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PETITIONER: HARBHAJAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       04/03/1997

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      The appellant  along with  two other  acquitted accused persons was put up for trial for an offence punishable under Section 302/84 IPC for having committed the murder of Rajpal Singh. Acchar Singh (A-1) is the father of Kaval Singh (A-2) and Harbhajan  Singh (A-3). The appellant. The learned trial court acquitted  A-1 and A-2 (which has affirmed by the High Court in  the   appeal preferred  by the  State)  and  their acquittal is  not the subject matter of challenge before us. The appellant  was, however  convicted under Section 302 IPC and was  sentenced to  suffer life imprisonment and to pay a fine of  Rs. 10.000/-, in default of fine to undergo further rigorous imprisonment  for six  months. This  appeal  arises under the following circumstances.      Nirmal Singh  was living  with  his  father  and  other members of  his family  on the  outskirts of his fields at a distance of  about one  mile from  the abadi  of his village Santuwala. The  tubewell of  the accused  persons was  at  a distance of  1-1/2 to  2 killas from the residence of Nirmal Singh. it  is alleged  by the  prosecution that  on June 12, 1985 at  about 6.30  p.m. Bhupinder Singh (P.W.2) Along with his brother  Rajpal Singh (since deceased) came to the house of Nirmal Singh (P.W.3) who happened to be the co-brother of Bhupinder Singh.  They had  come to  Nirmal Singh to arrange labour for  the purpose  of planting  paddy  crop  in  their fields at  village Jheetha.  Gurdev  Singh,  the  father  of Nirmal Singh and Rajpal Singh, Rajpal Singh proceeded to the tubewell of  A-1 leaving behind Bhupinder Singh in the house of Nirmal  singh. It  is alleged  by  the  prosecution  that within a  short time they heard a roula from the side of the tubewell of  A-1 and  also overhead  A-1 saying  that Rajpal Sing should  not be allowed to escape. When they came out of the house  they noticed  that the  appellant and  two  other acquitted person  were chasing  Rajpal Singh  while  he  was running towards  his house.  They further  noticed that  the appellant and  Kewal Singh (A-2) were armed with rifle and a single barrel. 12 bore gun. when Rajpal Singh tried to scale over the  wall and about to jump into the compound of Nirmal Singh, the  appellant fired from his rifle causing a firearm

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injury to  Rajpal Singh,  Its  is  further  alleged  by  the prosecution that  Kewal Singh  (A-2) also  fired through his rifle and  as a result of these fire arm injuries, the upper portion of  the head  of Rajpal  Singh was blown off. Rajpal Singh fell  down and  died  on  the  spot.  Bhupinder  Singh (P.W.2) and  Nirmal Sigh (P.W.3) then reached near the place occurrence. Bhupinder  Singh went  to the village Jheetha to inform Gurdev  Singh, the  father of  Rajpal  Singh.  Nirmal Singh and the father of Rajpal sing then left for the police station, Zira  and upon reaching there during night at about 12.10 a.m.,  they lodged the report Ex. P.D. on the basis of which a  formal FIR Ex. PD/1 was recorded. ASI Chandan Singh (P.W.10) left  along with  them and on reaching the place of occurrence he  started the  investigation. during  the  spot panchnama three  empty cartridges  of rifle  (Ex. P1  to P3) were seized  vide seizure  memo Ex.PF. One bullet Ex. P4 was also found embedded on the outer side of the well over which the deceased  had scaled.  It was  also seized  vide seizure memo Ex.PG. The empties were forward to the ballistic expert along with the rifle which was recovered from the possession of the  appellant on  June 16,  1985. The  ballistic expert, however could not give any definite opinion about the use of bullet Ex.P4.  The autopsy on the dead body was conducted by Dr. J.S.  Gujral (P.W.1)  and he found a big lacerated wound 28 cms"  x 18  cms. on  the right side of the head of Rajpal Sigh and  the brain  matter was coming out. The bones of the right side  of the head were found missing. After completing the necessary  investigation the  appellant along  with  tow other acquitted  accused persons was put up for trial for an offence punishable  under Section  302/34 IPC. The appellant was also separately charge sheeted for an offence punishable under Section 25 of the Arms Act.      The appellant  and tow  other acquitted accused persons denied the  allegations levelled  against them  and  pleaded that they  have been  falsely implicated  at the instance of Nirmal Singh  (P.W. 3)  who was on inimical terms with them. They pleaded that they are innocent and be acquitted.      The prosecution  in support  of its  case mainly relied upon the  evidence of  Bhupinder Singh  (P.W.2)  and  Nirmal Singh (P.W. 3) as the witnesses of facts. In addition to the above  evidence   the  prosecution  also  relied  upon  spot panchnama, seizure  memos, report  of the  ballistic experts and the  medical evidence  of Dr.  J.S. Gujral  (P.W.1). the defence in  support of  their case  examined Dr.  J.S. Dalal (D.W. 1) as the ballistic expert.      The Sessions  Judge, Ferozepur on appraisal of the oral and  documentary  evidence  on  record  concluded  that  the prosecution had  brought home the guilt of the appellant for committing  the  murder  of  Rajpal  Singh  and  accordingly convicted him  under Section  302 IPC  and sentenced  him to suffer imprisonment  of life  and  to  pay  a  fine  of  Rs. 10,000/-, in  default of  payment of fine to undergo further regorous imprisonment for six months, out of the fine of Rs. 10,000/- if  recovered, Rs.  8,000/- be  paid to the next of the kin  of Rajpal Singh as compensation . The appellant was also convicted  under Section  25 of the Arms Act for having been found  in possession  of a  315 bore rifle belonging to his father  (A-1)  in  a  separated  trial  and  accordingly sentenced him to suffer rigorous imprisonment for two years.      The Learned  Sessions Judge however gave the benefit of doubt to  A-1 and  A-2 and acquitted them of all the charges levelled against  them. The appellant (A-3) aggrieved by his convictions on  both the  e counts  preferred  tow  criminal appeals  before   the  Punjab  and  Haryana  High  Court  at Chandigarh. The  State of  Punjab also  preferred an  appeal

