10 December 1996
Supreme Court







DATE OF JUDGMENT:       10/12/1996




JUDGMENT:                THE 10TH DAY OF DECEMBER, 1996 Present:              Hon’ble Mr. Justice M.K. Mukherjee              Hon’ble Mr. Justice S.P. Kurdukar Dr. B.L.  Wadhera, M.A.  Chinnasamy, Devender P.Singh, Advs. for the appellants. Ranbir Yadav, Adv. for R.S. Suri, Adv. for the Respondents.                       J U D G M E N T The following Judgment of the Court was delivered:                       J U D G M E N T S.P.KURDUKAR, J.      This Criminal  Appeal under Section 19 of Terrorist and Disruptive Activities  (Prevention)  Act,  1987  (for  short ‘TADA’) is  filed by  the appellants accused challenging the legality and  correctness of the impugned judgment and order of convictions  dated 15th  February, 1996  passed by  Addl. Judge,  Designated   Court,  District   Jail,  Nabha,  under Sections 302/34  and 397  of the  Indian Penal  Code as also under Section 3 of TADA. 2.   The prosecution  story as  unfolded at  the trial is as under:-      Jagjit  Singh,  SHO  (PW  6)  attached  to  the  police station, Sadar,  on 22-3-1991  was posted on patrolling duty in the jurisdiction of Bahadurgarh Town alongwith constables Mohinder Singh  (PS 4),  Sohan Singh  and Madan  Lal (PW 5). While they  were on  duty near  the gate  of Escort & Soetze Factory, Bahadurgarh,  Paramjit Singh (A-1) and Satnam Singh (A-2) came there and told that they intended to have room on rent and  for that  purpose  they  requested  Sukhdev  Singh (since deceased)  to accompany them so that they will have a drink and  then find  out the  suitable room on rent. Saying so, according  to the  prosecution,  both  the  accused  and Sukhdev Singh  left in the direction of Mandirwali Pulli. It is alleged  by the prosecution that one gentleman on bicycle informed Mohinder Singh (PW 4) and Madan Lal (PW 5) who were on patrolling  duty that  a person in the police uniform was lying  in   an  injured  condition  near  Mandirwali  Pulli. Thereafter, Jagjit  Singh, SHO  (PW 6)  went to the place of occurrence and  found Sukhdev  Singh was lying with bleeding injuries. Upon  inquiry, Sukhdev  Singh told  him  that  A-2



fired at  him  through  his  revolver  and  thereafter  they escaped with  his service stengun. The detailed statement of Sukhdev Singh  (since deceased)  was then recorded by Jagjit Singh, SHO  (PW 6)  and marked  as Ex.PD/1.  On the basis of this statement, a crime was registered under Sections 307/34 IPC; 3,4,5  and 6  of TADA  and 25  of the Arms Act. Sukhdev Singh was  then shifted  to Rajendera  Hospital, Patiala for medical treatment. During investigation, blood stained earth was collected  from the  spot in  a small  tin box and after sealing the  same, it  was sent  to the  Chemical  Analyser. Sukhdev Singh,  while  in  the  hospital  succumbed  to  his injuries on  2nd May,  1991. Dr. Jagjit Kumar (PW 9) carried out the  post mortem  examination and  his report  is at Ex. PB/1. It  is noticed  from the  record that both the accused were arrested  on 25th April, 1991 in another crime and were shown to  have been  arrested in  the present  crime on 28th April, 1991.  After completing  the investigation,  both the accused were  put up  for trial  for the offences punishable under Sections  302//307/382/394/397/34 of  the Indian Penal Code as  also under  Section 25  of the  Arms Act  and under Sections 3,4,5 and 6 of TADA. 3.   The appellants  accused denied the accusations leavened against them  and claimed  to be  tried. According  to them, they have  been falsely  implicated because  of enmity. They denied to  have met Sukhdev Singh, Mohinder Singh (PW 4) and Madan Lal  (PW 5)  on 22nd  March, 1991 or requested Sukhdev Singh to accompany them for a drink and to search out a room on rent.  They pleaded  that they  are innocent  and they be acquitted. 4.   At the  outset,  it  may  be  stated  that  the  entire prosecution case  rested  on  circumstantial  evidence.  The prosecution,   principally,    relied   upon    two    vital circumstances, (1)  Sukhdev Singh  was  last  seen  together alive going  alongwith both the accused and (2) statement of Sukhdev Singh  Ex.PD/1. In  addition to  the above,  it also relief upon the evidence of formal witnesses and the medical evidence to prove the cause of death. 5.   The Addl. Judge, Designated Court, on appraisal of oral and documentary evidence on record held that the prosecution proved both the vital circumstances mentioned hereinabove as also  other   circumstances  which  complete  the  chain  of circumstantial evidence. Consistent with these findings, the Trial Court  convicted A-2  under Section  302 of the Indian Penal Code  whereas A-1  under Section  302/34 of the Indian Penal  Code  and  sentenced  each  one  of  them  to  suffer imprisonment for  life and to pay a fine of Rs.1000/- and in default RI  for one  year. Both  the  appellants  were  also convicted under  Section 397  of the  Indian Penal  Code and were sentenced  to suffer  RI for  seven years  and to pay a fine of  Rs. 2500/-  and in  default six months RI. Both the accused were also convicted under Section 3 of TADA and each of them  was awarded  imprisonment for five years and a fine of Rs.  2500/-  or  in  default  six  month’s  RI.  All  the substantive sentences  were ordered to run concurrently. Out of the amount of fine as and when realised, half of it shall be paid  to the widow of Sukhdev Singh. Aggrieved by paid to the widow  of Sukhdev  Singh. Aggrieved  by  this  order  of conviction and  sentence, the  appellants have preferred the appeal under Section 19 of TADA to this Court. 6.   Before we  deal with these two important circumstances, it may be stated that learned counsel for the appellants did not  and   could  not  seriously  challenge  the  fact  that Sutskhdev Singh  met with  a homicidal death. We, therefore, do not  think it necessary to set out in detail the evidence of Dr.  Jagjit Kumar (PW 9) who held the autopsy on the dead



