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CASE NO.: Appeal (crl.)  477 of 2007

PETITIONER: Dilbagh Singh

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 27/05/2008

BENCH: S. B. Sinha & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T Reportable

Lokeshwar Singh Panta, J.

1.      The appellant has filed this appeal under Section 19 of  the Terrorist and Disruptive Activities (Prevention) Act, 1987  against the final judgment and order dated 26.02.2007 passed  by the Additional Judge, Designated Court, Maximum Security  Jail, Nabha (Punjab) in Sessions Case No. 2 of 15.04.2004  whereby and whereunder the Designated Court convicted and  sentenced the appellant for offences punishable under Section  302/382 of the Indian Penal Code [for short \021the IPC\022] and  Section 5 of the Terrorists and Disruptive Activities  (Prevention) Act, 1987 [for short \021TADA\022]. 2.      Briefly stated, the case of the prosecution is that on  9.5.1992, Kirandeep Singh- the complainant (P.W. 7), son of  Balkar Singh (P.W. 4), went to Inspector Swaran Singh, the  Station House Officer (P.W. 15) who along with other police  personnel was on patrol duty at Atalan bus stand and  reported that he is a resident of village Atalan, P.S. Ghagga,  District Patiala.  They are four brothers, and two of his elder  brothers are residing at Ludhiana, whereas he along with his  third brother Jagmail Singh - the deceased and father Balkar  Singh (P.W. 4) are residing in  village Atalan and are engaged  in the occupation of farming.  It was his case that due to  terrorism activities in the area, the Government has provided  two rifles, one .303 bore and other 7.62 bore with cartridges to  their family for self-protection and security.  On 9.5.1992, at  about 7:00 p.m. he and his brother \026 Jagmail Singh were  returning to their house from the fields carrying the said arms  (complainant was armed with .303 and his brother armed with  7.62 bore).   Dilbagh Singh, the accused-appellant along with  Jasbir Singh and one more tall young man armed with fire  arms suddenly appeared before them near the chowk of their  house.  Dilbagh Singh and Jasbir Singh are the residents of  the same village.  They both opened fire on Jagmail Singh who  on receipt of fire arm injuries fell down on the ground.   Thereafter, third accomplice, picked up the rifle of Jagmail  Singh and shot at Jagmail Singh who died on the spot.  The  complainant took shelter by the side of a water channel and  started firing in the air to scare the accused.  The accused  after sometime stopped firing.  The complainant rushed to the  place where Jagmail Singh was lying dead and his 7.62 bore  rifle was taken by the accused.                     3.      Balkar Singh (P.W. 4) had witnessed the entire incident

