30 August 1996
Supreme Court


Case number: Appeal Criminal 401 of 1989






DATE OF JUDGMENT:       30/08/1996


CITATION:  1996 SCALE  (6)263



JUDGMENT:                       J U D G M E N T      M.K. MUKHERJEE. L.      These two appeals have been heard together as they stem from related  incidents and  this judgment  will dispose  of both of  them. Facts  leading to  these appeals and relevant for their disposal are as under. 2.   Teja Singh  (Since deceased  was a  resident of village Manakpur under  Fatehabad Police  Station where  he used  to live with  his family  which included  his brother    Harnek Singh (P.W.7) and his (p.w.7 s) son Hardev Singh (P.W.8). In front of  their house  lived appellants  Jaswant  Singh  and Bikar Singh,  Who  are the sons of Inder Singh. About a year before the  incidents with  which we  are concerned in these appeals, an unrelenting quarrel started between Harnek Singh on the  other regarding  the use  of the  Pulic  passage  in between their  houses which  compelled the  local police  to initiate  security  proceedings  under  Section  107  Cr.P.C against both the parties. 3.   On October  27, 1986,  Harnek  Singh,  Teja  Singh  and Hardev Singh  had gone  to Fatehabad  to attend Court as the security   porceeding instituted  against them was fixed for hearing on  that day. After attending Court they came to the bus stand  to catch  the bus  which was  to leave  for their village at  2.45 P.M.  On boarding  the bus  they found  the appellants Jaswant  Singh and Bikar Singh sitting inside. On the way when the bus stopped at Banwalli, appellants Darshan Singh, son  of Jaswant Singh, and Dilbag Singh, son of Bikar Singh,  also   boarded  in.   When  the  bus  reached  their destination at  Manakpur bus  stand at  3.45 P.M. Teja Singh alighted therefrom through the front door and so did jaswant Singh, Darshan  Singh, Bikar  Singh and Dilbag Singh. Harnek Singh and  Hardev Singh  however alighted  through the  rear door. On  comming out  of the  bus Harnek  Singh and  Hardev Singh found  appellant Dara  Singh, another  son of  Jaswant Singh, standing  there. They  however along  with Teja Singh proceeded towards  their village abadi. At that time Darshan



Singh, who  was about  two paces  behind them,  took  out  a pistol from  the pocket of his trousers and fired a short on the back of the shoulder of Teja Singh. On being so hit Teja Singh  started  running.  Darshan  Singh,  Bikar  Singh  and Jaswant  Singh   chased  him  and  ultimately  succeeded  in surrounding him. Darshan Singh then fired another shot which hit on the right side of the chest of Teja Singh. Teja Singh fell down  by the side of the road near a pond. While he was so lying  Dara  Singh  and  Dilbag  Singh  hacked  him  with gandhalas. Thereafter  all  the  five  appellants  ran  away towards their  fields. Harnek  SIngh and  Hardev Singh  then came near  Teja Singh  and found  him dead.  Leaving  Hardev Singh near  the dead  body Harnek  Singh left for Fatechabad Police Station  to looge  a report.  On the way Harnek Singh met S.I.  Shiv Dayal  (P.W.9) at the bus stand, where he was on patrol  duty, and  reported the  incident to  him.  After recording his  statement (Ext.  PP), S.I. Shiv Dayal sent it to the  Police Station  for registration of case and took up investigation. 4.   S.I. Shiv  Dayal then went to the spot, held an inquest over the  dead body of Teja Singh and forwarded in for post- mortem  examination.   Later  in  the  night  In  the  night Inspector Jai  Narain  (P.W.15)  Station  House  Officer  of Fatehabad Police  Station went  to the  spot and  took  over investigation of  the case  from S.I. Shiv Dayal. He however could not make proper sport inspection as it was late in the night and therefore with in search of the appellants. On the following morning he went to the spot again, prepared a site plan and  seized some  blood   stained earth  from the place where he  had found  the dead  body of  Teja Singh.  He also recovered a.  12 bore  empty cartridge which he packeted and sealed. In course of the investigation he recived one sealed parcel containing  pellets and  wads from the doctor who had extracted them from inside the body of Teja Sing at the time of post-mortem. He arrested Dara  Singh and Dilbag Singh and pursuant to the disclosure statements made by them recovered two gadhalas.  He also  interrogated appellant Darshan Singh and pursuant  to  his  statement  recovered  a  country-made pistol of  .12 bore  (Ex.P.15) on November 12, 1986 which he packeted and  sealed. The  seized pistol,  empty  cartridge, pellets and  wads were  sent  by  him  to  Forensic  Science laboratory for  examination and  report.  On  completion  of investigation Inspector Jai Narayan forwarded a charge-sheet against all  the accused  persons  under  Sections  148  and 302/149 IPC  on the  aforesaid by  him against Darshan Singh under Section  25 of the Arms Act read with Section 6 (1) of the Terrorist  and Disruptive  Activities (Prevention)  Act, 1985 (’TADA’  for short)  for having  been found in unlawful possession of  a pistol  on November  12,  1986.  While  the former charge-sheet gave rise to Criminal Case No 1.T.C. the other  to  Criminal  Case  No.2.T.C.,  both  of  which  were separately tried  by the Additional Judge, Designated Court, Bhiwani. 5.   At the  Commencement of the trial of case No.1 T.C. the learned judge  framed charges under Sections 148 and 302 IPC and Section  27 of the Arms Act, 1959 read with Sections 148 and 149/302  IPC against  the other  four appellant. In this trial the  learned Judge recorded an order of conviction and sentence against  the five  appellants in respect of all the above charges.  The other  trial also ended in conviction of the appellant  Darshan Singh  under Section  25 of  the Arms Act, 1959  read with  Section 6  (1) of  TADA.  Against  the conviction and sentence recorded in the first trial the five appellants have  jointly preferred Criminal Appeal no 405 of 1989; and  the other appeal (Criminal Appeal no 401 of 1989)



