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PETITIONER: TEJA SINGH

       Vs.

RESPONDENT: MUKHTIAR SINGH & ORS.

DATE OF JUDGMENT11/08/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) NANAVATI G.T. (J)

CITATION:  1995 AIR 2411            JT 1995 (7)   319  1995 SCALE  (4)703

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO 556 OF 1985 Malkiat Singh & Ors                              Vs State of Punjab                       J U D G M E N T M. K. MUKHERJEE. J.      These two  appeals,  filed  under  Section  14  of  the Terrorist Affected  Areas (Special  Courts) Act,  1984, have been heard  together as  they stem  from one  and  the  same judgment rendered  by the Special Court, Ferozepore in Trial No 112  of 1985. One of the appeals (Criminal Appeal No. 556 of 1985)  is at  the instance  of Malkiat Singh and Mohinder Singh, son of Mukhtiar Singh, (hereinafter referred to as A1 and A2  respectively) who  have been convicted under Section 302 read  with 34  of the Indian Penal Code and sentenced to imprisonment for life and the other (Criminal Appeal No. 539 of 1985)  has been  filed by  Teja Singh  (PW-2) the defacto complainant, assailing  the acquittal of others arraigned in the trial  and seeking  capital punishment  of the above two convicts. During  pendency of  these  appeals  A1  died  and therefore  his   appeal  abates.  The  prosecution  case  as recounted in the trial is as under :      On April  9, 1984  at or about 6.30 P.M. Teja Singh (PW 2), his  father Ajaib  Singh (the deceased) and his maternal uncle Major  Singh (PW  3) were  returning to  their village Lehra Rohi  on bicycles along the public road. PW 2 and PW 3 were riding  one bicycle  while Ajaib  Singh was on another. Suddenly a  tractor came  from behind  in a  great speed and stopped ahead  of them.  A2 was  driving the tractor, A1 and Mukhtiar singh  were sitting on its left mudguard armed with a gun  and  a  Kirpan  respectively  and  Surjit  Singh  and Mohinder Singh  son of  Narain Singh,  were sitting  on  the right mudguad  with  a  dang  and  a  qandasa  respectively. Mukhtiar Singh  raised a  lalkara and  hearing the same when

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Ajaib Singh  was on the point of getting down from the cycle Malkiat Singh  fired at  him from  his gun twice felling him down with  the cycle. A2 then reversed the tractor and drove it over  the body  of Ajaib  Singh resulting in his death on the spot. Seeing the assault on Ajaib Singh when PWs 2 and 3 raised alarms Surjit Singh and Mohinder Singh (son of Narain Singh) assaulted  PW 3  with in  question A1  had launched a prosecution against  him, the deceased and others for having assaulted him.  Besides, a  year before  A2 and  his  nephew Mangal Singh had assaulted Sukhwinder Singh, brother of PW3, and in  the case  that was filed over that incident PW3 used to help  Sukhwinder Singh  in his  capacity as the Sarpanch. The other  material witness  on whom  prosecution relied was Dr. J.S.  Gujral (PW  1)  who  held  the  autopsy  and  also examined PW 3. According to PW 1 his post-mortem examination on the  dead body  of Ajaib  Singh  revealed  the  following injuries:-      "1. Left  side of  the  skull  bone  was      badly crushed with brain matter crushed.      2 a. A lacerated wound 5 cms x 3.1/2 cms      with inverted  margins and  blackened on      the front  of the  right  chest  at  the      level of  the lower  end of the sternum.      On exploration  a wad was taken out. The      left pleura  and the lung were torn. The      plural cavity  was full of dark coloured      clotted blood (wound of entrance).      2 b. A lacerated wound 4 cms x 2.1/2 cms      with irregular  margins on  the front of      the left chest towards the outer side 11      cms from the nipple (wound of exit).      3 a.  A lacerated  wound 2.1/2  cms with      inverted margins on the back of the left      fore-arm towards outer side in the upper      third with  under lying bones fractured.      A pellet  was taken  out from underneath      the injury (wound of entrance).      3 b.  A lacerated  wound with  irregular      margins 1.1/2  cms x  1 cm  on the inner      side of the left elbow (wound of exit). the weapons  they were carrying as a result of which he also fell down.  Thereafter all  the five miscreants fled away in the tractor.  In the  mean time  PW 2 found Dhiraj Singh and Jarnail Singh  coming  from  the  opposite  direction  on  a tractor. He  stopped them and narrated the incident. Leaving Jarnail Singh  to guard the dead body, PW 2 and Dhiraj Singh took injured  Major Singh  to the  hospital. From there PW 2 went to  the police  station and  lodged a first Information Report. On that report ASI Nachhatar Singh (PW 7) registered a case  and left  for the spot accompanied by PW 2. Reaching there he  held inquest upon the dead body of Ajaib Singh and sent it  for post-mortem  examination. He  seized some blood stained earth,  a piece  of bone, two cycles and two empties found at  the spot, besides other articles. On completion of investigation he  submitted charge-sheet  and in  due course the case was committed to the Special Court.      The accused  persons pleaded  not guilty to the charges levelled against  them and  contended  that  they  had  been falsely implicated owing to previous enmity.      To prove  its case  the prosecution relied, principally upon PWs  2 and 3, who claimed to have been eye-witnesses to the murder.  Both of  them detailed  the prosecution case as narrated earlier. As regards the motive PW 2 stated that two months prior to the incident      4. Abrasion  10 cms x 4 cms on the inner

