Punjab-Haryana High Court
Jagtar Singh vs The State Of Punjab on 22 February, 2013
Author: S.S.Saron
Bench: S.S.Saron
Crl. Appeal No. 120-DB of 2007(O&M) -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 120-DB of 2007(O&M)
Date of Decision: 22.02.2013
1. Jagtar Singh, son of Tarsem Singh, resident of Bhagowal,
Tehsil Batala, District Gurdaspur
2. Baljinder Singh, son of Gujmej Singh, resident of House No.23,
Preet Nagar, Batala Road, Amritsar.
...Appellants
V/s.
The State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE S.S.SARON.
HON'BLE MR. JUSTICE S.P.BANGARH.
Present: Mr. R.K.Handa, Advocate with
Mr. Madan Sandhu, Advocate
for the appellants.
Mr. P.P.S.Thethi, Additional Advocate General, Punjab
for the respondent.
****
S.P.BANGARH, J.
The appellants have assailed the judgment of conviction and order of sentence dated 28.09.2006 passed by the learned Additional Sessions Judge, Amritsar in Sessions Case No. 90 of 2005 emanating from FIR No. 68 dated 15.04.2004 under Sections 302/307/452/34 of Indian Penal Code ('IPC' for short), Police Station City Tarn Taran, whereby, they were convicted for commission of offences punishable under Section 449 IPC, Section 302 read with Section 34 IPC and under Section 302 read with Section 34 IPC (on two counts). They were sentenced to undergo rigorous imprisonment for ten years and to pay a fine of `5000/-, in default of payment of fine to further undergo R.I. for one year each for commission of offence punishable under Section 449 IPC. They were also sentenced to undergo imprisonment for life and to pay a fine of `5000/-, in default of payment of fine, to further undergo R.I. for one year each, for Crl. Appeal No. 120-DB of 2007(O&M) -2 - commission of offence punishable under Section 302 read with Section 34 IPC (on two counts). They were also sentenced to undergo rigorous imprisonment for ten years and to pay a fine of `5000/-, in default of payment of fine, to further undergo R.I. for one year each, for commission of offence punishable under Section 307 IPC read with Section 34 IPC (on two counts).
Case of the prosecution was registered on the basis of statement of Paramjit Kaur-complainant, resident of Akal dera, Mohalla Nanaksar, Tarn Taran. In her statement, she stated before the police that she was married with Baba Jagtar Singh s/o Sajjan Singh, resident of village Marri Kamboke and had two daughters. She had adopted a son. They had been residing at Mohalla Nanaksar, Akal dera, Tarn Taran since 1995. That land was taken on lease for 99 years from one Jarnail Singh. Her husband Jagtar Singh had installed Holy Guru Granth Sahib on attic of this house and used to deliver holy sermons to congregation on every Sunday. Common food (langar) used to be distributed. Everyday meal used to be prepared for 15-20 persons at that place. On 14.04.2004, Baba Jagtar Singh had gone to call upon Colonel Sahib at Ferozepur. At about 7 P.M. two young men came at dera to call upon him.
Complainant offered them hospitality and told them that Baba Jagtar Singh would be coming shortly. One of them was 20/22 years old having height of five feet 6/7 inches and wearing black turban, trousers and shirt. His beard was thick. Other was having trimmed beard and having height of five feet 6/7 inches. He was of fair complexion and wearing small turban on his head. At about 9:30 p.m. Baba Jagtar Singh came back. Both these young men touched his feet. Baba Jagtar Singh came back after urinating and went upstairs to the place where holy Guru Granth Sahib was installed to pay obeisance. Both young men also followed him and went upstairs after him. Complainant along with Gurwaryam Singh son Crl. Appeal No. 120-DB of 2007(O&M) -3 - of Ajit Singh, resident of Marri Megha, Manjit Singh Nihang and Jai Roop resident of Alwar had also gone upstairs, where the person wearing turban had picked up pistol and fired gun shot on Baba Jagtar Singh. Jai Roop and Manjit Singh Nihang stepped ahead to save Baba Jagtar Singh. Those young men also fired shots on them. Complainant and Gurwaryam Singh raised hue and cry. Thereupon, both the appellants went away. Baba Jagtar Singh, Jai Roop and Manjit Singh Nihang were injured in this firing. Arrangements were made to take injured to hospital and Manjit Singh Nihang succumbed to injuries on the way to hospital. Baba Jagtar Singh was also referred to Amritsar by the doctors, who also, later on, succumbed to fire arm injuries received in this incident.
