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PETITIONER: SARWAN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       26/09/1996

BENCH: KURDUKAR S.P. (J) BENCH: KURDUKAR S.P. (J) MUKHERJEE M.K. (J)

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.P. KURDUKAR, J.      This appeal  under Section  19  of  the  Terrorist  and Disruptive Activities  (Prevention)  Act,  1987  (for  short ’TADA’) is  filed by  the appellant  accused challenging the order of  conviction and  sentence passed  by the Designated Court, Amritsar,  on 18th  May, 1993,  holding the appellant guilty for  offences punishable under Section 302/34, 201 of the Indian Panel Code and Section 3 of TADA. 2.   Briefly stated the prosecution case is as under:- Swarn Singh  (since deceased)  was the real brother of Sohan Singh (PW  4), Sarwan  Singh (appellant)  and  Karan  Singh, Sohan Singh  was  issue  less  and  was  residing  with  the deceased in  his house.  Appellant was  residing separately. Their houses  were adjacent to each other and separated by a common wall.  The deceased was staying in his house with his wife Pritam  Kaur (PW 3), son Balwant Singh (since deceased) and Sohan Singh (pw 4).      It is  alleged by  the prosecution  that on  3rd April, 1991 at  about 8.00  p.m. Pritam  Kaur (PW 3) was sitting in her house  alongwith her  husband Swarn  Singh, son  Balwant Singh and Sohan Singh (PW 4) when two persons whom she could not  identify  came  in  her  courtyard  after  scaling  the compound wall,  They were  armed  with  deadly  weapons.  An electric bulb  was burning  in her  house. Two  unidentified persons then called her husband Swaran Singh and son Balwant Singh to  come out  of the room. Suddenly, they fired at her husband Swarn Singh and son Balwant Singh. Both of them died on the  spot. At  the same  time, one of the assailants also died in  the  courtyard.  The  other  assailant  called  the appellant and  told him  that his  companion had been killed and he  was to  be carried  on gharuka  belonging to Balwant Singh. The assailant threatened the inmates not to raise any alarm and  if the  did, they  would be  shot dead. It is the case of the prosecution that the assailant and the appellant thereafter carried  the dead  body of  the co-accused on the said gharuka. The appellant drove the said gharuka.

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3.   It is  further alleged  by  the  prosecution  that  the appellant and  other assailants  caused the  deaths  of  her husband Swaran Singh and son Balwant Singh. Since it was the night time,  she was  afraid to  go to the police station to lodge a complaint. However, on 4th April, 1991 at about 9.30 a.m. Pritam  kaur (PW  3) lodged  the FIR  (Ex.  Pc).  After registering the  offence, the  police  party  left  for  the village for investigation. 4.   During  investigation   after   drawing   the   inquest panchanamas on  two dead  bodies, they  were sent  for  post mortem examination.  SI Balkar  Singh, (PW  8)  SHO,  Police Station,  Sirhali,  thereafter  carried  out  the  necessary investigation. On  2nd May,  1991, the  appellant came to be arrested while coming from the side of the village Mohanpura on gharuka which was also then seized as it bore the name of Balwant Singh  inscribed on  it. During interrogation of the appellant, he  showed the  place where  the  dead  body  was cremated. After completing the investigation, a charge sheet came to  be filed  against the  appellant for  the  offences mentioned hereinabove. 5.   The appellant  denied the  charge  and  claimed  to  be tried. According  to him,  he has been falsely implicated in the present  crime due to strained relations between him and Sohan Singh. He prayed that he be acquitted. 6.   The prosecution,  in order  to, bring home the guilt of the appellant  examined eight witnesses, of whom Pritam Kaur (PW 3)  and Sohan  Singh (PW 4) are the eye witnesses to the occurrence. SI  Balkar Singh  (PW 8)  is  the  Investigating Officer. Dr Paramjit Singh (PW 5) is the medical officer who conducted the  post mortem examination on the dead bodies of Swarn Singh  and Balwant Singh. The appellant in his defence examined Joginder Singh (DW 1) and Gian Singh (DW 2). 7.   The Learned  judge of  Designated Court on appreciation of oral and documentary evidence on record vide his impugned judgment and  order convicted  the appellant  under  Section 302/34 and  201 of the Indian Penal Code and on first count, sentenced him  to suffer imprisonment for life and a fine of Rs. 500/-; in default of payment of fine, further RI for two months. On  second count, RI for seven years and fine of Rs. 200/-; in  default of  payment of  fine, further  RI for one month. The  Designated Court also found the appellant guilty under Section  3 of  TADA and sentenced him to suffer RI for five years  and to  pay a  fine of  Rs. 200/-; in default of payment of  fine further  RI for two months. The substantive sentences were  ordered to  run  concurrently.  It  is  this judgment and  order which is the subject matter of challenge in this appeal. 8.   At the  outset, it  may  be  stated  that  the  Learned Counsel for  the appellant did not and could not dispute the fact that  Swarn Singh  and  Balwant  Singh  died  homicidal deaths. The  evidence of  Dr. Paramjit Singh (PW 5) who held the autopsy  on the  two dead  bodies noted  as many as four lacerated wounds  on the  dead body  of Swaran Singh and tow lacerated wounds  on the  dead body  of  Balwant  Singh.  He further stated  that these  injuries were  ante  mortem  and caused due to fire arm. They were sufficient in the ordinary course of nature to cause the death of both the victims. We, therefore, unhesitatingly hold that Swaran Singh and Balwant Singh died  homicidal deaths in an incident which took place in the night of 3rd April, 1991. 9.   Coming to the complicity of the appellant (accused) and co-accused (absconding),  the prosecution case mainly rested on the  evidence of  Pritam Kaur (PW 3) and Sohan Singh, (PW 4). Mr. R.C. Verma, the Learned Counsel appearing in support of this  appeal urged  that both these eye witnesses did not