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    side of the left leg upper third.      5. Abrasion  2 cms.  x 1.1/2 cms. On the      inner side of the right knee.      6. Right  ulna was protruding out of the      wrist joint."      Considering the  fact that  PW 2  and  PW  3  are  near relations of  the deceased, being his son and brother-in-law respectively, we  have considered  their evidence  with more than ordinary  care  and  caution.  Such  exercise  of  ours persuades us  to hold that their evidence is wholly reliable as it  is clear,  cogent and convincing. Indeed, nothing was brought to  our notice  in course  of the  hearing of  these appeals to  show that PWs 2 and 3 were unworthy of credit or that their  evidence was  unacceptable. We  further get from the record  that within  an hour of the incident PW 2 lodged the F.I.R. delineating the prosecution case. The presence of PW 3 at the spot and his claim of having seen the occurrence get support  from the  fact that  PW 1  found  a  number  of injuries on  his person  when he  examined him  on that very night. The  nature of  injuries found by PW 1 on the body of the deceased  also  goes  a  long  way  to  corroborate  the evidence of  PWs 2 and 3 for he opined that the deceased was the victim  of two  gun shots,  that injuries  No. 1  and  6 could be  caused by  driving a  tractor on his body and that injuries No.  4 and  5 could be caused by fall from a cycle. PW 1  further opined  that the  death was  due to  shock and haemorrhage as a result of injuries No. 1 and 2.      Since the  evidence of  PWs 2  and 3  coupled with  the corroborative evidence  discussed above  conclusively proves that A1 had, by firing twice from a gun,  and A2, by driving a tractor  over Ajaib  Singh, caused  his death, we need not discuss  the  other  evidence  adduced  by  the  prosecution including that relating to motive.      Coming now to the other appeal we must hold, in view of the nature  of evidence  adduced during trial to connect the other accused  persons with  the murder of Ajaib Singh, that the learned trial Judge’s finding that they were entitled to the benefit  of  reasonable  doubt  cannot  be  said  to  be perverse for against the respondent Mukhtiar Singh, the only incriminating  evidence  was  that  he  raised  lalkara  and against the other two no evidence of any overt act was laid. As regards  the grievance  of the  complainant that  in  the facts and  circumstances of  the case  the convicts ought to have been  awarded death  sentence we can only say that this is not  one of  the ’rarest  of rare’  cases  meriting  such punishment.      On  the  conclusions  as  above  we  dismiss  both  the appeals. The  appellant  Mohinder  Singh,  son  of  Mukhtiar Singh, who  is on  bail, will now surrender to his bail bond to serve out the sentence.