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PETITIONER: JASPAL SINGH @ PALI

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT:       08/10/1996

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

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 263 OF 1996 Darshan Singh and Ors. V. State of Punjab                       J U D G M E N T S.P. KURDUKAR. J.      The appellants  in these two criminal appeals before us were  sent   up  for  trial  before  the  Additional  Judge, Designated court. for the offences punishable under Sections 148, 302/149 of the Indian penal Cods read with Sections 3/4 of the Terrorist and disruptive Activities (Prevention) Act. (for short  TADA’)for having  committed the murder of Jasbir Singh @ Bhure on the intervening night of 22/23rd July, 1991 at his village Shanurki, Police Station, Nabha. 2.   The  brief   facts  of  the  prosecution  case  are  as follows:-      Gurjant Singh  (PW3). the father of Jasbir Singh (since deceased) lodged  an FIR  alleging  that  he  and  his  five brothers were  residing in  their  houses  having  a  common boundary wall  whereas his  seventh brother  Sarup Singh was residing separately  in the village. On the fateful night of 22nd July,  1991, he was sleeping in the courtyard alongwith his two  sons, namely,  Gurbinder Singh  and Jashbir Singh @ Bhura (since  deceased).  Two  of  his.  nephews  were  also sleeping in   the  same courtyard.  The ladies  and children were sleeping  inside the  rooms. His  younger  brother  Ram Singh was  sleeping on the roof of the house. At about 12.30 a.m., seven  terrorists entered  in his house by opening the gate and  scaling over the wall of whom five were armed with pistols and two were having Sten guns. One of the terrorists who was Known as ‘Saba’ came forward and demanded a licensed rifle and  Rs. 1,00.000/-from  him. He  replied that  he was neither having a rifle nor cash. The terrorists then entered into the rooms and searched all the iron boxes lying therein and thereafter  came  out  in  the  courtyard.  One  of  the terrorists then asked ‘where was Jasbir Singh @ Bhura and to which terrorist  organisation they belonged?’. Gurjant Singh (PW 3)  retaliated and  asked them  as to which organisation they belonged?  The terrorists  then left  the house telling

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Gurjant Singh (PW 3) that they would come back again after a few minutes  and by  that time, he should keep the amount of Rs. 1,00.000/-ready.It  was further alleged by Gurjant Singh (PW 3)  that after  a few minutes, all these terrorists came bark to  his house  and enquired about the cash amount. They also asked  Jasbir Singh  to accompany them to which Gurjant Singh (PW  3) and  his family  members pleaded for mercy and told them  not to  take him  away. The  terrorists then told Gurjant Singh  (PW 3)  and his  family members  that  Jasbir Singh would  be let  off soon.  Accordingly, the  terrorists carried Jasbir  Singh with them and within 5 to 7 minutes, a fire arm  shot was  heard from  the direction of the street. Because of  the apprehension to their lives, they did not go to the  spot immediately  but after  some  time,  when  they reached there, they saw Jasbir Singh was lying dead with the fire arm  injury on the left side of his chin near the house of his brothers pal Singh and Mohinder Singh. 3.   It is  then alleged  by Gurjant    Singh  (PW  3)  that because it  was the night time they did not go to the police station immediately  and waited near the dead body until the day dawned.  He then  contacted Bant  Singh, the Sarpanch of the village and thereafter they went to lodge the FIR at the police station.  SI Hitinder  Singh,  SHO,  Police  station, Sadar Nabha.  registered the  crime. He  alongwith a  police party reached  at the  place of  occurrence and  started the investigation. 4.   At the outset, it may be stated that since the names of the terrorists  were not  known to any of the family members including Gurjant Singh (PW 3). only description thereof was given in  the complaint.  The dead  body of Jasbir Singh was then sent  for post mortem examination. During the course of investigation on  27th July,  1991, Chhota Singh (PW 7), the Sarpanch stated that the terrorist (accused) had come to his house and  confessed the  crime. The  appellants  were  thus found  to  be  the  terrorists  who  on  the  fateful  night committed the  Crime in question, and came to be arrested on 19th September,  1991. Saudagar Singh (A-2) while in custody made a  statement under Section 27 of the Evidence Act which led to  the recovery  of Pistol  alongwith  cartridges.  The appellants Jaspal Singh (A-1) and Rajinder Singh (A-3) while in police  custody also  made statements  which led  to  the recovery of fire arms. After completing the investigation, a charge sheet  came to  be filed  in  the  Designated  Court, Sangrur against five accused persons. 5.   The appellants  denied the  accusation against them and pleaded  that  they  are  innocent  and  have  committed  no offence. They, therefore, prayed that they be acquitted. 6.   The prosecution in support of its case examined as many as ten  witnesses, of  whom. the star witnesses were Gurjant Singh (PW  3)-the complainant,  Chhota Singh (PW 7), and the sarpanch  before   whom  the   appellants  alleged  to  have confessed their guilt. 7.   At the  conclusion of the trial, the learned Additional judge of  the Designated  Court, accepted  the  evidence  of Gurjant Singh  (PW 3) and Ram Singh (PW4) as trustworthy and reliable, although  they identified  the appellants  for the first time  in the  court.  The  learned  trial  Judge  also accepted the  evidence of  Chhota Singh  (PW 7), before whom Jaspal Singh  (A-1) alongwith other appellants had confessed the guilt  on 27th  July, 1991,  as truthful. In addition to the above  evidence, the  learned Trial’  judge also  relied upon the  evidence of  recovery of  wallet from  the kitchen garden of the complainant wherein photograph of Jaspal Singh (A-1) was  found. On  appraisal of  evidence on  record, the learned Trial Judge held that the prosecution has proved the