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from his house.  He rushed to the scene of occurrence.   According to the complainant, the motive behind the murder  was that before joining the main stream of the society his  brother Jagmail Singh \026 the deceased used to participate in  the extremist activities with the accused.  The deceased later  on abandoned the extremist activities and got married.  The  accused still wanted the deceased to join their extremist  activities, but since he refused to do so, the accused killed him  on the count.                      4.      The complainant asked his father, Balkar Singh (P.W. 4)  to guard the body of Jagmail Singh and himself went to P.S.  Ghagga to lodge a report of the incident of murder to the police  but he met the SHO on the way where his statement (Ex.P1)  was recorded.  The SHO endorsed Ex. P1 to the incharge of the  Police Station for registration of the case, on the basis of which  FIR No. 27 (Ex. P2) dated 09.05.1992 came to be registered for  offences punishable under Sections 302/384 read with  Section 34 IPC and Section 5 of TADA and Section 25 of the  Arms Act.  Inspector Swaran Singh (P.W. 15) rushed to the  place of occurrence and inspected the spot and informed his  superior officers and Army Officers requesting them to reach  at the spot.  He prepared the inquest report (Ex. PA) on the  body of the deceased which was identified by Joginder Singh  (P.W. 2) and ASI Jarnail Singh (P.W. 17), residents of the same  village.  On 10.5.1992, the body of the deceased was sent to  Civil Hospital, Samana, with inquest and an application (Ex.  PL) for conducting the post-mortem examination through  police C. Ram Dia 1041 and C. Karnail Singh 2250.   5.      On inspection of the spot, the Investigation Officer took  into possession: (i) blood-stained earth vide recovery memo  (Ex. PB); (ii) two empty cartridges of 7.62 bore vide recovery     memo (Ex. PC); (iii) 20 empty cartridges of AK-47 rifle near the  dead body vide recovery memo (Ex. PD); and (iv) 7 empty  cartridges of .303 bore near from the dead body vide recovery  memo (Ex. PE).  All the articles were packed and sealed with  seal SS in the presence of Mohinder Singh (P.W. 3).  A rough  site plan of the place of occurrence was prepared and marked  Ex. PM.  Statements of witnesses were recorded.  All recovered  articles were later on deposited with MHC Balwinder Singh  (P.W. 12) at P.S. Ghagga.   6.      On 10.5.1992 at 10:00 a.m., post mortem examination on  the body of the deceased was conducted by Dr. Satish Arora  (P.W. 5) who in his report (Ex.PF) reported that the cause of  death of Jagmail Singh was gun shot injuries to brain and  right lung resulting in his death which were sufficient to cause  death in the ordinary course of nature.  All the injuries were  ante-mortem in nature.  7.      The accused Dilbagh Singh @ Bagha was arrested on  17.9.1999 by Inspector Budh Ram (P.W. 14) who conducted  the personal search of the accused and prepared personal  search memo and disclosed the grounds of arrest to the  accused vide separate memo.  Blood-stained earth (Ex. PB)  was sent to the Chemical Examiner whereas empty cartridges  (Exs. PC, PD & PE) were sent to Forensic Science Laboratory,  Chandigarh, Punjab.  On receipt of the report of the Chemical  Examiner and after completion of investigation, charge sheet  was prepared and filed against accused Dilbagh Singh under  Sections 302/382/34 IPC, Section 25 of the Arms Act and  Section 5 of TADA.  The accused pleaded not guilty to the  charges and claimed to be tried.  8.      The prosecution in support of its case examined as many  as 18 witnesses namely,:  Dalip Singh (P.W. 1) was a witness  of extra-judicial confession allegedly made by accused Dilbagh  Singh, but he did not support the prosecution case;  Joginder

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Singh (P.W. 2) identified the dead body of Jagmail Singh,  Mohinder Singh (P.W. 3) resident of the village in whose  presence the empty catridges and blood stained earth were  taken into police possession  from the spot by the Investigating  Officer, proved the recovery memos in this regard Exs. PC, PD  and PE.  Balkar Singh (P.W. 4), father of the deceased is an  eye witness of the occurrence; Dr. Satish Arora (P.W. 5),  Medical Officer, who conducted the post mortem on the dead  body of Jagmail Singh; MHC Manmohan Singh (P.W. 6)  produced the original FIR register of this case; Kirandeep  Singh (P.W. 7) the informant is the brother of the deceased; C.  Tejinder Singh (P.W. 8) took the sealed parcels of catridges to  the Forensic Science  Laboratory, Chandigarh, Punjab; HC  Kuldeep Singh (P.W. 9) proved the death of co-accused Jasbir  Singh in police encounter and FIR No. 41 dated 29.5.1992 in  this regard stood registered at P.S. Patran; SI Harminder  Singh (P.W. 10) partly investigated this case; C. Hardam Singh  (P.W. 11)  took the parcels of the blood stained earth and  blood stained clothes of the deceased and deposited the same  in the office of Chemical Examiner, Patiala and MHC  Balwinder Singh (P.W. 12) with whom the case property was  deposited in the Malkhana by the Investigating Officer,  P.W.  12 also proved that one rifle bearing No. 1050 with 50 live  catridges along with other rifle of 7.62 bore and 25 catridges  were issued to the complainant party for their security.  ASI  Grudev Singh (P.W. 13) also partly investigated this case  proved the death of co-accused Jasbir Singh @ Pappu and  Bawa Singh (the third co-accused with the appellant) in police  encounter in some other case, Budh Ram (P.W. 14) (since  retired) Inspector of Police arrested accused Dilbagh Singh @  Bagha on 17.9.1999 and proved his personal search memo  and the grounds of arrest memo; Inspector Swaran Singh  (P.W. 15), Investigating Officer of this case proved the  investigation part of this case; Balbir Singh (P.W. 16)  proved  the report of the Chemical Examiner Exs PW16/A; Jarnail  Singh (P.W. 17) the then Ahlmad in the court of Judicial  Magistrate, First Class and Pardeep Kumar (P.W. 18), In- charge, FSL, Chandigarh, Punjab stated that the empty  catridges could not be examined as the weapons were not  recovered in this case.   