body  of   Sukhdev  Singh   and  prepared  the  post  mortem examination report  Ex.PB/1.  Suffice  it  to  mention  that according to  Dr. Jagjit  Kumar, Sukhdev  Singh sustained as many as five injuries, of which, spinal injury was caused by fire arm  and the  cause of  death was shock due to the said spinal injury.  All these  injuries were  ante  mortem.  The spinal injury  was possible  with shotgun  since there  were pellets. During the cross-examination, he stated that bullet comes out  of revolver,  stengun and  pistol whereas pellets are from shotguns. In view of this medical evidence, we have no hesitation  in upholding  the finding  of the Trial Court that Sukhdev  Singh died  a homicidal death. We, accordingly do so. 7.   Coming to the vital vital circumstance, namely, Sukhdev Singh was  last seen  alive in the company of the appellants and in order to prove this fact, prosecution strongly relied upon the evidence of Mohinder Singh (PW 4) and Madan Lal, PC (PW 5).  Both the  witnesses undoubtedly stated on oath that on 22nd  March, 1991,  when they  were  on  patrolling  duty alongwith Sukhdev  Singh,  the  appellants  came  and  asked Sukhdev Singh  to come  alongwith them to find out a room on rent and  also share  a drink. Saying so, Sukhdev Singh left the patrolling  duty and  went alongwith  the appellants. We have gone  through the evidence of both these witnesses very carefully and  we do  not feel it safe to accept the same as credible one.  The main reason for discarding their evidence is that  their statements under Section 161 of Cr. P.C. came to be  recorded on  8th August,  1991 after about four and a half months.  No explanation  whatsoever was  given  by  the Investigating Officer  Gurmeet Singh (PW 11) as to why their statements  could   not  be  recorded  earlier.  Both  these witnesses were members of the patrolling duty and even after knowing  that  on  22nd  March,  1991,  Sukhdev  Singh  left alongwith the appellants and was admitted in the hospital in an injured  condition, they  did not  come forward  to  tell about this  fact. It  is in  these circumstances,  we do not feel  it  safe  to  accept  their  evidence  on  this  vital circumstance, namely,  Sukhdev Singh  was last seen alive in the company of the appellants. 8.   The next  circumstance  strongly  relied  upon  by  the prosecution to  prove the  complicity of both the appellants was the  alleged dying  declaration Ex.PD/1 of Sukhdev Singh recorded by  SHO Jagjit  Singh (PW  6) on  22nd March,  1991 between 8.30  and 9.00  p.m. Jagjit  Singh (PW  6) testified that on 22nd March, 1991, he was posted as an Inspector/SHO, Police Station  Sadar Patiala  and on that day, he alongwith SI Kuldip Singh and other police officials were going in the area  of   Bahadurgarh,  Seel   road,  in   connection  with patrolling duty  and investigation  of a  case  bearing  FIR No.76/91, PS  Sadar Patiala.  He saw Sukhdev Singh, HC in an injured condition  lying on  the road side. He lifted him by giving support  and made  inquiries. Sukhdev  Singh made the statement Ex.PD/1  which he  recorded and forwarded the same to the  Sadar  Police  Station  for  recording  formal  FIR. Accordingly, an FIR was registered Ex.PD/2. Sukhdev Singh in his statement Ex.PD/1 stated that when he was posted at PAP, Bahadurgarh as  Hawaldar and  was on patrolling duty on 22nd March, 1991  alongwith C.Mohinder Singh (PW 4) and Madan Lal PC (PW  5) at  about 8.00  p.m., Paramjit  Singh  (A-1)  and Satnam Singh  (A-2) came  near the gate of Escort and Goetze Factory, Bahadurgarh,  whom, he  was knowing  earlier.  They told him  that if  he needed  a room  on  hire,  they  would provide the  same and  they would  sit somewhere to have the snacks. Accordingly, he went alongwith them to Seel Road and when they  reached near  Mandirwali Puli,  A-2 took  out the



