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PETITIONER: NIKKA SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       08/10/1996

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

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO.537 OF 1989 Jit Singh V. State of Punjab & Anr                       J U D G M E N T S.P. KURDUKAR, J.      Criminal Appeal No. 585 of 1995 is at the behest of the appellant (accused)  under Section  19 of  the Terrorist and Disruptive (Special Courts) Act ( for short ’TADA’), against the judgment  and order  of conviction  dated 12th November, 1988 passed  by  the  Additional  Judge,  Designated  Court, Ferozopur. The Designated Court, found the appellant quality of the  offence punishable  under Section  302 of the Indian Penal Code  for committing  the murder  of Gurdip  Singh and sentenced him  to suffer imprisonment for life and to pay  a fine of  Rs. 5,000/-,  in default  of payment  of  fine,  to undergo further  rigorous imprisonment  for one  year. The 2 appellant was,  however, acquitted  under the  Arms Act  and TADA.      The de facto complainant has also filed Criminal Appeal No. 537  of 1989  challenging the  very   same judgment  and order of acquittal in respect of co-accused Gurtaj Singh and prayed that  he be convicted under Section 302 of the Indian Penal Code and be sentenced in accordance with law. 2.   Since both these appeals arise out of a common judgment passed by  the Designated  Court, they are being disposed of by this judgment. 3.   The prosecution  story as  disclosed at the trial falls in a very narrow compass:-      Jit Singh  (PW 3)  was doing  some construction work at his house  situated near  the liquor  vend  in  the  village Bishnandi. He  asked Gurdip  Singh to assist him in the said work. On  March 27,  1987, Gurdip  Singh alongwith  his  son Gurcharan Singh (PW 2) had gone to the construction site and were sleeping  on a  cot. At  about 11.00 p.m., Gurdip Singh woke up  after hearing  some noise  and noticed  that  Nikka Singh and Gaja Singh armed with guns were coming towards the construction site.  On seeing  these accused,  Gurdip  Singh raised  an  alarm  and  asked  them  about  their  identity,

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whereupon the  accused came  towards his  cot. Gurdip  Singh caught hold  of the  rifle of  Nikka Singh;  whereupon, Gaja Singh another  accused, exhorted  him to  fire. Nikka  Singh snatched the  gun from  Gurdip Singh and fired at him from a close range  causing injuries  on his  left jaw. Gaja Singh, thereafter caught hold of Gurcharan Singh (PW 2) by legs and threw him  on the  ground causing  injuries tn  his head. On hearing the  sound of  the fire  arm, Jit  Singh (PW  3) and Harnek  Singh,   brothers  of   Gurdip  Singh  came  to  the construction site and found Gurdip Singh dead. Jit Singh (PW 3) then  fired in  the air  through his  licenced gun in his self defence.  In the  meantime, both the accused fled away. Gurcharan Singh  (PW 2)  aged about 11 or 12 years, when got up after  hearing the  sound of gun shot fired in the air by his  uncle,   saw  the  dead  body  of  his  father,  became unconscious  and   fell  down.   However,  he  regained  his consciousness at about 7.00 a.m. on the following day. 4.   On March  28, 1987 at about 7.30 a.m. Jit Singh ( PW 3) alongwith Gurcharan  Singh, ex  Sarpanch went  to the Police Station at  Jaitu  and  lodged  the  FIR.  SI  Gurmej  Singh recorded the  statement of Jit Singh (PW 3) (Ex.PB) where in he gave the description of the 1 assailants. SI Gurmej Singh then reached  at the  place   of occurrence  and carried out further investigation.  Two empty cartridges of .12 bore gun bearing marks  KF-12 and  KF Special long range lying at the place of  occurrence were taken charge of by him. During the course  of  investigation,  SI  Gurmej  Singh  recorded  the statements of  various witnesses including that of Gurcharan Singh (PW  2), who  by that time had regained consciousness. After completing  the  investigation,  a  charge  sheet  was submitted  against  the  two  accused  persons  for  offence punishable under  Section 302  read with  Section 34  of the Indian Penal Code as also under Sections 3 and 4 of TADA and under Section 27 of the Arms Act. 5.   Both  the   accused  denied  the  accusations  levelled against them  by the prosecution and pleaded ; that they are innocent and they be acquitted. 6.   The prosecution in support of its case examined as many as nine witnesses of whom Gurcharan Singh (PW 2) was the eye witness. 7.   The learned Trial Judge on careful scrutiny of the oral and documentary  evidence on record by his impugned judgment found the  appellant guilty  of an  offence punishable under Section 302  of the  Indian Penal Code. The other co-accused Gurtej Singh,  however, was  given the  benefit of doubt and acquitted. lt is this order of conviction and sentence which is sought to be challenged by the appellant in this Criminal Appeal No. 585 of 1995 whereas the complainant has filed the Criminal Appeal  No. 537  of 1989  challenging the  order of acquittal in respect of Gurtej Singh  Gaja Singh. 8.   Mr. M.S.Gujral,  the Learned  Senior Advocate appearing for the  appellant (accused  ) urged that the impugned order of conviction  and sentence  is  totally  unsustainable.  He urged that  looking to the tender age of Gurcharan Singh (PW 2), it  was improbable  that he  would have gone to the site and slept alongwith his father. The prosecution has coined a false story  to show  the presence of Gurcharan Singh (PW 2) at the time of incident. He further urged that until the FIR was lodged  on 28th March, 1987, the names of the assailants were not  known and it contained only the description of the accused. The  claim of Gurcharan Singh (PW 2) that he became unconscious after  seeing the  dead body  of his father, but regained  the   consciousness  when   Investigating  Officer reached at  the place of occurrence was nothing but his ipse dixit and  should not be accepted in the accepted of medical

