Singh & Ors Vs. The State of Punjab & Ors  INSC 1577 (10 December 1996)
Mukherjee, S.P. Kurdukar S.P.Kurdukar, J.
10TH DAY OF DECEMBER, 1996 Present:
Mr. Justice M.K. Mukherjee Hon'ble Mr. Justice S.P. Kurdukar Dr. B.L. Wadhera,
M.A. Chinnasamy, Devender P.Singh, Advs. for the appellants. Ranbir Yadav, Adv.
for R.S. Suri, Adv. for the Respondents.
following Judgment of the Court was delivered:
Criminal Appeal under Section 19 of Terrorist and Disruptive Activities
(Prevention) Act, 1987 (for short `TADA') is filed by the appellants accused
challenging the legality and correctness of the impugned judgment and order of
convictions dated 15th
February, 1996 passed
by Addl. Judge, Designated Court, District Jail, Nabha, under Sections 302/34
and 397 of the Indian Penal Code as also under Section 3 of TADA.
prosecution story as unfolded at the trial is as under:- Jagjit Singh, SHO (PW
6) attached to the police station, Sadar, on 22-3-1991 was posted on patrolling
duty in the jurisdiction of Bahadurgarh Town alongwith constables Mohinder
Singh (PS 4), Sohan Singh and Madan Lal (PW 5).
they were on duty near the gate of Escort & Soetze Factory, Bahadurgarh, Paramjit
Singh (A-1) and Satnam Singh (A-2) came there and told that they intended to
have room on rent and for that purpose they requested Sukhdev Singh (since
deceased) to accompany them so that they will have a drink and then find out
the suitable room on rent. Saying so, according to the prosecution, both the
accused and Sukhdev Singh left in the direction of Mandirwali Pulli. It is
alleged by the prosecution that one gentleman on bicycle informed Mohinder
Singh (PW 4) and Madan Lal (PW 5) who were on patrolling duty that a person in the
police uniform was lying in an injured condition near Mandirwali Pulli.
Jagjit Singh, SHO (PW 6) went to the place of occurrence and found Sukhdev
Singh was lying with bleeding injuries. Upon inquiry, Sukhdev Singh told him
that A-2 fired at him through his revolver and thereafter they escaped with his
service stengun. The detailed statement of Sukhdev Singh (since deceased) was
then recorded by Jagjit Singh, SHO (PW 6) and marked as Ex.PD/1. On the basis
of this statement, a crime was registered under Sections 307/34 IPC; 3,4,5 and
6 of TADA and 25 of the Arms Act. Sukhdev Singh was then shifted to Rajendera
Hospital, Patiala for medical treatment. During investigation, blood stained
earth was collected from the spot in a small tin box and after sealing the
same, it was sent to the Chemical Analyser. Sukhdev Singh, while in the
hospital succumbed to his injuries on 2nd May, 1991. Dr. Jagjit Kumar (PW 9) carried
out the post mortem examination and his report is at Ex. PB/1. It is noticed
from the record that both the accused were arrested on 25th April, 1991 in
another crime and were shown to have been arrested in the present crime on 28th
April, 1991. After completing the investigation, both the accused were put up
for trial for the offences punishable under Sections 302//307/382/394/397/34 of
the Indian Penal Code as also under Section 25 of the Arms Act and under
Sections 3,4,5 and 6 of TADA.
appellants accused denied the accusations leavened against them and claimed to
be tried. According to them, they have been falsely implicated because of
enmity. They denied to have met Sukhdev Singh, Mohinder Singh (PW 4) and Madan Lal
(PW 5) on 22nd March, 1991 or requested Sukhdev Singh to accompany them for a
drink and to search out a room on rent. They pleaded that they are innocent and
they be acquitted.
the outset, it may be stated that the entire prosecution case rested on
circumstantial evidence. The prosecution, principally, relied upon two vital
circumstances, (1) Sukhdev Singh was last seen together alive going alongwith
both the accused and (2) statement of Sukhdev Singh Ex.PD/1. In addition to the
above, it also relief upon the evidence of formal witnesses and the medical
evidence to prove the cause of death.
