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PETITIONER: KASHMIR SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       13/01/1997

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      M.K. MUKHERJEE, J.      This appeal  under Section  19  of  the  Terrorist  and Disruptive Activities  (Prevention) Act,  1987  (’TADA’  for short) is directed against the judgment and order dated July 21,1993 rendered  by the Additional Judge. Designated Court, Amritsar in  Sessions case  No. 300  dated  October  31,1991 convicting the  appellant under Sections 302 and 307 IPC and Section 3 of TADA.      Shorn of details the prosecution case is as under:      In the  year 1989,  Swinder Singh  (P.W.1) settled  the marriage of  his sister  Surinder Kaur  with the  appellant. Since, however,  in the  following year  he (the  appellant) joined a  terrorists’ organisation  Swinder Singh refused to solemnise the  marriage. Such refusal enraged the appellant; and after  he came  out of  the prison where he was detained for about a year owing to his such activities he went to the house of Swinder Singh in village Thata and gave out that in case Surinder  Kaur was  married elsewhere he would kill all the members  of their family. On being so threatened Swinder Singh the Surinder kaur left their house and went to village Burj Raike  where they  started living  with the  family  of Major Singh, whose daughter Manjit Kaur was a class mate and close friend of Surinder Kaur.      About a week later- in the dead of night between may 20 and 21,1991  to be  precise- when Swinder Singh was sleeping the courtyard of the house of Major singh, the appellant and one Swinder  Singh appeared there after scaling its boundary wall. While  accused Swinder  Singh went  to the roof of the house the  appellant stayed  back in  the courtyard. He (the appellant) then menacingly told Swinder Singh that his would he wife Surinder Kaur should be presented before him. In the meantime Major  Singh, the member of his family and Surinder kaur, who  were sleeping  inside  the  house,  got  up.  The appellant then  started firing from the AK 47 rifle which he was carrying,  aiming each  of them as a consequence whereof Major singh  and  the  other  four  members  of  his  family comprising his two daughters and two sons and Surinder Kaur, sister of  Swinder Singh,  fell down dead. Swinder singh was also fired  at as  a result of which he received injuries on

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right  eye,  chest,  neck  and  other  parts  of  his  body. Thereafter the appellant and the other accused fled away.      Swinder Singh  was taken  to the Primary Health Centre, Sirhali for  treatment in  the  following  morning;  and  on receipt of  a report from its senior Medical Officer in that regard sub inspector Balkar Singh (P.W.7), of Sirhali police station went  there and  recorded the  statement of  Swinder Singh (Ext. PA). On that statement a case was registered and S.I. Balkar  Singh took  up investigation.  he went  to  the house of Major Singh in village Burj Raike and after holding inquest on  the six  dead bodies  lying there  sent them for post-mortem examination.  From that  house he  recovered  28 cartridges of  AK-47 rifle  and  made  them  into  a  sealed parcel. He  also seized blood-stained earth from beneath the dead bodies  and  prepared  a  separate  parcel  in  respect thereof. On  completion of investigation he submitted charge sheet against  the appellant  only, as  the  other  accused, namely, Swinder Singh had died in the meantime.      The  appellant   pleaded  not  guilty  to  the  charges levelled against  hem and stated, while being examined under Section 313  Cr.P.C., that he was arrested prior to the date of the alleged offence, namely, May 21,1991 from his village Jand by  the police  and since  then he  was kept  in police custody wherein  he was brutally tortured. Thereafter he was falsely shown  arrested in  the instant  case. In support of their  respective   cases  the  prosecution  examined  seven witnesses while the appellant examined two.      That Major  Singh, his  two sons  and two daughters and Surinder Kaur  met with  homicidal deaths  owing to fire-arm injuries in  his (Major  Singh’s) house stood established by overwhelming evidence  on record.  Indeed this  part of  the prosecution case  was not  challenged by  the  defence.  The evidence of  the Investigating  Officer (P.W.7)  and that of Jagtar Singh  (P.W.2), a  brother of  Major  Singh,  clearly prove that  the dead  bodies of  the earlier  mentioned  six person with  injuries thereon  were found  in the  house  of Major singh.  The evidence  of  P.W.2  further  proves  that Swinder Singh was also lying injured there. Dr. Haripal Kaur Dhariwal (P.W.5)  who held  autopsy testified  that all  the injuries that  she found  on the six dead bodies were caused by fire-arms.  From the  evidence of Dr. Mohan Singh (P.W.6) the Medical  Officer of Sirhali Primary Health Centre we get that Swinder  Singh (P.W.1)  had a number of injuries on his person and  that he  was referred  to the S.G.T.B. Hospital, Amritsar for better treatment where he was kept as an indoor patient for one and a half month. He further stated that the right eye ball of Swinder Singh was totally damaged.      The next  and the  crucial question  that falls for our determination is whether the appellant was the author of the above six  gruesome murders  and attempted murder of Swinder Singh as  alleged by  the prosecution. To prove this part of its case  the prosecution  relied, needless  to say,  solely upon the  evidence of  Swinder Singh (P.W.1), for consequent upon the  death of  all the other inmates of the house there was none,  nor there  could be any, other eye-witness to the murders that  took place   in the house at the unearthy hour of 2  A.M. P.W.1  detailed the  entire  incident  as  stated earlier including  the  motive  behind  the  murder  of  his sister. We  have carefully gone through the evidence of this witness and  find no reason to disbelieve him, more so, when we find  that this  presence in  the house of Major Singh at the material  time is corroborated by the evidence of P.W.2. as also D.W.2, another brother of Major Singh, (both of whom lived in different houses in the same village) who testified that on  the following  morning they found him lying injured