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evidence in  that behalf.  He urged  that there was enormous delay in  lodging  the  First  Information  Report  and  the prosecution has  utilized this period for concocting a false story of  assault on  Gurdip Singh  by the  accused. In  the facts  and circumstances of the case, counsel urged that the evidence  on   record  is  totally  unsatisfactory  and  the appellant be acquitted. 9.   Since it  is a first appeal against the judgment of the Designated Court,  we have  carefully gone  through the oral and documentary evidence on record. 10.  As regards  the unnatural  death of Gurdip Singh, it is not and  cannot be  disputed that  he met  with a  homicidal death. The  evidence of  Dr. K.K.Aggarwal (PW1) who held the autopsy on the dead body of Gurdip singh on 28th March, 1987 found the following injuries:      "A lacerated wound 10 cm x 8 cm x 5      cm present on left side of face. It      was triangular  in  shape,  pointed      and was   towards nostril and broad      surface was  2 cm  anterior to left      ear. Margins were inverted cherring      present. Clotted blood  was present      in the  wound. The muscles, fascia,      fascial   bones,   blood   vessels,      nerves  were   lacerated   in   the      wound."      On dissection  of scalp clotted blood was found present over left  parietal area.  On removal  of  skull,  the  left cerebral hemisphere  was found  lacerated on different sides and three  pellets  were  recovered  therefrom.  The  middle cranial fossa  was fractured  and subarachnoid  hematoma was present over  both cerebral  hemispheres. The wound over the face contained  22 pellets,  which were  lying in  different directions, and  they were  taken out.  He opined  that  the death was due to shock and haemorrhage as a result of injury caused by  the fire  arm. The  injury was  ante  mortem  and sufficient in  the ordinary  course of  nature to  cause the death. Ex.PA  is the  carbon copy of the post mortem report. In view  of the  expert’s evidence,  we see no hesitation in Concluding that Gurdip Singh met with a homicidal death. 11.  Coming to  the  complicity  of  the  appellant  in  the present crime,  the prosecution  story rests entirely on the evidence of  Gurcharan Singh (PW 2). It is true that the age of Gurcharan  Singh at  the time  of incident  was 11  or 12 years. It  is also  true that he is the son of the deceased. Bearing in  mind  both  these  factors,  we  have  carefully scrutinized the  evidence of  Gurcharan Singh  (PW  2).  The Designated Court after putting some questions to the witness found him  to be quite intelligent and capable of giving the evidence and  accordingly recorded  his statement  on  oath. Gurcharan Singh  (PW 2)  in his  evidence has stated that he had gone  to the  construction site  to sleep  alongwith his father. The  construction site  was near  their  house.  Jit Singh (PW  3) is his uncle. He then stated that on 27-3-1987 at about  11.00 o’clock  he woke  up due to the noise and at that time,  he heard his father asking about the identity of the two  persons. Suddenly, Nikka Singh came near his father who held  his rifle,  whereupon Gurtaj  Singh  exhorted  and asked Nikka  Singh to  fire at Gurdip Singh. Suddenly, Nikka Singh snatched  his rifle  from his  father and fired at him from a  close range as a result thereof he collapsed. In the meantime, he  saw  Jit Singh (PW 3) coming on the spot. Upon seeing the  dead body  of his  father, he  fainted and  fell down. He  regained the  consciousness only  on the following day at  about 7.30/8.00  a.m. The  statement of this witness