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complicity of  all the  appellants in  the present crime and accordingly convicted all the rive appellants under Sections 302/149 of the Indian penal Code and Section 3/4 of TADA and sentenced each  one of  the appellants  to  suffer  rigorous imprisonment for  life and  to pay  a fine  of Rs. 2.000/-in default of  payment of  fine to  under go  further  rigorous imprisonment for a period of two years. The Trial Court also convicted and  Sentenced  each  one  of  the  appellants  to undergo rigorous  imprisonment for  a period  of three Years under  Section  148  IPC.  The  substantive  sentences  were ordered to  run concurrently.  It may  also be  stated  that Saudagar Singh and Rajinder singh (the appellants Nos. 3 and 4 in  criminal Appeal  No. 163  of 1996)  were tried  in two connected  special   sessions  Case   No.  73   of  4-4-1991 respectively for the offences punishable under Section 25 of the Arms  Act read with Section 5 of TADA and were sentenced to under  go rigorous imprisonment for five years and to pay a fine  of Rs.1,000/-;  in default  of payment  of Fine,  to under go  further rigorous  imprisonment for  one year.  The impugned judgments and orders are dated 31st October, 1995. 8.   Aggrieved  by  the  judgments  and  orders  dated  31st October, 1995  passed  by  the  designated  Court,  Sangrur, Jaspal Singh,  the appellant  has filed  Criminal Appeal No. 268 of  1996 whereas  the other  four appellants  have filed Criminal Appeal  No. 1/03/96  in this  Court challenging the legality and  correctness thereof.  Since both these appeals arise out  of a  common judgment, they are being disposed of by this judgment. 9.   Mr. R.S.  Sondhi the  Learned Counsel appearing for the appellants in  both the appeals urged that although the were arrested on 27th July, 1991 yet no T.I. Parade was held. The identity of  the appellants  was sought to be established in the Court.  Such identification was totally unsafe and could not form  the basis  of their conviction. He also urged that Gurjant Singh  (PW 3)  had admitted in his evidence that the terrorists who  had entered  into his  house on  the fateful night were  not known  to him and. therefore, they could not have been  identified by  him. On this premise, the evidence of Gurjant  Singh (PW  3) does not take the prosecution case any further. He also urged that the identity of Jaspal singh (A-1) sought  to be proved by the prosecution with reference to the  seizure of  wallet from  the kitchen  garden of  the complainant wherein  his  photograph  (Jaspal  Singh  )  was found,is again  a very  weak piece  of evidence  and on such evidence, his  conviction is unsustainable. He further urged that the  evidence of  Chhotu Singh  (PW  7)  to  prove  the alleged extra-judicial confession having been made by jaspal Singh (A-1)  in the  presence of  other coaccused is totally untrustworthy  and   it  was   highly  improbable  that  the appellants would  have gone to the house of Chhota Singh (PW 7) to  confess their  quilt. counsel,  therefore, urged that the  impugned   judgments  and  orders  of  convictions  and sentences are unsustainable and accused be acquitted. 10.  Smt. Hemantika Wahi, learned Advocate appearing for the respondent supported the impugned judgment and order. 11.  At the  outset, it  may be  stated that  there  was  no challenge before  of the appellants that Jasbir Singh (since deceased) died  due to  fire arm  injuries sustained  by him during the  night intervening between 22/23rd July, 1991. It is, therefore, needless to refer to the evidence of Dr. Shiv Kumar Garg  (PW 2)  and his  autopsy report.  We  have  gone through the  evidence of  Dr. Shiv Kumar Garg (PW 2) and see no hesitation  in holding  that Jasbir singh died because of ante mortem fire arm injuries sustained by him. 12.  We have  carefully considered  the submissions urged on

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behalf of the appellants and in our opinion each one of them deserves to be accepted. 13.  It is  common premise that although the appellants were arrested on  27th July.  1991. yet  the investigating agency did  not   hold  T.I.  parade.  The  identification  of  the appellants in the Court made by Gurjant Singh (PW 3) and Ram Singh (PW  4) cannot  be accepted with certainty as reliable identification.  If   this  be   so,  the   attempt  of  the prosecution to  establish the identity of the accused in the present crime  has to  be rejected and, therefore, it is not possible to  connect any  of the appellants with the present crime. 14.  coming to  the second contention of Mr. Sodhi, we agree with him  that finding of the photograph in the wallet which was seized  during the investigation from the kitchen garden of the  complainant is  again a  weak piece  of evidence. On such evidence. it is difficult to connect Jaspal Singh (A-1) with the present crime. 15.  The third  contention of  Mr. Sodhi  Viz., that  it  is highly improbable that Jaspal Singh (A-1) would have gone to this witness  alongwith his co-accused to confess the guilt, is equally formidable. Chhota Singh (PW 7) has  not give any reason as  to why  and how  Jaspal Singh (A-1) and other co- accused have  reposed such a confidence in him and confessed their quilt.  After going  through the  evidence  of  Chhota Singh (PW  7), we  do not  find it  safe to  hold any of the appellants guilty in the present crime. 16.  In View of the aforesaid conclusion, it is not possible to sustain  the convictions  and sentences  of any  of these appellants.  Result  there  of  is  that  both  the  appeals succeed. The  impugned judgments  and orders  of convictions and sentences  are quashed  and set aside and the appellants are acquitted.  The appellants,  who are  in jail, be set at liberty forthwith, if not required in any other case.