Addl. Judge, Designated
Court, on appraisal
of oral and documentary evidence on record held that the prosecution proved
both the vital circumstances mentioned hereinabove as also other circumstances
which complete the chain of circumstantial evidence. Consistent with these
findings, the Trial Court convicted A-2 under Section 302 of the Indian Penal
Code whereas A-1 under Section 302/34 of the Indian Penal Code and sentenced
each one of them to suffer imprisonment for life and to pay a fine of Rs.1000/-
and in default RI for one year. Both the appellants were also convicted under
Section 397 of the Indian Penal Code and were sentenced to suffer RI for seven
years and to pay a fine of Rs.2500/- and in default six months RI. Both the
accused were also convicted under Section 3 of TADA and each of them was
awarded imprisonment for five years and a fine of Rs.2500/- or in default six
month's RI. All the substantive sentences were ordered to run concurrently. Out
of the amount of fine as and when realised, half of it shall be paid to the
widow of Sukhdev Singh. Aggrieved by paid to the widow of Sukhdev Singh.
Aggrieved by this order of conviction and sentence, the appellants have
preferred the appeal under Section 19 of TADA to this Court.
Before we deal with these two important circumstances, it may be stated that
learned counsel for the appellants did not and could not seriously challenge
the fact that Sutskhdev Singh met with a homicidal death. We, therefore, do not
think it necessary to set out in detail the evidence of Dr. Jagjit Kumar (PW 9)
who held the autopsy on the dead body of Sukhdev Singh and prepared the post
mortem examination report Ex.PB/1. Suffice it to mention that according to Dr. Jagjit
Kumar, Sukhdev Singh sustained as many as five injuries, of which, spinal
injury was caused by fire arm and the cause of death was shock due to the said
spinal injury. All these injuries were ante mortem. The spinal injury was
possible with shotgun since there were pellets. During the cross-examination,
he stated that bullet comes out of revolver, stengun and pistol whereas pellets
are from shotguns. In view of this medical evidence, we have no hesitation in
upholding the finding of the Trial Court that Sukhdev Singh died a homicidal
death. We, accordingly do so.
Coming to the vital vital circumstance, namely, Sukhdev Singh was last seen
alive in the company of the appellants and in order to prove this fact,
prosecution strongly relied upon the evidence of Mohinder Singh (PW 4) and Madan
Lal, PC (PW 5). Both the witnesses undoubtedly stated on oath that on 22nd
March, 1991, when they were on patrolling duty alongwith Sukhdev Singh, the
appellants came and asked Sukhdev Singh to come alongwith them to find out a
room on rent and also share a drink. Saying so, Sukhdev Singh left the
patrolling duty and went alongwith the appellants. We have gone through the
evidence of both these witnesses very carefully and we do not feel it safe to
accept the same as credible one. The main reason for discarding their evidence
is that their statements under Section 161 of Cr. P.C. came to be recorded on 8th August, 1991 after about four and a half months.
No explanation whatsoever was given by the Investigating Officer Gurmeet Singh
(PW 11) as to why their statements could not be recorded earlier. Both these
witnesses were members of the patrolling duty and even after knowing that on 22nd March, 1991, Sukhdev Singh left alongwith the
appellants and was admitted in the hospital in an injured condition, they did
not come forward to tell about this fact. It is in these circumstances, we do
not feel it safe to accept their evidence on this vital circumstance, namely, Sukhdev
Singh was last seen alive in the company of the appellants.
next circumstance strongly relied upon by the prosecution to prove the
complicity of both the appellants was the alleged dying declaration Ex.PD/1 of Sukhdev
Singh recorded by SHO Jagjit Singh (PW 6) on 22nd March, 1991 between 8.30 and
9.00 p.m. Jagjit Singh (PW 6) testified that on 22nd March, 1991, he was posted
as an Inspector/SHO, Police Station Sadar Patiala and on that day, he alongwith
SI Kuldip Singh and other police officials were going in the area of Bahadurgarh,
Seel road, in connection with patrolling duty and investigation of a case
bearing FIR No.76/91, PS Sadar Patiala. He saw Sukhdev Singh, HC in an injured
condition lying on the road side. He lifted him by giving support and made
inquiries. Sukhdev Singh made the statement Ex.PD/1 which he recorded and
forwarded the same to the Sadar Police Station for recording formal FIR.
