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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: GURMIT SINGH & ANR.

DATE OF JUDGMENT:       19/09/1996

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.      The State  of Punjab  -appellant has  filed this appeal under Section  19 of the Terrorist and Disruptive Activities (Prevention) Act,  1987 (for  short  ’  TADA’)  against  the judgment and  order of  acquittal dated  30th January,  1989 passed by  the Designated Court, Hoshiarpur in Sessions Case No. 48  of 15-10-1987  being Sessions Trial No. 50 of 15-12- 1987 arising  out of an FIR No. 80 dated 25-7-1987 of Police Station, Mahilpur.  The respondents-two accused persons were put up  for trial  for offences punishable under Section 302 read with  Section 34  IPC and  Section 3 of TADA for having Committed the murder of Bhag. 2    The prosecution  stor / as disclosed at the trial is as under:-      At about 9.00 a.m. on 25th July, 1987, Ranjit Singh (PW 2) was  working in his fields. Bhag (since deceased) was the resident of village Kharar Achharwal but was residing in the village Chamiala  at the  time of the incident. He was going on his  bi-cycle from  village Rampur  to  village  Fatehpur Kothi, followed  by Gurmit Singh @ Mita) (hereinafter called ’Mita’), a  resident of village Halluwal and Gurmit Singh (A 2) of  Village Chamiala  on bicycles  separately. When  they reached in  front of  the fields of Ranjit Singh (PW 2), A-2 stopped Bhag  and caught hold of him. Mita then gave several blows by  the dagger on Bhag who sustained bleeding injuries and fell down. Bhag raised an alarm "Bachao-Bachao". Hearing This alarm,  Gurmel  Singh  (PW  3),  Lumberdar  of  village Chamiala came  on the spot from the side of village Fatehpur Kothi, witnessed the incident of assault and remained at the spot. Ranjit Singh (PW 2) went and lodged the FIR (Ex.PE) at 10.20 a.m.  with SI  Avtar Singh (PW 5), SHO Police Station, Mahilpur who  had come  to the  village Khanpur.  The police party headed  by SI  Avtar Singh  reached at  the  place  of occurrence and  started  the  lnvestigation.  Blood  stained earth was  cocollected by  SI Avtar Singh (PW 5) and kept it in a  sealed parcel vide memo Ex. PK. A  rough site plan Ex.

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S was  also prepared. After inquest panchnama, the dead body of Bhag  was sent for post mortem examination. Bicycle Ex.PC of deceased  was seized vide memo Ex.PM. The two bicycles of A-1 and A-2 which were lying at the place of occurrence were also taken  charge vide  memo Ex.  PH and  marked Ex.P3  and Ex.p4.      3. SI  Avtar Singh (PW 5) then deputed ASI Baldev Singh and constable  Inderjit Singh  to search  the accused. Since both the  accused were  not found in the village, the police party suspected  that they  might be  hiding in  the jungle. They,  therefore   surrounded  the   jungle  and  ultimately succeeded in arresting both the accused. During the personal search of  A-1, a  dagger (Ex.PI) was recovered from the dub (pocket) of  his Pyjama  which was  then  seized  vide  memo Ex.P5. Since blood stains were noticed on the shirts worn by A-1 and  A-2. the same were seized and marked Ex.P5 and Ex.6 respectively and  kept them  in two  sealed  parcels.  These articles  were   sent  to  the  Director,  Forensic  Science Laboratory   for    its   report.   After   completing   the investigation, both  the accused  were  charge  sheeted  for offences punishable  under Sections  302/34  of  the  Indian Penal Code and Section 3 of TADA. 4.   Both the  accused pleaded  not quilty to the charge and stated that they are innocent and be acquitted. 5.   In order  to bring  home the quilt of both the accused, the prosecution examined two eye witnesses i.e. Ranjit Singh (PW 2)  and Gurmel  Singh (PW  3) in  addition to the formal witnesses  Lo   prove  the   seizure  Panchnamas   etc.  Dr. R.S.Mehal(PW 1)  was  examined  to  prove  the  post  mortem examination report  and the  cause  of  death.  The  defence examined Karnail  Singh (DW  1) the  Sarpanch of the village Kaharpur. 6.   The  Learned   Judge  of   the  Designated   Court   on appreciation of  the oral and documentary evidence on record disbelieved the  evidence of  both the  eye witnesses on the ground that  their presence  at the  time of  occurrence was doubtful. Having rejected the evidenec of eye witnesses, the learned trial judge opined that the other evidence on record was not sufficient to hold the dccused persons quilty of the offences for  which they  were tried.  Consistent with these findings, the  learned trial  judge  recorded  the  impugned order of  acquittal. it  is this order of acquittal which is the subject matter of challenge in this criminal appeal. 7    Ms. Rupinder  Kaur, the  learned Advocate  appearing in support of  this appeal  urged that  the learned trial judge has completely  misread the  evidence of  two eye witnesses. She urged  that the  finding of the trial court that because of obstructions  caused due to the high rise growth of reeds by the  side of  the road,  none of  the eye witnesses could have seen  the incident  in question. This finding was based upon mere  surmises and  certain erroneous  assumptions. The Learned Counsel urged that the evidence of both these eye witnesses is totally credible which finds corroboration from the presence  of human  blood  of  the  same  group  of  the deceased on  tho clothes  of the  accused. She further urged that both  the accused  were arrested  on the  very same day from  the   forest  and   there  was   no  question  of  any manipulation  by   the  investigating  agency.  The  Learned counsel, threfore,  urged that the impugned order is totally perverse, unsustainable  and the  same be set aside and both the accused  be held  guilty of  the offences for which they were tried. 8.   Mr.  R.S.Sodhi,   Learned  Counsel   for  the   accused supported  the   order  of   acquittal  and  urged  that  no interference by  this Court  is called for and the appeal be