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in the  house of their brother. besides, as noticed earlier, the appellant  had a  strong motive  to kill  the sister  of P.W.1. The  other fact  which lends  strong corroboration to the evidence  of P.W.1  is that the F.I.R that he lodged the following morning  contains the  substratum  of  the  entire prosecution case including the motive.      It was,  however, contended  on behalf of the appellant that on  reliance should be placed on the testimony of P.W.1 as he  did not  disclose the  name of  the appellant  as the culprit at  the earliest  opportunity. In  support  of  this submission the  learned counsel  for the  appellant drew our attention to the cross-examination of P.W.1 whrein he stated that some  residents of  village Burj Raide including Jagtar Singh (P.W.2)  came to the place of occurrence at or about 7 pr 7.30  A.M. but  he  did  not  mention  the  name  of  the appellant to  any of  them. We cannot lose sight of the fact that P.W.1  not only saw six ghastly murders being committed before his  won  eyes  but  he  himself  sustained  multiple gunshot injuries.  In such  circumstances it  can be  safely presumed that he was so dumbfounded and terror stricken that he could   not  and dared  not disclose  the  needs  of  the assailants to  those people but as soon as he met the police he mustered  courage to narrate the entire incident as would be evident  from the  F.I.R.   It was next contended that in view of  the testimony  of Pritam  Singh (D.W.2)  that Major singh was  earlier threatened  by the  terrorists  and  that P.W.1 did  not disclose the name of the appellant before him on the  ground that  the could  not identify the miscreants, the trial  court ought to have held that it was not unlikely that the  murders were committed by some unknown terrorists. We do  not find  any merit  in this submission also; firstly because,   P.W.1 categorically stated that he could identify the appellant and the other miscreants by the electric light of the  house then burning and secondly because, thee is not an iota of material on record to indicate that P.W.1 had any reason to falsely implicate the appellant.      Having given  our anxious  consideration to  the entire evidence on  record we  are in  complete agreement  with the trial  court   that  the   prosecution  has   been  able  to conclusively prove  that the  appellant  committed  the  six murders and  attempted to  commit the  murder of  P.W.1. His convictions under  Section 302  and 307  IPC  and  sentences therefore must  be upheld.  We are  however of  the  opinion that the  trial court  was not  justified in  convicting the appellant  under  Section  3  of  TADA  for  the  accusation levelled against him (the appellant) does not by any stretch of imagination  answer the  definition  of  ’terrorist  act’ under  TADA.   We,  therefore   set  aside  the  appellant’s conviction and  sentence under Section 3 of TADA. The appeal is thus disposed of.      Before we part with this record we wish to mention that the trial  court ought to have, considering the magnitude of the crime and the brutal manner of its commission, sentenced the appellant  to death instead of imprisonment for life but as the  State did  not  choose  to  prefer  any  appeal  for enhancement of  sentence, we  feel, now that about six years have elapsed  since  the  offences  were  committed  by  the appellant, no  suo motu  interference in  respect thereof is called for.