9.      The accused in his statement recorded under Section 313  Cr.P.C. denied the prosecution case and pleaded innocence.    He stated that the deceased was a terrorist and was killed by  the Police in an encounter and that he has been falsely  implicated in this case by the Police to save its own skin.   Three defence witnesses namely, SI Harminder Singh (D.W. 1),  Darshan Singh (D.W. 2) and Amar Singh (D.W. 3) all residents  of village Atalan were examined.  The trial court, on  appreciation of the oral and documentary evidence found the  accused guilty of the offences punishable under Section  302/382 IPC and Section 5 of TADA and, accordingly,  convicted and imposed the following sentences upon him  which shall run concurrently:- OffenceS IMPRISONMENT Fine  (Rs.) in default oF payMENT  OF FINE  U/S. 302 IPC Imprisonment  for life 5,000/- RI for 3 months

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U/S. 382 IPC 5 Years R.I. 2,000/- RI 1 month U/S. 5 TADA 5 years R.I. 2,000/- RI 1 month        10.     Aggrieved by and dissatisfied with the said judgment and  order dated 26.02.2007 passed by the Additional Judge,  Designated Court, Maximum Security Jail, Nabha, the  appellant has filed this statutory appeal before this Court.                     11.     We have heard learned counsel for the parties and with  their assistance, we have examined the judgment of the trial  court and re-apprised the entire oral and documentary  evidence  placed on record.                    12.     Mr. Sarup Singh, learned senior counsel appearing for  the appellant, assailed the judgment of the trial court, inter  alia, contending: (i) that the presence of Kirandeep Singh \026  complainant (P.W. 7) at the place of occurrence of the incident  along with the deceased is highly doubtful because the  informant did not try to save his brother and the fact that the  accused persons who allegedly were fully armed would have  spared the complainant especially when he himself was having  a .303 bore rifle cannot be accepted; (ii) that even the conduct  of Balkar Singh (P.W. 4) \026 father of the deceased was not  natural as he too did not make any attempt to save his son  from attack allegedly made by the accused; (iii) that as the  trial court has not convicted the appellant for charged offence  under Section 25 of the Arms Act which technically would  amount to acquittal for the said offence, therefore, on the  same set of evidence conviction of the appellant for offences  under Section 302/382 IPC and Section 5 of TADA by using  the same weapons is not sustainable; (iv) that the alleged  incident had occurred at about 7:00 p.m. at the chowk of the  village, it is unbelievable that no independent witness from the  village has been examined by the prosecution to corroborate  the testimony of P.Ws. 4 and 7 who are highly interested  witnesses; and (v) that the evidence of defence witnesses has  wrongly been ignored by the learned trial court who have  proved on record that the deceased was murdered by the  police in an encounter and the complainant at the instance of  the Police has implicated the appellant in a false case because  of enmity.                13.     Mr. Ajay Pal, the learned counsel appearing on behalf of  the respondent-State on the other hand submitted that the  reasons given by the trial court for recording the order of  conviction of the appellant are based upon proper appreciation  of the evidence led by the prosecution in the case.  He then  submitted that merely because P.Ws. 4 and 7, the two eye   witnesses are relatives of the deceased, their testimony   cannot be disbelieved and discarded on this premise only as  their evidence is cogent, consistent and unblemished with the  hypothesis of the guilt of the appellant and this Court should  be slow to interfere in the well-reasoned and well-merited  judgment of the trial court.  14.     We have given our anxious and thoughtful consideration  to the respective contentions of the learned counsel for the  parties.  The arguments put forward by Mr. Sarup Singh  although are very attractive yet we find ourselves unable to  agree with the same.

