Jaspal
Singh @ Pali Vs. The State of Punjab [1996]
INSC 1273 (8 October
1996)
M.K.
Mukherjee, S.P. Kurdukar S.P. Kurdukar. J.
ACT:
HEAD NOTE:
WITH CRIMINAL
APPEAL NO. 263 OF 1996 Darshan Singh and Ors. V. State of Punjab
The
appellants in these two criminal appeals before us were sent up for trial
before the Additional Judge, Designated court. for the offences punishable
under Sections 148, 302/149 of the Indian penal Cods read with Sections 3/4 of
the Terrorist and disruptive Activities (Prevention) Act.
(for
short TADA')for having committed the murder of Jasbir Singh @ Bhure on the
intervening night of 22/23rd July, 1991 at his village Shanurki, Police
Station, Nabha.
2. The
brief facts of the prosecution case are as follows:- Gurjant Singh (PW3). the
father of Jasbir Singh (since deceased) lodged an FIR alleging that he and his
five brothers were residing in their houses having a common boundary wall
whereas his seventh brother Sarup Singh was residing separately in the village.
On the fateful night of 22nd
July, 1991, he was
sleeping in the courtyard alongwith his two sons, namely, Gurbinder Singh and Jashbir
Singh @ Bhura (since deceased). Two of his. nephews were also sleeping in the
same courtyard. The ladies and children were sleeping inside the rooms. His
younger brother Ram Singh was sleeping on the roof of the house. At about 12.30 a.m., seven terrorists entered in his house by opening
the gate and scaling over the wall of whom five were armed with pistols and two
were having Sten guns. One of the terrorists who was Known as `Saba' came forward and demanded a licensed rifle and Rs.
1,00.000/-from him. He replied that he was neither having a rifle nor cash. The
terrorists then entered into the rooms and searched all the iron boxes lying
therein and thereafter came out in the courtyard. One of the terrorists then
asked `where was Jasbir Singh @ Bhura and to which terrorist organisation they
belonged?'. Gurjant Singh (PW 3) retaliated and asked them as to which organisation
they belonged? The terrorists then left the house telling Gurjant Singh (PW 3)
that they would come back again after a few minutes and by that time, he should
keep the amount of Rs. 1,00.000/-ready.It was further alleged by Gurjant Singh
(PW 3) that after a few minutes, all these terrorists came bark to his house
and enquired about the cash amount. They also asked Jasbir Singh to accompany
them to which Gurjant Singh (PW 3) and his family members pleaded for mercy and
told them not to take him away. The terrorists then told Gurjant Singh (PW 3)
and his family members that Jasbir Singh would be let off soon. Accordingly,
the terrorists carried Jasbir Singh with them and within 5 to 7 minutes, a fire
arm shot was heard from the direction of the street.
Because
of the apprehension to their lives, they did not go to the spot immediately but
after some time, when they reached there, they saw Jasbir Singh was lying dead
with the fire arm injury on the left side of his chin near the house of his
brothers pal Singh and Mohinder Singh.
3. It
is then alleged by Gurjant Singh (PW 3) that because it was the night time they
did not go to the police station immediately and waited near the dead body
until the day dawned. He then contacted Bant Singh, the Sarpanch of the village
and thereafter they went to lodge the FIR at the police station. SI Hitinder
Singh, SHO, Police station, Sadar Nabha. registered the crime. He alongwith a
police party reached at the place of occurrence and started the investigation.
4. At
the outset, it may be stated that since the names of the terrorists were not
known to any of the family members including Gurjant Singh (PW 3). only
description thereof was given in the complaint. The dead body of Jasbir Singh
was then sent for post mortem examination. During the course of investigation
on 27th July, 1991, Chhota Singh (PW 7), the Sarpanch stated that the terrorist
(accused) had come to his house and confessed the crime. The appellants were
thus found to be the terrorists who on the fateful night committed the Crime in
question, and came to be arrested on 19th September, 1991. Saudagar Singh (A-2)
while in custody made a statement under Section 27 of the Evidence Act which
led to the recovery of Pistol alongwith cartridges. The appellants Jaspal Singh
(A-1) and Rajinder Singh (A-3) while in police custody also made statements
which led to the recovery of fire arms. After completing the investigation, a
charge sheet came to be filed in the Designated Court, Sangrur against five accused persons.
5. The
appellants denied the accusation against them and pleaded that they are
innocent and have committed no offence. They, therefore, prayed that they be
acquitted.
6. The
prosecution in support of its case examined as many as ten witnesses, of whom. the
star witnesses were Gurjant Singh (PW 3)-the complainant, Chhota Singh (PW 7),
and the sarpanch before whom the appellants alleged to have confessed their
guilt.