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state in  their evidence  that the  appellant was a party to the  preparation   of  assault   or   infact   present   and participated in  the firing.  He urged that the appellant is convicted with the aid of Section 34 IPC for the substantive offence punishable  under  Section  302  IPC,  however,  the evidence on  record does  not justify  the conviction. It is the case of the prosecution that tow unidentified assailants came from  the side  of the  house of the accused by scaling the compound  wall and  thereafter opened  the fire on Swarn Singh and  Balwant Singh  One of the unidentified assailants gave a  call to the appellant who than came to the courtyard of the deceased. But at the time, the firing was stopped and three  persons   were  already  killed.  In  the  facts  and circumstances of  the case, therefore, Mr. Verma, urged that the accused  cannot be  convicted with the aid of Section 34 IPC for the substantive offence punishable under Section 302 IPC. 10.  Mr. Yadav,  the Learned Counsel appearing for the State of Punjab supported the impugned judgment. 11.  As stated  earlier, the  appellant has  been  convicted with the  aid of  Section  34  IPC  and,  therefore,  it  is necessary to  find out  as to whether the appellant shared a common intention  to commit the murder of either Swarn Singh of Balwant Singh. 12.  Pritam Kaur  (PW 3)  who is  the widow  of Swarn  Singh (since deceased)  in her  evidence has  stated that at about 8.00 p.m.  on 3rd  April, 1991,  when she,  Swaran Singh and Balvinder Singh were sitting in their room, the unidentified assailants came  in their  courtyard by scaling the compound was and  called her  husband Swaran  Singh and  son  Balwant Singh, who  came out  of  the  room.  These  two  assailants suddenly fired  at her  husband and son as a result of which they died  on the  spot. One  the assailant, namely, Narvail Singh  also   died  in   her  courtyard.   Balvinder   Singh (absconding accused)  then called the appellant and told him that his companion was shot dead and he was to be carried on gharuka of  Balwant Singh.  The appellant  then came  to her courtyard and  threatened her  and Sohan Singh (PW 4) not to raise any  alarm and  keep quiet  otherwise they   would  be killed. The  appellant and absconding co-accused carried the dead body  of Narvail Singh on Gharuka belonging to her son. She further  stated that  the appellant  was not  on talking terms with  them as he suspected that Sohan Singh (PW 4) had given his  share in  the lands  to Swarn  Singh and  Balwant Singh (since deceased). 13.  Sohan Singh  (PW 4)  who is  another eye witness to the occurrence stated  that on  3rd April,  1991, at  about 8.00 p.m., tow assailants i.e. Narvail Singh (since deceased) and Balvinder Singh  (the  absconding  accused)  came  into  the courtyard and asked Swarn Singh and his son Balwant Singh to come out  of the house. Suddenly, the deceased Narvail Singh and absconding  accused fired  at Swarn  Singh  and  Balwant Singh as  a result thereof they died on the spot. He further stated that  Balvinder Singh  Butto called the appellant and told him  that his  companion was  killed and  he was  to be carried on  a  gharuka.  The  appellant  then  came  to  his courtyard and  thereafter they  carried  the  dead  body  of Narvail Singh on gharuka. The appellant then warned them not to disclose  the incident  to anybody  otherwise they  would meet the same fate. 14.  This is the only direct evidence led by the prosecution to prove  the complicity  of the  appellant in  the  present crime. Now, the question that needs to be considered in this appeal is  as to whether the above evidence is sufficient to uphold the  conviction of  the appellant  with  the  aid  of