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                  15.     On independent scrutiny of the entire evidence produced  on record, more particularly the testimony of eyewitnesses  namely, Balkar Singh (P.W. 4) - father and informant  Kirandeep Singh (P.W. 7) \026brother respectively of the deceased,  it stands fully proved that on 9.5.1992, around 7:00 p.m.,  P.W. 7 and the deceased were returning to their house after  doing routine agricultural pursuits in the fields.  Dilbagh  Singh the appellant along with Jasbir Singh and one more  unknown accomplice armed with fire arms suddenly came and  stood in front of them near the chowk located near their house  and opened fire at Jagmail Singh and shot him dead.  The  unknown accomplice picked up 7.62 bore rifle of Jagmail  Singh and started firing shots at the body of Jagmail Singh -  the deceased.   P.W. 7 took shelter behind the cover  surrounding the water channel and opened fire in the air to  scare the accused and after a short while the accused stopped  firing and fled away from the place of occurrence.  P. W. 7  rushed to the spot where his brother was lying dead and his  rifle was found missing.  Both these witnesses deposed with  one voice that it was the appellant accompanied by Jasbir  Singh a resident of their village and one more unknown  accomplice who murdered the deceased and the motive behind  the  killing of Jagmail Singh was that he was a member of  extremist activities with the appellant, but later on  the  deceased joined the main stream of the society and left  extremist activities which offended Dilbagh Singh who wanted  the participation of Jagmail Singh in the extremist activities  but the deceased refused to rejoin their gang.  The deceased  after joining the main stream of the society also got married.   The evidence of the eye witnesses could not be shattered by  the prosecution and their evidence has been found  trustworthy, reliable and free from any doubt.                                                                            16.     Dr. Satish Arora (P.W. 5), conducted the post-mortem  examination on the body of the deceased Jagmail Singh and  found the following injuries:- \023(1) Gun-shot injury: (a)     Wound of entry \026 .6cm x .6cm over  the right temporal region above the  pinna.  Margins inverted, blackened,  collar of abrasion present around the  wound.

(b)     Wound of exit \026 10cm x 10cm on the  left front temporal region, margins  averted.  Multiple fractures skull  bones and brain matter coming out of  the wound. (2)      (a)     Wound of entry - .6cm x .6cm on the  right scapular region.

(b)     Wound of exit \026 2.5cm x 2.5cm on the  front aspect in its upper 1/3rd.         (3)      (a)     Wound of entry - .6cm x .6cm on the  right mid thoracic region.

(b)     Wound of exit \026 2.5cm x 2.5cm on the  front of chest in its lower 1/3rd.               (4)         (a)     Wound of entry - .6cm x .6cm on the  right leg in its lower 1/3rd.

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(b)     Wound of exit \026 8cm x 8cm on the back of  right leg in its upper 1/3rd.\024

As deposed before the court that there were multiple fractures  of skull bone, brain matter was badly damaged; there was  haemothorax on right side; the abdomen of the deceased was  healthy, stomach was containing semi-digested food material  and, in his opinion, the cause of death of Jagmail Singh was  gun shot injuries to brain and right lung, which were sufficient  to cause death in the ordinary course of nature.  All the  injuries were ante-mortem.

17.     MHC Kuldip Singh (P.W. 9) of Police Station Patran and  ASI Gurdev Singh (P.W. 13), have proved on record that Jasbir  Singh and Bawa Singh, accomplices of Dilbagh Singh were  killed in police encounter in regard to another case FIR No. 41  dated 29.5.1992 registered against them under Section 307,  148, 149 IPC, Section 25 Arms Act and Section 5 of TADA at  P.S. Patran, whereas Dilbagh Singh was arrested in this case  on 17.7.1999 by Budh Ram(P.W. 14).

