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CASE NO.: Appeal (crl.)  991 of 2004

PETITIONER: Sarup Singh                                                              

RESPONDENT: State of Punjab                                                  

DATE OF JUDGMENT: 04/10/2005

BENCH: S.B. Sinha & R.V. Raveendran

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

       The Appellant herein with one Dilbagh Singh and Baljit Singh were  tried and convicted for commission of offence of house breaking by night,   to commit murder of Kans Kaur; for attempts on the lives of Joginder Singh  and Avtar Singh and also for the illegal use of their fire arms.  They were  found guilty and were sentenced to undergo imprisonment for life for the  murder of Kans Kaur and lesser sentences for the other offences.  All the  sentences were directed to run concurrently.           Baljit Singh was married to Sukhwinder Kaur, daughter of Joginder  Singh (PW-2) and Kans Kaur.  Owing to alleged demand of dowry,  Sukhwinder Kaur came back to her parents from her matrimonial home  which gave rise to strained relationship between the parties .  Baljit Singh  tried to forcibly take away Sukhwinder Kaur on a few occasions but her  parents did not permit her to go with him whereupon Panchayat intervened  resulting in execution of a purported agreement of informal divorce.

The said Baljit Singh, Dilbagh Singh as also the Appellant herein   were constables.  All of them were deputed on patrol duty at a naka set up at  Fatuwal, GT Road.  Their duty hours were between 8 P.M. on 20th February,  1995 to 8 A.M. on 21st February, 1995.  Nachhatarpal Singh (PW 14) was  working as a helper in a vehicle bearing registration No. PB-08-4886.  He  along with the driver, Paramjit Singh of the said vehicle was on his way  back to Jalandhar from Jandiala Guru after unloading paper.  When the said  vehicle reached Fatuwal, allegedly the accused stopped the same and asked  the driver to take him and other accused persons to Kot Budha.  Baljit Singh  was armed with self-loading rifle and the Appellant and Dilbagh Singh were  armed with .303 rifles.  It is not in dispute that the said rifles were issued to  the accused persons with ammunition.  Kot Budha is situated at a distance of  45 Kms. from Fatuwal.  All the three accused at that time were in police  uniform.  On reaching the informant’s (Joginder Singh’s) house, they scaled  over the wall of the court yard.  Gurpreet Kaur (PW1) was sleeping with her  mother Kans Kaur, deceased.  Joginder Singh was sleeping in another room.   While Sukhwinder Kaur, Inderjit Kaur and Sarabjit Singh were sleeping in a  third room.  Baljit Singh and Dilbagh Singh knocked at the door of the room  where Gurpreet Kaur and Kans Kaur were sleeping and then at the door of  the Joginder Singh’s room.  On hearing the voice of Joginder Singh, they  broke down the door with the butts of their rifles and fired at him.   Thereafter, they broke down the door of the room where Gurpreet Kaur was  sleeping and dragged Kans Kaur out.  Despite pleas from Sukhwinder Kaur  and her two sisters not to kill their mother, they fired shots at Kans Kaur.   Avtar Singh, a cousin of Gurpreet Kaur also reached the courtyard by  scaling over the wall.  A shot was  fired at him by the Appellant herein.  The  three accused thereafter ran away.  The death of Kans Kaur and injuries

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suffered by Avtar Singh and Joginder Singh is not in dispute.

       Before the learned Trial Judge, the prosecution examined Gurpreet  Kaur, PW1, Joginder Singh, PW2 and Avtar Singh, PW3.  Dr. Gurpal Singh,  PW4 performed autopsy and submitted a report therefor   Nachhatarpal  Singh, PW 14, as noticed hereinbefore, was a helper of the vehicle wherein  the Appellant, Dilbagh Singh and Baljeet Singh travelled from Fatuwal to  Kot Budha.