The aforementioned statement Ex.PA of Paramjit Kaur wife of Baba Jagtar Singh was recorded on 15.04.2004 at about 11:30 P.M. by Gurmit Singh, Inspector, the then SHO of Police Station City Tarn Taran, that was read over and explained to Paramjit Kaur, who after admitting correctness, thereof, had put her thumb impression on her statement. Gurmit Singh, Inspector made his endorsement Ex.PA/1, thereon, and sent the same through Shinder Singh, Head Constable to the Police Station, where formal FIR Ex.PA/2 was recorded by Rajinder Pal, Sub Inspector.
Later, Gurmit Singh, Inspector along with police officials and Paramjit Kaur-complainant went to mortuary of Civil Hospital, Tarn Taran. He prepared inquest report Ex.PG on the corpse of Manjit Singh Nihang, that was recognized by Hardev Singh and Gurdev Singh who were already present in the Civil Hospital, Tarn Taran. Later, the corpse of Manjit Singh Nihang was entrusted to Surjit Singh and Danial Masih, Constables along with request application Ex.PH for getting conducted autopsy, thereon. Later Gurmit Singh, Inspector visited the place of occurrence along with Paramjit Kaur-complainant and other police officials. He recovered seven empty cartridges, four slugs of lead from the place of occurrence. Those Crl. Appeal No. 120-DB of 2007(O&M) -4 - were sealed into a parcel with a seal bearing impression 'GS', that was seized vide recovery memo Ex.PI. He also lifted blood from the floor and put it into a plastic box that was sealed by him with a seal bearing impression 'GS' and that parcel was seized vide recovery memo Ex.PJ. Both recovery memos Ex.PI and Ex.PJ were attested by ASI Mukhwinder Singh and Jai Pal.
Gurmit Singh, Inspector prepared rough site plan of place of occurrence Ex.PK. He received message about the demise of Baba Jagtar Singh, who was admitted in Shri Guru Tegh Bahadur Hospital, Amritsar. Thereupon, he along with other police officials reached Shri Guru Teg Bahadur Hospital, Amritsar. He prepared inquest report Ex.PL of corpse of Baba Jagtar Singh that was identified by Santokh Singh and Gurpal Singh and handed over to Sukhdev Raj and Jai Pal, Constables for getting conducted autopsy thereon along with request application Ex.PM.
When Gurmit Singh, Inspector was present outside the police station, Surjit Singh and Danial Masih, Constables came to him and produced before him clothes of Manjit Singh which were a pajama, an underwear (kashehra in the local parlance) and a vest (fatuhi in the local parlance), which were sealed into a parcel with the seal bearing impression 'GS' that was seized by memo Ex.PN, attested by Surjit Singh and Daniel Masih, Constables. Pyjama, underwear (kashehra), banian and shirt (kurta) of Jagtar Singh were produced before him by Sukhdev Raj and Jai Pal, Head Constables, that were sealed into a parcel by Gurmit Singh, Inspector with his seal bearing impression 'GS' and that parcel was seized by recovery memo Ex.PO which was signed by Sukhdev Raj and Jai Pal, Head Constables. Later, Gurmit Singh, Inspector deposited both the parcels with Jaspal Singh, MHC of Police Station, City Tarn Taran.
On 16.04.2004, Gurmit Singh, Inspector had come to Mahajan Hospital, Amritsar, where Gurwaryam and Jairoop injured in that incident Crl. Appeal No. 120-DB of 2007(O&M) -5 - were indoor patients. He recorded their statements. On that day, doctor did not hand over any injury report of these injured persons. On 23.04.2004, Gurmit Singh, Inspector was present in Police Station, City Tarn Taran, where Satinder Kaur (sister in law) of Manjit Singh Nihang (deceased) came and photo and clothes of latter were shown to her. She recognized him as Gurdev Singh alias Manjit Singh Nihang and memo Ex.PP in this regard was prepared by Gurmit Singh, Inspector, that was signed by Satinder Kaur and Jaspal Singh, MHC. Before recording statements of injured persons Gurwarayam and Jairoop in Mahajan Hospital, written opinion was obtained from the doctor to know about their fitness to make statements, by moving applications Ex.PQ, whereon doctor opined vide Ex. PQ/1, that they were fit to make statements which were recorded.