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dismissed. 9.   At the  outset, it  may be  stated that  this  criminal appeal is filed under Section 19 of TADA and being the first appeal against  the judgment  and order  of  the  Designated Court, this  Court can re-appreciate the evidence on record. With the  assistance of  learned counsel for the parties, we have gone  through the impugned judgment and the evidence on record. 10.  It is  not and  cannot be  disputed  that  Bhag  (since deceased) died  a homicidal  death.  Dr.  R.S.Mehal  (PW  1) performed the  autopsy on  the dead body of Bhag and noticed as many  as twelve  ante mortem  incised injuries,  of which injury No.  12 was  penetrating  the  right  pleural  cavity cutting the sternum and going into the right lung. The right pleural cavity  was full  of blood. He opined that the death was on  account of  haemorrhage and shock due to in injuries caused to  the brain,  lungs, heart  and liver.  He  further opined that these injuries were individually or collectively sufficient to  cause the  death in  the ordinary  course  of nature. The  death was  immediate and  it must have occurred within 12  hours before  the post  mortem. In  view of  this experts opinion,  we safely  conclude that  Bhag met  with a homicidal  death   because  of   various  incised   injuries inflicted on his person. 11.  Coming to  the complicity of the accused in the present crime,  the   prosecution  story  completely  rests  on  the evidence of  the two eye witnesses, i.e. Ranjit Singh (PW 2) and Gurmel  Singh (PW  3). It  is also on record that Gurmel Singh (PW 3) had lodged the First information Report (Ex.PE) with the police within two hours of the incident. This First Information Report  did make  a  reference  to  the  assault caused by  both the  accused. It  is therefore,  quite clear that within  a short  time, the names of the assailants were disclosed by Gurmel Singh (PW 3) in his report. 12.  Ranjit Singh  (PW 2) in his evidence has stated that in the morning of 25th July, 198?, he was working in his fields and at  that time  he saw  Bhag passing  over his  fields on bicycle followed  by both  the accused  on their  respective bicycles. He  knew both  the  accused.  Gurmit  Singh  (A-2) caught hold of Bhag and thereafter Mita (A-1) caused several dagger blows  on his  nose, right  side of  forehead,  right flank, back  and two  on the  left flank. Bhag sustained the bleeding injuries,  fell down  and raised  an alarm  Bachao- Bachao. In the meantime, Gurmel Singh (PW 3), a Lumberdar of village Chamiala  came near  the place  of  occurrence.  The accused then  fled away.  Gurmel Singh  (PW 3) remained near the dead  body and he proceeded towards the village at about 10.20 a.m. to report the incident to SI Avtar Singh, SHO (PW 5) who happened to be present in the village Khanpur. An FIR (Ex.PE) was  then recorded  by SI Avtar Singh who thereafter came to the place of incident alongwith his police party and started the  investigation.  this  witness  was  searchingly cross-examined on behalf of the accused and a suggestion was made to him that because of two pucca walls on both sides of the bridge  and high  rise growth  of reeds on both sides of the  roads,   it  was  not  possible  for  him  to  see  the occurrence.  The  witness  had  denied  the  suggestion  and emphatically asserted that he was very close to the place of incident and  despite the reeds and the walls on the bridge, he could see the assault caused by both the accused on Bhag. A suggestion  was also  put to  this  witness  that  at  the relevant time  he was  not in  his fields knew nothing about the incident.  This suggestion was also denied by him. There is no  challenge to  the evidence  of this  witness that  he owned the  agriculture fields near the place of incident and