revolver from  his dub and fired at him. He sustained a fire arm injuries  and fell  down. Thereafter,  A-1 and  A-2 took away his  stengun No.  20261, Batt No. 86, two magazines and cartridges and  ran away. He was lying for long time. No one came to  him due  to fire  arm injury  sustained by him. The market was  already closed but the outer lights of the shops were on.  A-1 and A-2 in connivance with each other with the intention to  kill him  and snatch  the arms  and ammunition brought him  at the place of occurrence and fired at him. He was unable  to  sign  as  his  hands  were  shrinking.  This complaint be recorded and action be taken.      Jagjit Singh  (PW 6)  in his  evidence stated  that  he recorded the statement of Sukhdev Singh in his own words and since  his   injuries  were  bleeding,  he  was  shifted  to Rajendera Hospital,  Patiala. On  the way,  he  became  semi unconscious and did not regain consciousness till he died on 2nd May, 1991. Dr. R.P. Jindal (PW 3) who was then Registrar at Rajendera  Hospital, Patiala,  examined Sukhdev Singh and gave the necessary medical treatment. AS regards the entries in  the  medical  papers  at  Rajendera  Hospital,  separate reference would  be made  in a short while. This witness was cross-examined at  great length  and after going through his evidence and  the contents of the dying declaration Ex.PD/1, neither the  said evidence  nor the  contents of  the  dying declaration inspire  confidence in  us to accept the same as credible and  truthful. Jagjit  Singh (PW 6) admitted in his evidence that  after  recording  the  dying  declaration  of Sukhdev Singh,  he became semi unconscious and was unable to speak. He  further admitted  that  he  did  not  record  his remarks on the dying declaration that the maker was in a fit condition to  make such a statement. Dr. Jagjit Kumar (PW 9) had stated that Sukhdev Singh had sustained pellet injury on his spinal  cord. Having  regard to the medical evidence and the admission  of Jagjit  Singh (PW  6) that after recording the dying  declaration Ex.PD/1,  Sukhdev Singh  became  semi unconscious, it  would  be  totally  unsafe  to  accept  the testimony of  this witness to hold that Sukhdev Singh was in a fit condition to make the dying declaration. Moreover, the contents and  the manner  in which  all minor  details  were alleged to  have been  given by the injured Sukhdev Singh in his dying  declaration does  not inspire confidence in us to accept it  as truthful.  For instance, the dying declaration apart from  giving the  names  of  his  two  colleagues,  it mentioned their  buckle numbers and how he was tempted to go alongwith both  the appellants.  The maker  despite  such  a serious injury  to the spinal cord mentioned the stengun No. 20261 including  Batt No.86.  We have  very  carefully  gone through the  dying declaration  Ex.PD/1 and we are satisfied that the  said document  cannot be  accepted as a true dying declaration of  Sukhdev Singh and we will not be unjustified if  we  call  it  a  "concocted  document."  If  this  dying declaration Ex.PD/1  is left  out of consideration, there is hardly any  evidence to  connect  the  appellants  with  the present crime. 9.   Coming to the entries in the medical papers and the bed head ticket at Rajendera Hospital, what surprises us was the entry made on these papers as "accidental". It is not at one place such  an "accidental" entry was made but also at three other places.  Dr. R.P.  Jindal (PW 3), Registrar, Rajendera Hospital, Patiala,  had stated  that he  did not  make these entries but  he was  also unable  to account  for the  same. Surprisingly, the  learned Trial  Judge  Expected  that  the appellants were  supposed to  give explanation as to how the entry "accidental"  was made  in  the  medical  papers.  The entire approach  of the  learned  Trial  Judge  was  totally



erroneous on  this aspect  and no  explanation whatsoever in this behalf could have been expected from the accused. 10.  We have  gone through the judgment of the learned Trial Judge as  well as  other materials  on  record  and  we  are satisfied that  the prosecution  has failed  to  prove  both these vital  circumstances and reluctantly the conviction of the accused cannot be sustained. 11.  For the  foregoing conclusions,  we  allow  the  appeal filed by  the appellants. The impugned judgment and order of conviction passed  by the  Addl.  Judge,  Designated  Court, District Jail,  Nabha, on  15th February,  1996, in Sessions Case No.  250 of  12th September,  1991 is  quashed and  set aside and  both the  appellants are  acquitted  of  all  the charges.      Vide our  order dated  8th November,  1996, we directed that the appellants be released forthwith if not required in any other  case. It  is, therefore,  not necessary  to  pass separate order in this regard.