Paramjit Kaur-complainant and Sharanjit Kaur daughter of Baba Jagtar Singh identified the appellants from a photograph published in daily Jagbani Ex.P1 in its issue dated 17.08.2004, that was taken into possession vide recovery memo Ex.PB. Appellants were arrested in this case as accused on 19.08.2004.
After completion of investigation, Station House Officer of police station instituted report under Section 173 Cr.P.C. to the effect that it appeared that appellants have committed offences punishable under Sections 307, 302, 452 IPC read with Section 34 IPC before the learned Illaqa Magistrate. On presentation of police report, copies of documents as required under Section 207 IPC were supplied to the appellants and the case was committed to the learned Court of Session that was entrusted to the learned trial Court who framed charge against the appellants for the offences punishable under Section 449/34 IPC on two counts and under Section 307/34 IPC also on two counts and under Section 302/34 IPC under two counts, whereto, the appellants pleaded not guilty and claimed Crl. Appeal No. 120-DB of 2007(O&M) -6 - trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined Paramjit Kaur as PW-1, Sharanjit Kaur as PW-2, Gurwaryam Singh as PW-3, Dr. Jagjit Singh as PW-4, Dr. Manpreet Kaul as PW- 5, Dr. Ashok Mahajan as PW-6, Sukhdev Singh, HC as PW-7, Sukhjit Singh as PW-8, Gurmit Singh, Inspector as PW-9, Rishi Ram as PW-10 , Dr. Ashok Mahajan as PW-11, Balwinder Singh, Sub Inspector as PW-12, Sandeep Kumar, Sub Inspector as PW- 13, Jaspal Singh as PW-14, Hardev Singh, Head Constable as PW-15, Gurnam Singh as PW-16, Chagar Singh, Sub Inspector as PW-17, Sukhdev Singh, Sub Inspector as PW- 18, J.R.Upadhayay as PW-19 and close evidence later.
After the close of prosecution evidence, the appellants were examined under Section 313 Cr.P.C, wherein, they pleaded innocence and false implication in this case. They gave their own versions that they have been falsely implicated in this case. Jagtar Singh, appellant stated that he was innocent and was arrested by the police of Police Station, Lopoke on 03.05.2004 in case FIR No. 105 dated 03.05.2004, case FIR No. 113 dated 12.05.2004 and case FIR No. 111 dated 11.05.2004, wherein, he was acquitted. He also produced certified copies of judgment Ex.D1 to D4. Both the appellants were called upon to enter in defence and they tendered certified copy of judgment Ex.D4 dated 16.09.2005 and certified copy of order dated 14.11.2005 Ex.D5. Later, they closed the defence evidence.
After hearing both the sides, learned trial Court vide impugned judgment and order of sentence convicted and sentenced the appellants as described in the first paragraph of this judgment. Aggrieved, thereagainst, the appellants who were accused before the learned trial Court have come up in this appeal with prayer for acceptance, thereof, and for their acquittal of charge framed against them by the learned trial Court.
We have heard the learned counsel for the appellants and Crl. Appeal No. 120-DB of 2007(O&M) -7 - learned Additional Advocate General, Punjab for the respondent and perused the record of the learned trial Court with their assistance.
PW-1 Paramjit Kaur vide her statement Ex.PA narrated the occurrence before the police, while appearing as PW-1, she reiterated her statement Ex.PA. PW-2 Sharanjit Kaur also deposed regarding the manner in which the occurrence had taken place. PW-3 Gurwaryam Singh who was injured in this incident also deposed about the occurrence.
PW-4 Dr. Jagjit Singh conducted autopsy on the dead body of Manjit Singh Nihang on 15.04.2004 and found following injuries, thereon, "1. A circular wound with back margins of 0.5 x 0.5 cm in size was present on the front of chest on the left side 2 cms from the mid-line and 10 cms from the left nipple. Semi clotted blood was present.
