- (1.) This appeal has been preferred against the judgment and order dated 6.2.2008 passed by the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No.248-DB of 1998, by which the High Court affirmed the judgment and order dated 7.4.1998 passed by The Additional Sessions Judge, Ferozepur in Sessions Case No.11 of 1996, by which the appellant stood convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter called 'IPC') and was awarded the imprisonment for life and a fine of Rs.5,000/- was imposed upon him. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for 2 years. Co-accused Kashmir Singh @ Malla Singh @ Malli was also similarly convicted and sentenced.
(2.) Facts and circumstances giving rise to this appeal are as follows: A. On 28.10.1995, FIR No.150/95 was registered under Section 302 IPC at Police Station Dharamkot, alleging that Kashmir Singh and Hira Singh had gotten into a verbal feud with Mukhtiar Singh over the sale of country liquor on credit. Upon Mukhtiar Singh's refusal to give them liquor on credit basis, they threatened to teach him a lesson. Kashmir Singh and Hira Singh returned after 15-20 minutes alongwith Darbara Singh, the appellant herein. Upon instigation by Hira Singh, the appellant hit Mukhtiar Singh on the head with a Kirpan, while co- accused Kashmir Singh hit him on the chest with a Kirpan, as a result of which, Mukhtiar Singh died instantly. B. On the basis of the aforesaid FIR, investigation ensued and the dead body of Mukhtiar Singh was recovered and sent for post-mortem, which was conducted by Dr. Charanjit Singh (PW.11) on 29.10.1995. After the conclusion of the investigation, the police submitted the final report under Section 173 of the Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.') against all 3 accused named in the FIR including the appellant. The case was thereafter committed to the Sessions Judge, Ferozepur for trial. The appellant as well as the other co-accused pleaded innocence and claimed trial. Thus, the appellant Darbara Singh and Kashmir Singh were charged under Section 302 IPC while the co-accused Hira Singh was charged under Section 302 r/w Section 34 IPC. During the course of the trial, the prosecution examined Amrik Singh (PW.1) and Gurdial Singh (PW.2) as eye-witnesses. They also examined other witnesses including Dr. Charanjit Singh (PW.11) and Investigating Officer Sukhwinder Singh, S.I. (PW.9). C. In their statements under Section 313 Cr.P.C., the accused denied their involvement in the incident and also examined 2 witnesses in their defence included Dr. Rachhpal Singh Rathor (DW.2) who had examined Bohar Singh, Kashmir Singh and Paramjit Singh in the hospital on the night of 28/29.10.1995. D. The learned Trial Court after appreciating the evidence on record and considering the arguments raised on behalf of the prosecution as well as the accused, convicted the appellant and Kashmir Singh, for the said offence while Hira Singh was acquitted vide judgment and order dated 7.4.1998. E. Aggrieved, the appellant and Kashmir Singh preferred Criminal Appeal No. 248-DB/98 before the High Court which was dismissed vide impugned judgment and order dated 6.2.2008. Hence, this appeal.
(3.) Shri Rohit Sharma, learned counsel appearing for the appellant has submitted that the appellant has falsely been enroped and that he did not have any proximity with Kashmir Singh. In fact, on the contrary, his family had a rather strained equation with the family of Kashmir Singh as one person from the family of the appellant had in the past (20 years ago), been prosecuted and convicted for the offence of committing rape upon Kashmir Kaur, a relative of Kashmir Singh. In fact, on refusal to give liquor on credit, Kashmir Singh, Paramjit Singh and Bohar Singh had teased Mukhtiar Singh, deceased. Mukhtiar Singh caused injuries to them and the appellant intervened in the scuffle. Thereafter, when brother of the deceased, namely Amrik Singh asked the appellant to be a witness for them, the appellant refused, thus the appellant has falsely been enroped in the crime. The manner in which the appellant has been accused of causing injury is not in fact at all possible because the medical evidence is not in consonance with the ocular evidence. The appellant had not been charged under Section 302 r/w Section 34 IPC, and even if it is assumed that the appellant had also participated in causing injury to the deceased Mukhtiar Singh, he should not be held responsible for the offence punishable under Section 302 IPC, as the said injury could not be proved to be fatal. No independent witness has been examined even though the incident occurred at 5 p.m., at a liquor vending shop, where a few persons can reasonably be expected to be present at that time. The appellant has served more than 8 years. Thus, the appeal deserves to be allowed.;