has been  filed by  the appellant  Darshan Singh against his conviction and sentence recorded in the other trial. 6.   To Prove the above two cases the prosecution examined a number of  witnesses besides  placing on record the evidence of some  formal witnesses.  Of the witnesses examined Harnek Singh (P.W.7)  and his  son Hardev  Singh (P.W.8) figured as eye-witnesses. Of the other witnesses Kanwar Singh (P.W.11), Karnail Singh  (P.W.12) and  Niranjan  Singh  (P.W.14)  were examined by  the prosecution to prove the statements made by the three  appellants, namely,  Darshan SIngh,  Dilbag Singh and  Dara  Singh  and  the  discovery  of  weapons  pursuant thereto.  The   other  witnesses   who  testified   for  the prosecution were  Dr. S.P.  Menani (P.W.1),  who held  post- mortem  examination,   Shri  Harbhagwan   (P.W.13),   Senior Scientific  Officer  (Ballistic)  of  the  Forensic  Science Laboratory (F.S.L.),  who had examined the sized pistol, the fired cartridge,  the pellets  and the  wads,  and  the  two Investigating  Officers,   S.I.  Shiv  Dayal  (P.W.9)    and Inspector Jai Narain (P.W.15) 7.   The appellants  who  had  pleaded  not  guilty  to  the respective charges framed against them contended while being examined under  Section 313  Cr. P.C.  that  they  had  been falsely implicated.  No witness,  however, was  examined  on their behalf. 8.   That Teja  Singh met  with  a  homicidal  death  stands conclusively proved  by the evidence of S.I. Shiv Dayal, who held inquest  upon the  dead body,  and Dr. S.P. Menani, who found five  injuries on  his person, two of which, according to him,  were caused  by fire-arms  and the  other three  by sharp edged  weapons. He  opined that  all the injuries were ante-martem in  nature and were sufficient to cause death in the ordinary  course of nature. He further testified that in course of  the post-mortem  examination he found pellets and wads embedded  in the tissues of the body which he extracted and handed  over to  the police  after  preparing  a  sealed parcel in  respect thereof.  When shown gadhalas (Ex.P.9 and P.10) allegedly recovered pursuant to the statements made by Dara Singh  he stated  that the  three incised  wounds could have  been   caused  by   them.  Indeed  this  part  of  the prosecution  case   was  not  seriously  challenged  by  the defence. 9.   That brings  us to the vital question as to whether the prosecution has  been able  to conclusively  prove that  the appellants were responsible for the murderous assault on the deceased.  To   answer  this   question  we   have   closely scrutinised the  evidence of  the two eye-witnesses, namely, Harnek Singh  and Hardev Singh in view of the fact that they are close  relations of  the deceased.  We, however, find no reason to discard their evidence, more so, when we find that in spite  of a  lengthy and  searching cross-examination the defence could  not succeed  in discriditing them in any way. On the  contrary, we find that the F.I.R. Which Harnek Singh lodged with  utmost dispatch  contains the substratum of the prosecution case.  Besides, the  medical evidence  which  we have referred  to earlier fully corroborates the evidence of the two eye witnesses. 10.  It was  however urged  on behalf of the appellants that having regard  to the  fact that  the case under Section 107 Cr. P.C. against the appellants had earlier been disposed of on October 22, 1986 there was no occasion for the appellants Jaswant Singh and Bikar Singh to go to Fetehabad on the date of the  alleged incident  of murder  and, for  that  matter, board the  bus in  which the  deceased was to travel. It was further urged  on their that the evidence of the two alleged eye witnesses  regarding  the  presence  of  the  above  two