2. Two wound of each size of 0.5 x 0.5 cms, 1x1 cm each was present on the back of chest with everted margins. One in midline and another 2 cms above and lateral to the previous wound. Semi clotted blood was present. On dissection of injuries, a white gutter was present connecting the two wounds. Heart and the major blood vessels were injured. Thoraxic cavity was full of blood. Left lung was also injured." PW-4 Dr. Jagjit Singh also opined that cause of death of Manjit Singh Nihang was due to injuries on vital organs leading to shock and haemorrhage which were sufficient to cause death in ordinary course of nature. He opined that time intervened between sustaining of injuries and death was immediate and in between death and post-mortem examination was within 24 hours. He brought the original post mortem report and proved carbon copy, thereof, Ex.PC and pictorial diagram Ex.PC/1.
PW-5 Dr. Manpreet Kaul conducted autopsy on the dead body of Baba Jagtar Singh on 15.04.2004 and found following injuries on his person:-
"1) 1 x 0.5 cms a lacerated wound with inverted margins was present in the centre of epigastriun abraded collar was present Crl. Appeal No. 120-DB of 2007(O&M) -8 - on right border and was oval in shape. Clotted blood was present.
2) 0.8 x 0.7 cms lacerated wound with inverted margins was present on left hypochrndrium 3.5 cms below costal margins and was 7 cms towards left from midline. Abraded collar was present on the left border.
3) 1.5 x 1 cms lacerated wound with everted margins was present on right lateral side of flank of abdomen in lumber region. On dissection, injury No. 2 was communicating with injury No. 3 thereby injuring intervening structures i.e. anterior abdomonal wall paritonium using of omentum transverseolon and mesentry of small intestines multiple perforations were present in small intestine and omentum and were passing out through right lateral parital wall of abdomen. The divergent type of track was present with infilteration in the track about 1.5 litres of fluid plus clotted blood was present in paritorial cavity mixed with feacal metal.
4) 0.8 x 0.5 cms lacerated wound with everted margins was present on back and left side of chest in infra scapular region.
10 cms below inferior angle of left scapula. A reddish blue contusion was present all around the wound. 4 cm in diameter (A shored exit wound) blood coming out of perfusely from the wound. On dissection, injury No. 1 was communicating with injury No. 4 thereby injuring interior abdomenal wall, pertionium, stomach, diaphragn into left plural cavity contusing posterior surface of heart of dimension 3 x 3.5 cms and lower log of left arm was found perforated. Left plural cavity contained 670 cc of fluid plus clotted blood. The track was directed backward and lateraly and clotted blood was present in track.
5) 3.2 x 1.2 cms reddish brown abrasion was present on front of left side of abdomen. 10.2 cms proximal to left anterior superior iliac spine.
6) 1.7 x 0.7 cms lacerated wound with enverted margins was present on dorsam of right hand. 1.3 cms proximal to knukle of little finger. Abraded collar was present all around.
7) 2.3 x 0.4 cms lacerated wound was present on palmer aspect of right hand with everted margins 1.2 cms proximal to fourth metacarpo phalangeal joint. Clotted blood was present. Crl. Appeal No. 120-DB of 2007(O&M) -9 - On dissection, injury No. 6 was communicating with injury No. 7 by injuring an intervening structures.
8) 3.1 cms x 2.1 cms lacerated wound was present on right little finger. 1.5 cms proximal to tip and avulsing its distal portion. Clotted blood was present.
He further testified that all the injuries were anti mortem in nature and cause of death in this case in his opinion was due to haemorrhage and shock as a result of multiple fire arms injuries which were sufficient to cause death in ordinary course of nature. He further testified that probable time that elapsed between injury and death was about few hours as per hospital record and between death and examination was within 12 hours. He further testified that after conducting post mortem examination, he handed over to police sutured dead body along with his belongings duly initialled carbon copy of PMR and police papers 1 to 24 pages duly signed and hospital record of Guru Nanak Dev Hospital 1 to 24 pages duly initialled. This witness also brought the post mortem register and proved copy of the post mortem report Ex. PD and pictorial diagram depicting the injuries Ex.PD/1.