an FIR was registered Ex.PD/2. Sukhdev Singh in his statement Ex.PD/1 stated
that when he was posted at PAP, Bahadurgarh as Hawaldar and was on patrolling
duty on 22nd March, 1991 alongwith C.Mohinder Singh (PW 4) and Madan Lal PC (PW
5) at about 8.00 p.m., Paramjit Singh (A-1) and Satnam Singh (A-2) came near
the gate of Escort and Goetze Factory, Bahadurgarh, whom, he was knowing
earlier. They told him that if he needed a room on hire, they would provide the
same and they would sit somewhere to have the snacks. Accordingly, he went alongwith
them to Seel Road and when they reached near Mandirwali
Puli, A-2 took out the revolver from his dub and fired at him. He sustained a
fire arm injuries and fell down. Thereafter, A-1 and A-2 took away his stengun
No. 20261, Batt No. 86, two magazines and cartridges and ran away. He was lying
for long time. No one came to him due to fire arm injury sustained by him. The
market was already closed but the outer lights of the shops were on. A-1 and
A-2 in connivance with each other with the intention to kill him and snatch the
arms and ammunition brought him at the place of occurrence and fired at him. He
was unable to sign as his hands were shrinking. This complaint be recorded and
action be taken.
Singh (PW 6) in his evidence stated that he recorded the statement of Sukhdev
Singh in his own words and since his injuries were bleeding, he was shifted to Rajendera Hospital, Patiala. On the way, he became semi
unconscious and did not regain consciousness till he died on 2nd May, 1991. Dr. R.P. Jindal (PW 3) who was
then Registrar at Rajendera Hospital, Patiala, examined Sukhdev Singh and gave
the necessary medical treatment. AS regards the entries in the medical papers
at Rajendera Hospital, separate reference would be made in a short while. This
witness was cross-examined at great length and after going through his evidence
and the contents of the dying declaration Ex.PD/1, neither the said evidence
nor the contents of the dying declaration inspire confidence in us to accept
the same as credible and truthful. Jagjit Singh (PW 6) admitted in his evidence
that after recording the dying declaration of Sukhdev Singh, he became semi
unconscious and was unable to speak. He further admitted that he did not record
his remarks on the dying declaration that the maker was in a fit condition to
make such a statement. Dr. Jagjit Kumar (PW 9) had stated that Sukhdev Singh
had sustained pellet injury on his spinal cord. Having regard to the medical
evidence and the admission of Jagjit Singh (PW 6) that after recording the
dying declaration Ex.PD/1, Sukhdev Singh became semi unconscious, it would be
totally unsafe to accept the testimony of this witness to hold that Sukhdev
Singh was in a fit condition to make the dying declaration. Moreover, the
contents and the manner in which all minor details were alleged to have been
given by the injured Sukhdev Singh in his dying declaration does not inspire
confidence in us to accept it as truthful. For instance, the dying declaration
apart from giving the names of his two colleagues, it mentioned their buckle
numbers and how he was tempted to go alongwith both the appellants. The maker
despite such a serious injury to the spinal cord mentioned the stengun No.
20261 including Batt No.86. We have very carefully gone through the dying
declaration Ex.PD/1 and we are satisfied that the said document cannot be
accepted as a true dying declaration of Sukhdev Singh and we will not be
unjustified if we call it a "concocted document." If this dying
declaration Ex.PD/1 is left out of consideration, there is hardly any evidence
to connect the appellants with the present crime.
Coming to the entries in the medical papers and the bed head ticket at Rajendera Hospital, what surprises us was the entry made on these papers as
"accidental". It is not at one place such an "accidental"
entry was made but also at three other places. Dr. R.P. Jindal (PW 3),
Registrar, Rajendera Hospital, Patiala, had stated that he did not make
these entries but he was also unable to account for the same.
the learned Trial Judge Expected that the appellants were supposed to give
explanation as to how the entry "accidental" was made in the medical
papers. The entire approach of the learned Trial Judge was totally erroneous on
this aspect and no explanation whatsoever in this behalf could have been
expected from the accused.
have gone through the judgment of the learned Trial Judge as well as other
materials on record and we are satisfied that the prosecution has failed to
prove both these vital circumstances and reluctantly the conviction of the
accused cannot be sustained.
For the foregoing conclusions, we allow the appeal filed by the appellants. The
impugned judgment and order of conviction passed by the Addl. Judge, Designated Court, District Jail, Nabha, on 15th February, 1996, in Sessions Case No. 250 of 12th September, 1991 is quashed and set aside and both
the appellants are acquitted of all the charges.
our order dated 8th
November, 1996, we
directed that the appellants be released forthwith if not required in any other
case. It is, therefore, not necessary to pass separate order in this regard.
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