18.    The deposition of MHC Balwinder Singh (P.W. 12)  Incharge of the Malkhana of P.S. Ghagga would prove that as  per the report of P.S. Ghagga, i.e. DDR No. 10 dated 5.4.1992  one rifle .303 bore bearing no. 1050 with 50 live cartridges  was supplied to Balkar Singh (P.W. 4) and another rifle of 7.62  bore having butt No. 476 with 25 cartridges was entrusted to  Kirandeep Singh ((P.W. 7), under the BDS Scheme for the  protection of their personal life and property and safety of the  life of other members of the family from the attack of the  terrorists who had been extending threats to them.  He  deposed that on 9.5.1992 rifle 7.62 bore having butt No. 476  was said to have been snatched by the terrorists from the  possession of the deceased and that the entire case property  was deposited by Inspector Swaran Singh (P.W. 15)  - SHO  P.S. Ghagga, with him with seals intact and the same were  sent to the office of the Chemical Examiner through Constable  Hardam Singh (P.W. 15), whereas the parcels of empty  cartridges were sent by him to the Forensic Science  Laboratory, Chandigarh, Punjab, but the same could not be  got compared as the fire arms used for commission of the  crime could not be recovered from the accused.  It is his  evidence that so long as the parcels remained in his  possession, he neither tampered with them nor allowed any  other person to tamper with the same.  

19.     On independent scrutiny of the evidence of P.Ws. 4 and 7  we find that they are the truthful witnesses who have  helplessly witnessed the crime from the close range but could  not help the deceased because of the sudden attack on him by  the accused who were three in number with deadly fire arms.  P.W. 7 fortunately protected himself by taking shelter by the  side of the water channel as he could not take proper position  and target the assailants with his fire arm and he could only  succeed in firing shots in the air so that he could protect  himself and when he looked at his brother the assailants had  already done their job.  P.W. 4 at the relevant time was about  65 years of age and was unarmed while standing on the  terrace of his house which fact itself was enough to prove that  he could not target the assailants to save his son from their  brutal attack.  It was but natural that under such fearful and  dangerous circumstances it could not be expected from people  of ordinary prudence such as P.Ws. 4 and 7 that they could  encounter with the terrorists who had come with pre-

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meditated plan to take revenge with the deceased who turned  down their command of not joining the terrorist activities in  the areas of operation.  We do not notice material  contradiction in the ocular and medical evidence appearing on  record. The evidence of P.W. 4 and P.W. 7 finds corroboration  from the post mortem report (Ex. PF) of the deceased which  proves that the assailants had used deadly fire arms and as  many as four direct gun shot injuries were inflicted on the  body of the deceased which resulted in 8 injuries of the  wounds having entry and exit of the gun shots.  Added to it,  there were also multiple fractures of skull bone of the  deceased and brain matter was badly damaged as deposed by  Dr. Satish Arora (P.W. 5).   20.      We have gone through the statements of D.Ws. 1, 2 and  3 who have admitted in the cross-examination that they did  not know how Jagmail Singh died.  They have not seen the  occurrence nor were they present at the time of occurrence at  the spot.  They stated that there was some murmuring in the  village that Police might have killed deceased Jagmail Singh.   Further, these witnesses have never reported to the Police or  higher authorities that they have heard that Jagmail Singh  was killed by Police authorities or that the accused has been  falsely implicated in this case.  They have deposed in the court  in favour of the appellant for the first time in the year 2007  whereas the murder of Jagmail Singh was committed on  9.5.1992 in front of the home of P.W. 4 in the same village to  which the defence witnesses do belong.  The trial court has  rightly come to the conclusion that the evidence of defence  witnesses was of no help and assistance to the appellant to  prove that he has been falsely implicated by P.Ws. 4 and 7 in  the case on hand.  20.     Having given our careful consideration to the above- stated submissions made by the learned counsel for the  parties and in the light of the evidence discussed above, it  must be held that the evaluation of the findings recorded by  the trial court do not suffer from manifest error and improper  appreciation of evidence on record warranting any interference  in this appeal.  21.     In the result, for the afore-stated reasons, we find that  there is no merit in the appeal and it is, accordingly,  dismissed.