PW-6 Dr. Ashok Mahajan, who is also the proprietor of Mahajan Hospital testified that on 15.04.2004 at 1:40 A.M., Jagroop Singh was admitted with gun shot wound and was discharged on 15.04.2004 at 02.00 P.M. He was attended by J.P. Singh Chhina. This witness also brought original bed head ticket of Gurwaryam Singh who was also admitted on 15.04.2004 due to gun shot injury and was discharged on 18.04.2004.
PW-7 Sukhdev Singh, Head Constable tendered in evidence his affidavit Ex.PE.
PW-8 Sukhjit Singh tendered in evidence his affidavit Ex.PF. PW-9 Gurmit Singh, Inspector conducted the investigation of this case and he deposed on the lines of his investigation, which has been Crl. Appeal No. 120-DB of 2007(O&M) -10 - reproduced in the earlier paragraphs of this judgment. During his deposition, parcels were opened and he proved empty cartridges Ex.P2 to P8, slugs Ex.P9 to Ex.P12, parcels containing blood Ex.P13, underwear (kashehra) Ex.P15, fatuhi Ex.P16, baniyan Ex.P17 and pyjama Ex.18 of Baba Jagtar Singh.
PW-10, Rishi Ram prepared site plan Ex.PR.
PW-11 Dr. Ashok Mahajan also brought the bed head ticket of Jai Roop Singh who was admitted in his hospital on 15.04.2004 with a history of gun shot wound and fracture pelvis. He testified that this injured was discharged on 18.04.2004. He also testified that Ex.PS is the correct photocopy of the bed head ticket of Jai Roop Singh. Ex.PS/1 is the photocopy of history sheet and Ex.PS/2 to PS/15 are the photocopies regarding treatment of the patient.
PW-12 Balwinder Singh, Sub Inspector also brought the FIR register and proved the copies of FIRs registered in Police Station Lopoke containing FIR No. 111 dated 11.05.2004, FIR No. 112 dated 11.05.2004, FIR No. 113 dated 11.05.2004 and proved photocopies, thereof, Ex.PT, Ex.PU and Ex.PV respectively.
PW-13 Sandeep Kumar, SHO also deposed that on 17.08.2004, he was posted as SI/SHO of Police Station, City Tarn Taran, on that day, he was present in his office Paramjit Kaur PW-1 and Sharanjit Kaur PW-2, both widow and daughter respectively of Baba Jagtar Singh came and produced issue dated 17.08.2004 of daily Jagbani newspaper as Ex.P1, that was seized vide memo Ex.PB which was attested by both PW- 1 and PW-2 and also by Chagar Singh, Sub Inspector. Appellants were nominated as accused in this case and further investigation of this case was handed over to Chagar Singh, Sub Inspector. He further testified that on 07.09.2004, he again took over the investigation of the case and again interrogated the co-accused Didar Singh and on interrogation, he suffered Crl. Appeal No. 120-DB of 2007(O&M) -11 - disclosure statement that he had kept concealed an AK47 rifle, two magazines and 30 cartridges. Pursuant to this disclosure statement, he got recovered armaments and a separate case vide FIR No. 123 was registered in Police Station Sirhali.
PW-14, Jaspal Singh, MHC tendered in evidence his affidavit Ex.PW.
PW-15, Gurdev Singh, HC tendered in evidence his affidavit Ex.PX.
PW-16 Gurnam Singh testified that on 25.10.2004, he was posted as Sub-Divisional Judicial Magistrate, Tarn Taran and on that day, an application Ex.PY was moved by Paramjit Singh, ASI of Police Station, City Tarn Taran for getting recorded statement of Paramjit Kaur under Section 164 Cr.P.C. He also testified that Paramjit Singh, ASI had also moved another application Ex.PZ on the same day for getting recorded statement of Sharanjit Kaur under Section 164 Cr.P.C. He further testified that both Paramjit Kaur and Sharanjit Kaur were identified by Paramjit Singh, ASI and he passed orders Ex. PY/1 and PZ/1 on these applications. He also testified that he recorded statements Ex.PAA of Paramjit Kaur and Ex.PAB of Sharanjit Kaur and both the statements were read over and explained to Paramjit Kaur and Sharanjit Kaur.