7. At
the conclusion of the trial, the learned Additional judge of the Designated Court, accepted the evidence of Gurjant
Singh (PW 3) and Ram Singh (PW4) as trustworthy and reliable, although they
identified the appellants for the first time in the court. The learned trial
Judge also accepted the evidence of Chhota Singh (PW 7), before whom Jaspal
Singh (A-1) alongwith other appellants had confessed the guilt on 27th July, 1991, as truthful. In addition to the
above evidence, the learned Trial' judge also relied upon the evidence of
recovery of wallet from the kitchen garden of the complainant wherein
photograph of Jaspal Singh (A-1) was found. On appraisal of evidence on record,
the learned Trial Judge held that the prosecution has proved the complicity of
all the appellants in the present crime and accordingly convicted all the rive
appellants under Sections 302/149 of the Indian penal Code and Section 3/4 of
TADA and sentenced each one of the appellants to suffer rigorous imprisonment
for life and to pay a fine of Rs. 2.000/-in default of payment of fine to under
go further rigorous imprisonment for a period of two years. The Trial Court
also convicted and Sentenced each one of the appellants to undergo rigorous
imprisonment for a period of three Years under Section 148 IPC. The substantive
sentences were ordered to run concurrently. It may also be stated that Saudagar
Singh and Rajinder singh (the appellants Nos. 3 and 4 in criminal Appeal No.
163 of 1996) were tried in two connected special sessions Case No. 73 of
4-4-1991 respectively for the offences punishable under Section 25 of the Arms
Act read with Section 5 of TADA and were sentenced to under go rigorous
imprisonment for five years and to pay a fine of Rs.1,000/-; in default of
payment of Fine, to under go further rigorous imprisonment for one year. The
impugned judgments and orders are dated 31st October, 1995.
8.
Aggrieved by the judgments and orders dated 31st October, 1995 passed by the
designated Court, Sangrur, Jaspal Singh, the appellant has filed Criminal
Appeal No.268 of 1996 whereas the other four appellants have filed Criminal
Appeal No. 1/03/96 in this Court challenging the legality and correctness
thereof. Since both these appeals arise out of a common judgment, they are
being disposed of by this judgment.
9. Mr.
R.S. Sondhi the Learned Counsel appearing for the appellants in both the
appeals urged that although the were arrested on 27th July, 1991 yet no T.I.
Parade was held. The identity of the appellants was sought to be established in
the Court. Such identification was totally unsafe and could not form the basis
of their conviction. He also urged that Gurjant Singh (PW 3) had admitted in
his evidence that the terrorists who had entered into his house on the fateful
night were not known to him and. therefore, they could not have been identified
by him. On this premise, the evidence of Gurjant Singh (PW 3) does not take the
prosecution case any further. He also urged that the identity of Jaspal singh
(A-1) sought to be proved by the prosecution with reference to the seizure of
wallet from the kitchen garden of the complainant wherein his photograph (Jaspal
Singh ) was found,is again a very weak piece of evidence and on such evidence,
his conviction is unsustainable. He further urged that the evidence of Chhotu
Singh (PW 7) to prove the alleged extra-judicial confession having been made by
jaspal Singh (A-1) in the presence of other coaccused is totally untrustworthy
and it was highly improbable that the appellants would have gone to the house
of Chhota Singh (PW 7) to confess their quilt. counsel, therefore, urged that
the impugned judgments and orders of convictions and sentences are
unsustainable and accused be acquitted.
10. Smt.
Hemantika Wahi, learned Advocate appearing for the respondent supported the
impugned judgment and order.
11. At
the outset, it may be stated that there was no challenge before of the appellants
that Jasbir Singh (since deceased) died due to fire arm injuries sustained by
him during the night intervening between 22/23rd July, 1991. It is, therefore,
needless to refer to the evidence of Dr. Shiv Kumar Garg (PW 2) and his autopsy
report. We have gone through the evidence of Dr. Shiv Kumar Garg (PW 2) and see
no hesitation in holding that Jasbir singh died because of ante mortem fire arm
injuries sustained by him.
12. We
have carefully considered the submissions urged on behalf of the appellants and
in our opinion each one of them deserves to be accepted.
13. It
is common premise that although the appellants were arrested on 27th July.
1991. yet the investigating agency did not hold T.I. parade. The identification
of the appellants in the Court made by Gurjant Singh (PW 3) and Ram Singh (PW
4) cannot be accepted with certainty as reliable identification. If this be so,
the attempt of the prosecution to establish the identity of the accused in the
present crime has to be rejected and, therefore, it is not possible to connect
any of the appellants with the present crime.
14. coming
to the second contention of Mr. Sodhi, we agree with him that finding of the
photograph in the wallet which was seized during the investigation from the
kitchen garden of the complainant is again a weak piece of evidence. On such
evidence. it is difficult to connect Jaspal Singh (A-1) with the present crime.
15.
The third contention of Mr. Sodhi Viz., that it is highly improbable that Jaspal
Singh (A-1) would have gone to this witness alongwith his co-accused to confess
the guilt, is equally formidable. Chhota Singh (PW 7) has not give any reason
as to why and how Jaspal Singh (A-1) and other co- accused have reposed such a
confidence in him and confessed their quilt. After going through the evidence
of Chhota Singh (PW 7), we do not find it safe to hold any of the appellants
guilty in the present crime.
16. In
View of the aforesaid conclusion, it is not possible to sustain the convictions
and sentences of any of these appellants. Result there of is that both the
appeals succeed. The impugned judgments and orders of convictions and sentences
are quashed and set aside and the appellants are acquitted. The appellants, who
are in jail, be set at liberty forthwith, if not required in any other case.
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