appellants is  patently untrue  for they would not know that the deceased  was to  board the  same bus. These contentions are  wholly  unsustainable.  It  was  not  disputed  by  the appellants, and  indeed unimpeached  document (Ext  PF) also proves, that  the  deceased  was  to  attend  the  Court  at Fatehabad on  October 27,,  1986, being  the date  fixed for hearing of  the case  lodged against  them. It was therefore not unlikely  that being  certain that the deceased would be going to  Fatehabad on that date, the appellants chalked out their strategy  to do  sway with him and accordingly decided to follow  him since  he got  into  the  bus.  It  was  next contended that  there was material contradiction between the medical evidence  and the ocular avidence, in that, where as the two eye witnesses testified that Teja Singh was fired at when he  was going  along the fields, Dr. Minani opined that since the  track of injury No.1 which he found on the person of Teja  Singh, was upward to downward in all probability it suggested  that  the  victim  had  been  either  in  sitting position or  in lying  position or at a level lower than the assailant. We  do not  find any substance in this contention also. Apart  from the fact that the opening of the doctor as to how  an injury  was caused cannot over-ride unimpeachable testimony  of   eye  witnesses   in  case   there   is   any inconsistency between  them, the above opinion of the doctor is not  a definitive for in his further cross-examination he clarified that  the victim and the assailant could be at the same level.  Another contention that was raised on behalf of the  appellants  was  that  even  though  Harnek  Singh  had testified that  he was carrying a bag of vegetables which he had thrown  near the  bus stop when the first shot was fired at Teja  Singh, no  such bag was seized by the Investigating Officer nor  produced in Court, which necessarily belied the testimony of P.W.7. This contention has to be stated only to be rejected.  As earlier  noticed the claim of P.W.7 that he along with  Teja Singh  and others  had  gone  to  Court  at Fatehabad and  was coming back after attending the Court was not disputed at all in cross examination. 11.  In view  of the  foregoing discussion it would not have been necessary  of the weapons pursuant to the statements of three of  the appellants  but since  appellant Darshan Singh also stands convicted for having been found in possession of a country  made pistol  on  November  12,1986,  it  will  be necessary to refer to and reappraise the evidence in respect of such recovery. 12.  Inspector  Jai   Narain  (P.W.15)   testified  that  on 12.11.1986 he interrogated Darshan Singh while he was in his custody in  the presence  of  Niranjan  Singh  (P.W.14)  and Jagdish Singh.  In pursuance  of  his  disclosure  statement (Ext.Px) he recovered a country-made pistol Ex.p.15). He put that pistol  in parcel  and sealed  the same  after making a rough sketch  (Ext. PZ)  thereof.  He  further  stated  that thereafter  he   took  the  pistol  in  his  possession  and forwarded in  for examination by Forensic Science laboratory (F.S.L.). Niranjan  Singh (P.W.14) fully supported the above statement of  Inspector Jai  Narain and  also stated that he had attested  the statement  made by  Darshan Singh. It was, however, contended  on behalf  of the  appellants that since Niranjan Singh  admitted that  he was  the brother-in law of Harnek  Singh,   no  reliance  should  be  placed  upon  his evidence.  Even   if  we  leave  his  evidence  out  of  our consideration in view of his relationship with Harnek Singh, still then  we do  not find  any reason  to  disbelieve  the evidence of  the Investigating  Officer, more  so, when  his statement    stands    corroborate    by    the    documents contemporaneously prepared  by him  relating to  recovery of



the pistol. In his disclosure statement Darshan Singh stated he had  kept concealed  one country  made pistol  in a kotha situated near  tubewell hidden  in the  fodder and  that  he could get  the same  recovered. The  statement do made along with the  recovery of  the pistol  from that  place  clearly proves that  it was  in  possession  of  Darshan  Sing.  Sri Harbhagwan  Singh,  Senior  Scientific  Officer  (Ballistic) F.S.L (P.W.  13), who  had examined the pistol, the pellets, the wads and the empty cartridge testified that:      (i)  the   country-made  pistol(ex.      P.15) is  a fire-arm  as defined in      arms act  and was  found in working      order:      (ii) the  cartridge case  (Ex.P.11)      had   been    fired   from   pistol      (Ex.p.15) and  not from  any  other      fire-arm; and      (iii) the  wad (Ex  p. 80 and other      pieces could  from  part  of  empty      cargridge (EX.P.11) 13.  The above  testimonies of  P.W.13 and  P.W. 15 not only bring home the charge levelled against Darshan Singh that on November 12,1986 he was in unlawful possession of a country- made  pistol   but  also   substantially   corroborate   the prosecution case  relating to  rioting  and  murder  earlier committed by the appellants.      On the  conclusions as  above, we do not find any merit in any  of these  appeals and  accordingly dismiss them. The appellants, who  are on  bail, will  now surrender  to their bail bonds to serve out the remainder of their sentence.