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if this fact had gone unchallenged it must follow that the witness in  the ordinary  course of  his vocation  being  an agriculturist would  be in  his fields. lt is also pertinent to note  that this  witness had  disclosed the names of both the accused in his First lnformation Report which was lodged within  two   hours  of  occurrence.  The  trial  court  has erroneously assumed  that because  of the  two walls  on the bridge and  the growth of reeds of about 7 to 8 feet, it was not possible  for this  witness to   see  the incident. This assumption on  the part of the trial court in our considered view was  totally  unsustainable.  We,  therefore,  feel  no hesitation in  accepting the  evidence of this witness being truthful. 13.  Gurmel Singh  (PW 3)  is   another eye  witness who had also given the same version like Ranjit Singh (PW 2). Gurmel Singh(PW 3)  has stated  that when he heard the alarm raised by Bhag  he came  to the  place of  occurrence and  saw  the assault on  Bhag by  both the  accused. The  witness further stated that  he waited  near the  dead body  whereas  Ranjit Singh (PW  2) went  to the village to lodge the report. This witness was  again searchingly  cross-examined on  behalf of the defence  and there  is hardly  any material  brought  on record to  discredit  his  evidence.  The  trial  court  has totally misread  the evidence of this witness. We accept his testimony as  trustworthy which  in all material particulars supports the evidence of Ranjit Singh (PW 2). 14.  Apart from the evidence of these two eye witnesses, the prosecution has also relied upon certain other circumstances i.e. the  recovery of  the dagger (Ex.PI) from the person of A-1, blood  stained shirts  of both  the accused,  and blood stained earth. All these articles were sent to the Director, Forensic Science  Laboratory for  its report.  The report is dated 3rd  September, 1987  Ex.PU.  The  dagger  was  marked article A,  lumps of  earth and  loose earth marked b, khaki colour   marked Ex.C  of Gurmit Singh @ Mita (A-1) and black colour shirt  of  Gurmit  Singh  (A-2)  marked  Ex.D.  these articles  Ex.A,b,c   &  D  were  examined  biologically  and serologically and  it was  concluded ’that  all the exhibits were stained  with human  blood of group A’. The blood group of the  deceased was "A". This report again corroborates the evidence of  Ranjit Singh  (PW 2) and Gurmel Singh (PW 3) as regards  the  complicity  of  the  accused.  No  explanation whatsoever  was   offered  by  both  the  accused  in  their statement  recorded   under  Section  313  of  the  Criminal Procedure Code. 15.  The respondent  accused has  examined Karnail Singh (DW 1) in  support of  his defence.  Karnail Singh  (DW  1)  has stated  that   he  was  the  Sarpanch  of  village  Kaharpur panchavat and  on the  date of  occurrence, he  was going to village Kothi When he reached near the bridge, he saw a dead body lying  there. He  further stated that the reeds on both the sides  of the bridge were more than 6 to 7 feet high and there was  also   growth of  Tahli trees  near that Choi. He then stated  that if  one stands on the said bridge, nothing present in  the nearby  fields is  visible. There  was a bi- cycle lying  near the  dead body  and no  other bi-cycle was seen there.  At about  9.30 a.m.,  the  police  had  arrived there.  During   the  cross-examination  on  behalf  of  the prosecution, he  admitted that  he did  not go to the police station to inform about the presence of the dead body. After going through  the evidence.  we  are  satisfied  that  this witness is  not reliable.  Being a Sarpanch, it was his duty to go  and inform  about the  dead body  to the  police. His evidence appears  to us  a tailor  made one  to support  the defence and  we have no hesitation in rejecting his evidence

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as unreliable. 16.  After  going   through  the   evidnce  on  record  very carefully, we  are of  the considered  view  that  there  is unimpeachable evidence on record to hold that Gurmit Singh @ Mita son  of Ganda  Singh (A-1)had  assaulted Bhag  with the dagger  causing  his  death  whereas  Gurmit  Singh  son  of Shangara Singh(A-2) by holding the deceased Bhag Facilitated A-1 to  cause murderous  assault on him (Bhag). The evidence on record,  therefore, clearly  shows that  A-2  shared  the common intention to commit the murder of Bhag. 17.  In the  result, the  appeal is  allowed.  The  impugned judgment and  order of  acquittal is  quashed and set aside. Gurmit Singh  @ Mita  son of  Ganda Singh (A-1) is convicted for the  offence punishable  under Section 302 of the Indian Penal Code and sentenced to suffer life imprisonment. Gurmit Singh son  of Shangara  Singh (A-2)  is also held liable for murder of  Bhag, an  offence punishable under Section 302/24 of the  Indian Penal  Code  and  sentenced  to  suffer  life imprisonment. Since  A-1 and  A-2  are  on  bail,  they  are directed to  surrender to  their bailbonds  to serve out the remainder of  their sentences.  The order of acquittal under Section 3 of TADA is affirmed.