbans Kaur should be killed, and thereupon  Harinderjit Singh, another co-accused gave the fatal blow on the head of  Harbans Kaur.  Thus there is no evidence that the appellants before us had  any role in the killing of Harbans Kaur.  There was no evidence of common  intention either.  Hence, the conviction of the appellants under Section 302  IPC cannot be sustained and they are set aside.

8.      However, we uphold the conviction of the appellants under the other  provisions mentioned in the trial court judgment as there is no doubt that the  appellants along with other co-accused committed criminal trespass into the  house of Harbans Kaur and also formed an unlawful assembly, though such  attempt was frustrated by the presence of Mohan Singh and Rattan Singh.

9.      The appellant along with other associates entered the house of the  deceased.  They surely had an ill-motive, although the nature thereof has not  been proved.  What could, however, be the nature thereof was not known.   Forcible entry in her house, however, stands established.  The ingredients of  Section 450 IPC in a case of this nature, thus, stand fully satisfied.  We are,  therefore, of the opinion that the learned Trial Judge as also the High Court  have rightly found the appellants guilty of commission of the offence under  the said provision.

10.     We are informed that the appellants have already served out about 4  or 5 years’ imprisonment and hence we substitute the sentence awarded by  the trial court and the High Court by the sentence of imprisonment for the  period already undergone.  The appellants should be released forthwith  unless required in connection with some other case.

11.     With these observations the appeal stands allowed in part.