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Section 34 of the Indian Penal Code for causing two murders? The evidence of Pritam Kaur (PW 3) and Sohan Singh (PW 4) is only to  the effect  that two accused, namely, Narvail Singh (since deceased)  and Balvinder Singh (absconding) came from the house  of the  appellant into their courtyard by scaling the compound  wall and  thereafter they opened fire in which Swaran Singh  and Balwant  Singh were  killed. It is not the case of  either of  the eye  witness that  the appellant had participated in  the firing at Swaran Singh and Balwant. The prosecution has  led no  evidence to  show  that  these  two accused and  the appellant  shared  a  common  intention  to commit the  murders when  they came  from the  house of  the appellant by  scaling the  compound  wall.  Admittedly,  the appellant was not present at the time when the incident took place, but  positive evidence  on the record is that he came in the courtyard of Pritam Kaur (PW 3) when Balvinder Singh, the  absconding   accused  told  him  (appellant)  that  his companion had  been killed  and he  was  to  be  carried  on gharuka. The  only circumstance  that could  be said to have been proved by the prosecution against the appellant is that he  and   Balvinder  Singh,   the  absconding  accused  head threatened both  the eye  witnesses  not  to  disclose  this incident to  anybody otherwise  they would be done to death. This evidence, in our opinion, is not sufficient to hold the appellant guilty for the offence of two murders with the aid of Section 34 of the Indian Panel Code. There is no evidence on the  record to  show that  the appellant  had any serious dispute with  Sohan Singh  (PW  4)  or  Swarn  Singh  (since deceased). 15.  There is also another important circumstance which goes against the prosecution, viz, that both these witnesses have failed to  account as  to how  Narvail Singh,  the other co- accused found  dead  in  their  courtyard.  It  is  not  the prosecution  case   that  Balvinder  Singh,  the  absconding accused had  fired at Narvail Singh and as a result thereof, he died. No empty was recovered from the place where Narvail Singh was  shot dead.  Both these  eye  witnesses,  however, stated that  accused persons  took away  the  dead  body  of Narvail Singh.  They also took away with them their weapons. The prosecution, in our opinion, had not unfolded the entire true story  before the Court. This ins the serious lacuna in the prosecution  case and, in our opinion, in the absence of any satisfactory  explanation, as regards the cause of death of Narvail  Singh, the  possibility of  inmates of the house opening a fire on Narvail Singh could not be ruled out. 16.  Coming to the conviction of the appellant under Section 201 of the Indian Penal Code, we are of the opinion that the same is unsustainable because both the prosecution witnesses on this  issue have  turned hostile.  The only  evidence  on record is  of Pritam  Kaur (PW  3) and Sohan Singh (PW 4) to the effect  that the  appellant and  Balvinder Singh carried the dead body of Narvail Singh (co-accused) on a gharuka. It is, therefore, not possible to sustain the conviction of the appellant under Section 201 of the Indian Panel Code. 17.  The appellant  was also  convicted under  Section 3  of TADA. In  our opinion,  there is  no material  on record  to sustain the said conviction. 18.  After considering  the oral and documentary evidence on record, we  are of  the opinion  that the  conviction of the appellant under  Section 302  read with Section 34 and under Section 201 of the Indian Panel Code as also under Section 3 of TADA  is  unsustainable  and  accordingly,  the  same  is quashed and set aside. 19.  In the  result, the  appeal is  allowed.  The  impugned judgment and  order of  conviction and  sentence against the

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appellant is  quashed and  set aside  and the  appellant  is directed to  be set at liberty forthwith, if not required in any other case. If the appellant is on bail, his bailbond to stand cancelled.