PW-17 Chagar Singh, Sub Inspector also testified that on 17.08.2004, when he was present in the police station, Paramjit Kaur and Sharanjit Kaur came to police station and produced newspaper daily Jagbani, that was seized vide memo Ex.PB which was attested by him. He also testified that on 18.08.2004, he went to Police Station Mattewal and seized photocopies of disclosure statements of Jagtar Singh, Baljinder Singh and Harjant Singh vide memo Ex.PAC on 19.08.2004 and Jagtar Singh and Baljinder Singh were arrested in this case from Central Jail, Amritsar after getting production warrants and were interrogated. They Crl. Appeal No. 120-DB of 2007(O&M) -12 - identified the place of occurrence and memo Ex.PAD in this respect was prepared by him. He further testified that on 27.08.2004, Harjant Singh @ DC accused was arrested in this case from Central Jail, Gurdaspur after getting production warrant from the learned Court and Didar Singh was arrested on 05.09.2004.
PW-18, Sukhdev Singh, Sub Inspector also testified that appellants were interrogated in this case by him about this occurrence.
PW-19 J.R. Upadhayay testified that he had come to Punjab on 12.12.2004 along with his family and he went to Akal dera of Baba Jetha Singh in Tarn Taran and occurrence took place in the evening of 14.04.2004 at about 9:00 P.M., and at that time, he was present in the dera and Baba Jagtar Singh was near him at that time. He further testified that two persons were sitting there, a disciple of Baba Jagtar Singh was also sitting there and he was also about to sit after paying obeisance to Baba Jagtar Singh and then one of those persons stood up and started firing on Baba Jagtar Singh and one shot from the fire arm also hit him. He further testified that he cannot recognize assailants who were young persons of aged about 20/25 years. He further testified that his medical examination was conducted in Mahajan hospital.
Learned counsel for the appellants contended that the latter are not named as accused in FIR and, therefore, it is a case where no-one identified the appellants as assailants. He also contended that no test identification parade of the appellants was got conducted by the police for getting them identified from PW-1 and PW-2. Even otherwise PW-3 Gurwaryam Singh did not recognize the appellants as his assailants. He also contended that PW-19 who was injured in this incident had also not recognized the appellants as his assailants.
Learned counsel for the appellants also contended that the latter allegedly confessed this incident that was reported in the daily Crl. Appeal No. 120-DB of 2007(O&M) -13 - Jagbani newspaper Ex.P1 and, therefore, the confession of this incident before the police which was published in newspaper Ex.P1 cannot bind the appellants being hit by Section 25 of the Evidence Act. So, he contended that it is a case of no evidence and the learned trial Court wrongly convicted and sentenced them. So he contended that the impugned judgment and order may be set aside and the appellants may be acquitted of the charge framed against them by the learned trial Court by according them benefit of doubt.
On the other hand, learned Additional Advocate General, Punjab for the respondent contended that the incident had occurred and initially, the appellants could not be identified, but their photograph appeared in the newspaper daily Jagbani in its issue dated 17.08.2004 and from the photographs published, therein, PW-1 and PW-2 identified the appellants, as their assailants and they went to the police and told that the persons whose photograph appeared in the newspaper were the assailants of the incident that had occurred on 14.04.2004 in their dera. He also contended that the test identification parade in this case was not required to be arranged, as the appellants had already been identified as assailants by PW-1 and PW-2 from the photographs published in the daily Jagbani newspaper on 17.08.2004. He also contended that PW-3 and PW-19 did not identify the appellants, but that has no bearing on the case of the prosecution, especially when PW-1 and PW-2 had identified the appellants, as assailants of the incident. He contended that since PW-3 and PW-19 had been injured, they might have lost their ability to recognize the assailants as the injuries would have occupied them. So, it was contended that the case of the prosecution cannot be repelled due to non-recognition of the assailants by PW-3 and PW-19.