       The prosecution also examined Inspector Dharam Singh to prove the  absence of the three accused from duty from 11 P.M. on 20th February, 1995.   Issuance of fire arms and ammunitions to all them was proved by Head  Constable, Gurmail Singh (PW16).  The injuries on the person of Avtar  Singh and Joginder Singh were proved by Dr. Rana Verma.  Although a plea  of breach of procedures as regard holding of test identification parade was  raised by Dilbagh Singh, no such plea was taken by the Appellant herein.

       The contention of the Appellant herein before the Trial Court was that  he having not been named in the First Information Report, the prosecution  cannot be said to have proved its case against him beyond all reasonable  doubt.  The learned Trial Judge as also the High Court laid emphasis on the  evidence of issuance of fire arms to the three accused and their absence from  duty at about the time when the incident occurred.  Nachhatarpal Singh was  also found to be a trust-worthy witness to prove that the three accused used  the vehicle wherein they travelled from Fatuwal to Kot Budha.  Nine  cartridges were recovered from the place of occurrence and the report of the  ballistic expert established that the same had been fired from the rifles issued  to the accused.  Dilbagh Singh was also identified in the test identification  parade by both Gurpreet Kaur and Avtar Singh.

       The learned Trial Judge found the Appellant and other two co-accused  guilty of commission of the said offences.  The appeals preferred by all the  accused including the Appellant herein were dismissed by the High Court by  reason of the impugned judgment.

       The short question which has been raised in this appeal on behalf of  the Appellant is that the prosecution has not proved any motive on the part  of the Appellant herein and no reason has been assigned as to why the  Appellant being a constable would accompany Baljit Singh for committing  the murder of Kans Kaur and cause injuries to Joginder Singh and Avtar  Singh.  It was further submitted that the Appellant was not identified by  anybody.   

       The death of Kans Kaur and the injuries sustained by Joginder Singh  and Avtar Singh is not disputed.  During the post-mortem the following  injuries were found on the person of Kans Kaur by Dr. Gurpal Singh, PW4:

"1. Lacerated penetrating wound 3/4x 3 cm on the left  and lateral part of left mammary gland, 3 cm lateral of  left nipple.  Margins were inverted and blackening was  not present. 2. Lacerated penetrating wound 2 = x 1 cm on the medial  side of left mammary gland, margins were everted, the  bullet was passing through left breast fat.

3. Lacerated penetrating wound > x > cm on the lower  part of neck and upper part of chest just 1 cm below  trachial notch.  Margins were inverted.

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4. Lacerated wound 1 = x = cm on the back of right  chest just below posterial axillary fold in the middle of  scapula.  On dissection of chest injury No. 3 bullet was  passing through upper part of chest injuring right lung,  right pleural cavity and lung cavity was full of blood and  the bullet was coming out posterially as injury No. 4  described above."

       Avtar Singh was examined by Dr. D.S. Nagpal and he was found to  have suffered the following injuries:

"1. A lacerated wound 0.8 cm x 0.7 cm in size, with  inverted margins on lower part of right glutal region.   Oozing of blood present from the wound.  Probing not  done.

2. A lacerated wound 3.5 cm x 3 cm in size with everted  edges over upper antero medial aspect of right thigh.   Oozing of blood present from the wound.  Probing not  done.  Reg. Expert advice of surgical/ Ortho. Specialist  for injuries 1 & 2.

3. A lacerated wound 0.5 cm x .03 cm in size with skin  loss over lower half of outer bone of right pinna (external  ear).  Oozing of blood present from the wound.

4. A grooved lacerated wound with skin loss \026 4 cm x 0.9  cm in size over right portion of occipital region of scalp.   Oozing of blood present from the wound which is skin  deep."

       Joginder Singh was examined by Dr. D.S. Nagpal and he was  found to have suffered the following injuries:

"1. A lacerated wound 0.8 cm x .08 cm in size with  inverted margins over lower part of left chest on anterior  aspect.  Oozing of blood present from the wound.   Probing not done.