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under Section  161 Cr.P.C.  was recorded on 28th March, 1987 at about  7.30/8.00 a.m.  In his. evidence before the Court, he has  stated that he identified Nikka Singh who was having a rifle  in his  hand and  fired at  his father from a close range. He  was searchingly cross-examined by the defence but there is  hardly any  material  which  could  discredit  his testimony.  Learned   Trial  Judge,   in  our  opinion  was, therefore, right  in accepting  the  evidence  of  Gurcharan Singh (PW  2) as  truthful and  credible. We  see reason  to discard his testimony. 12.  Jit Singh  (PW 3),  who lodged  the  First  Information Report on  28th March  1987, at  about  7.30  a.m.,  in  his evidence, has  stated that  after hearing the noise, he woke up, went  towards the construction site and at that time, he saw two  persons running   away.  Since, he  saw them from a distance he  could not  identify them and, therefore, he has given the description of the assailants in his complaint. He further  stated  that  when  he  reached  at  the  place  of occurrence, Gurdip  Singh was  found dead  whereas Gurcharan Singh (PW  2) was  lying unconscious  whom he shifted to the house. However, he did not regain the consciousness until he left to  lodge the  First Information Report. He then stated that during  the course  of investigation,  the statement of Gurcharan Singh  (PW 2)  was recorded  by the  Investigating Officer  and  at  that  time,  he  told  the  names  of  the assailants.  There  is  nothing  in  the  evidence  of  this witness, which could discredit his testimony. 13.  After  going   through  the   evidence  of  both  these witnesses, we  are satisfied  that the evidence of Gurcharan Singh (PW  2) is  quite trustworthy  and the trial court has committed no  mistake in  convicting the  appellant  on  the basis of his evidence. 14.  It is  true that  the prosecution  has led  no  medical evidence to show that Gurcharan Singh (PW 2) was unconscious throughout the  night and  regained his consciousness on the following day.  The criticism  on this  issue made  by  Shri Gujral does  not  appeal  to  us  because  the  incident  in question took place at about 11.00 p.m. in village Bishnandi and it  was  not  expected  to  get  any  medical  help  for Gurcharan singh  (pw 2) at such late hours. Mr. Gujral urged that even  when the  inquest panchanama  was being drawn the manes of  the assailants  were not  known and  if they  were known  they   should  have   been  figured  in  the  inquest panchanama. We do not see any substance in this contention. 15.  Coming to  the next  submission of Mr.Gujral that there was considerable  delay in  lodging  the  first  information Repot we  see no merit in this contention. The incident took place on  27th  March,  1987  during  night  and  the  First Information report  was lodged in the following day at about 7.30 a.m. In our considered opinion, there was no delay and. therefore, the  question of concocting a false story against the appellant does not arise. 16. Coming  to the  Criminal Appeal No. 537 of 1989 filed by the   complainant after  hearing Mr.  Naresh Bakshi, Learned advocate for the de facto complainant, we are of the opinion that no  interference with  the order of acquittal of Gurtaj Singh is called for. 17.  In the  result, there  is no  substance in  both  these appeals and,  therefore, to stand dismissed. Appellant Nikka Singh if  on bail shall surrender to his bailbonds forthwith to serve out the remainder of his sentence.