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against the  order of  acquittal in respect of A-1) and A-2. All the three appeals were heard together and the High Court by its judgment and order dated April 30, 1978 dismissed all the appeals.  The appellant  being aggrieved by the order of conviction and sentence passed against him under Section 302 IPC has filed this appeal by Special Leave.      Mr. R.L.  Kohli Learned  Senior  Counsel  appearing  in support of  this appeal  urged that  the courts  below  have erred in  convicting the  appellant on the basis of evidence of Bhupinder  Singh (P.W.2)  and Nirmal  Singh (P.W.3)  when their evidence  was not found credible as against A-1 and A- 2. He  then urged  that the medical evidence does not fit in wit the report of ballistic expert and there is not positive evidence on------conclude  that Rajpal Singh died because of the bullet  which was  alleged to  have been  fired  by  the appellant. He further urged that when both the eye witnesses have  categorically   state  that   the  appellant  and  A-2 (acquitted) had  fired through  their fire  arms  on  Rajpal Singh causing  firearm injuries  to him,  it  was  extremely doubtful to  conclude as  to whose  bullet or  cartridge hit Rajpal Singh  resulting  into  blowing  off  his  head.  He, therefore, submitted  that the  appellant is entitled to the benefit of doubt and he be acquitted.      We were  taken though the judgments of the courts below and the  relevant evidence on record. In our opinion none of these contentions  in tenable. Both the learned courts below have found  that the evidence of Bhupinder Singh (P.W.2) and Nirmal Singh  (P.W.3) was trustworthy and stood corroborated by the  medical evidence as also the report of the ballistic expert. We  see no  infirmity  or  illegality  in  the  said finding. Both  the eye  witnesses have  testified  that  the appellant had  fired from  his rifle  and the  bullet hit on head was  blown off and as a result thereof the doctor could not give the opinion as regards type of weapon that was used in the  used  in  the  present  crime.  The  report  of  the ballistic expert clearly indicated that the empties Ex.P1 to P3 could  be fired from the rifle Ex. P8 which was recovered from the  possession of  the appellant.  The report  of  the ballistic expert in out opinion supports the evidence of two eye witnesses.      We are  also unable  to accept  the contention that the appellant be  given the benefit of doubt as was given to A-1 and A-2.  The only  evidence against  A-1 is  that he gave a lalkara. The  report of the ballistic expert did not support the prosecution  in regard  to the  complicity of  A-2 and , therefore, they  were given the benefit of doubt and came to be acquitted. In view of these findings it is to possible to accept the  contentions raised  on behalf  of the  appellant that he be given the benefit of doubt.      It was  then contended  on behalf of the appellant that Nirmal  Singh   (P.W.3)  was  on  inimical  terms  with  the appellant and,  therefore, he  was falsely implicated in the present crime.  We are  unable  to  accept  this  contention because both  the courts  below have  concurrently held that the evidence  of Nirmal Singh (P.W. 3) is trustworthy we see no reason to interfere with the said finding.      In view  of the  above conclusions we re of the opinion that this  Criminal Appeal  is devoid  of any  merit and the same is  dismissed. The  appellant  who  is  on  bail  shall surrender to  his bailbonds  to serve out the remainder part of his sentences.