2.  Stomach & large parts of small & large intestines are  protending (sic protruding) out of abdomen through its  left side along with oozing of blood.  The wound over  left size of abdomen is not visible as its view has been  obstructed by viscera coming out & hence its size & type  cannot be described."

       It is not in dispute that the Appellant herein was arrested on 18th  March, 1995.  Baljit Singh was also arrested on the same date whereas  Dilbagh Singh surrendered before Judicial Magistrate on 19th March, 1995.   The Appellant made a confession leading to recovery of a service rifle  having .303 bore along with 10 live cartridges from the bank of river Beas.   A similar recovery was made from Baljit Singh and Dilbagh Singh.  The  arms and ammunition recovered were sent to a ballistic expert and it was  opined that two of the cartridges had been fired from one of the .303 rifles  and two from the other and five from the 7.62 MM rifle (SLR).  The pillow,  shoe and blood stained earth collected from the place of occurrence were  also found to have been stained with human blood.  

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       Both the Trial Court as also the High Court accepted the evidence of  Gurpreet Kaur, PW1, Joginder Singh, PW2 and Avtar Singh, PW3.  Both the  courts, furthermore, accepted the evidence of Nachhatarpal Singh, PW14 to  the effect that he had transported the three accused from Fatuwal to Kot  Budha.   

       The Appellant’s posting with Baljit Singh at the ’nake’ set up at  Fatuwal is not disputed.    Issuance of a .303 rifle with cartridges which had  been issued to him by the authorities is also not in dispute.  The animosity  by and between Baljit Singh and family of his wife also stands fully  established.  It has also been established that the Appellant together with two  co-accused were found missing from the place of his duty at 11 P.M. by  their superior officers wherefor a report had been entered in the daily  register at 11.30 P.M. on 20th February, 1995.

       In view of the aforementioned evidence, motive on the part of the  Appellant herein in commission of the crime takes a back seat which was,  thus, not necessary to be proved the motive.  Evidence of the eye-witnesses  including the injured witnesses having been accepted by the two courts and  as nothing was pointed out by the learned counsel appearing on behalf of the  Appellant as to why the said findings should be disturbed by us, we accept  the same.   

       It is true that in the First Information Report, the name of the  Appellant was not mentioned.  The Appellant’s complicity in the offence has  been proved by Inspector Dharam Singh, PW 15 who was the SHO of the  Beas Police Station who categorically stated that all the three accused were  found missing.  It was also proved beyond reasonable doubt that they were  issued official rifles which were used in the incident.   

       In the First Information Report, it has categorically been stated that  Baljit Singh was accompanied by two other persons in police uniform and  all of them were armed with rifles.  The evidence of Gurpreet Kaur find  supports from the evidence of Joginder Singh and Avtar Singh also.  We  have noticed hereinbefore that both Joginder Singh and Avtar Singh had the  occasion to not only see Baljit Singh but also Dilbagh Singh who not only  broke down the door but also dragged Joginder Singh out from the room.  It  has not been disputed before us that the doors were found broken by the  investigating officer.

All the accused who are constables came to the residence of the first  informant armed with sophisticated weapons and each one of them played  active role.  Baljit Singh and Dilbagh Singh not only broke upon the doors of  the rooms where Jagjeet Singh and Kans Kaur were sleeping, they were fired  at immediately. The common intention on the part of the Appellant with that  of Baljit Singh and Dilbagh Singh has, thus, been established.  

       So far as the contention of identification of the Appellant is  concerned, the High Court in its impugned judgment recorded:

"Sarup Singh had not claimed identification, therefore, it  is not understandable why he was included in the  parade."

       Legality of the test identification parade was questioned by Dilbagh  Singh and not by the Appellant herein.  The recovery of the fire arms and the

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empty cartridges also go a long way in proving the culpability of the  Appellant herein.

       For the reasons aforementioned, we do not find any merit in this  appeal which is dismissed accordingly.  No costs.