We have given thoughtful consideration to the contentions raised by the learned counsel for the appellants and learned Additional Crl. Appeal No. 120-DB of 2007(O&M) -14 - Advocate General, Punajb for the respondent. We have gone through the testimonies of PW-1 and PW-2. No motive can be ascribed to them to testify falsely in this case. PW-1 in candid words testified that on 14.04.2004 at about 7 P.M. both the appellants (accused present in the Court) came to her dera and asked, whereabouts, of her husband who came back at 9:30 P.M. She testified that both the appellants followed her husband to the upper storey of the house and she along with Gurwaryam Singh also went upstairs and one of them fired gun shot from his pistol which hit her husband, Jairoop, Manjit Singh Nihang and Gurwaryam and then both the appellants slipped away from the place.
PW-2 also testified likewise and identified the appellants as assailants of the incident. She identified the appellants at the time of her deposition and she testified that the appellants came to their dera at 7 P.M. and remained there till 9:30 P.M. When her father came back, the appellants followed him to upstairs and fired shots from pistol.
Both the PW-1 and PW-2 remained in the company of the appellants till 9:30 P.M. At that time, everything in the dera was peaceful. During this interval of two and a half hours, PW-1 and PW-2 had sufficient time to recognize the appellants as the accused in this case. Their faces were not muffled at that time. This occasion was not available to the injured. Their injuries occupied them and, therefore, PW-3 and PW-19 did not have sufficient occasion to recognize the appellants. Even PW-1 and PW-2 were more concerned with the incident and they wanted that real culprits must be punished and innocent persons may not be punished for this crime.
Investigation agency is not relying upon the confession of the appellants before them of the incident of 14.04.2004 which had taken place in the dera of Baba Jagtar Singh. Indeed, the photograph of appellants was published in the daily Jagbani in its issue dated 18.04.2004 Ex.P1. Crl. Appeal No. 120-DB of 2007(O&M) -15 - From that photograph, PW-1 and PW-2 identified the appellants as assailants who killed Baba Jagtar Singh and Manjit Singh Nihang at their dera. So, once the appellants were identified from the photograph, it is not a case where the appellants were seen by PW-1 and PW-2 for the first time in the Court. If the test identification parade of the appellants had been conducted for getting them identified from PW-1 and PW-2 and other injured witnesses, then that identification would have been insignificant, as their photograph had already been published in the newspaper daily Jagbani in its issue dated 18.04.2004 Ex.P1, as can be seen from the record. In that event, if the identification parade in this case had been conducted, that itself would have been a reason for acquitting them by giving them benefit of doubt.
Hon'ble Supreme Court in Ravi @ Ravichandran Vs. State 2007 (3) R.C.R. (Criminal) 97 acquitted the accused by giving benefit of doubt, as they were not named in the FIR and the test identification parade was held after 10 days of arrest and in the meantime, their photographs were published in the newspaper. It was held that test identification parade held after 10 days loses significance and accused was acquitted by giving benefit of doubt. Therefore, the contention of the learned counsel for the appellants that the case of the prosecution should be rejected for not getting arranged test identification parade becomes devoid of merit, in view of the judgment of Hon'ble Apex Court supra. In the case in hand, PW-1 and PW-2 gave identifying features of the assailants during investigation and from these features, they identified the appellants as accused from their photographs appearing in the newspaper.
Learned counsel for the appellants placed reliance upon Shaikh Maqsood Vs. State of Maharashtra 2009 (7) JT 554 passed by the Hon'ble Apex Court, wherein, no question was put to the accused under Section 313 Cr.P.C. which established that he was author of the Crl. Appeal No. 120-DB of 2007(O&M) -16 - crime and it was held that the conviction was not sustainable. This judgment is inconsequential to the appellants, as during their examination under Section 313 Cr.P.C. it was put to them that they were identified by PW-1 and PW-2 at the time of occurrence. Even it was put to them that they visited dera of Baba Jagtar Singh on 14.04.2004 at 7 P.M. and they killed Baba Jagtar Singh and Manjit Singh Nihang, as also, injured Jairoop and others, when Baba returned to dera.
In D. Gopalarishnan Vs. Sadanand Naik and others AIR 2004 SC 4965, Hon'ble Apex Court held that there are statutory guidelines in the matter of showing photographs to the witnesses during the stage of investigation. But nevertheless, the appellants are entitled to confirm whether investigation is going on in the right direction. But in the instant case, Investigation Officer procured the album containing the photographs with the names written underneath and showed this album to eye- witnesses and recorded their statements under Section 161 Cr.P.C.
This judgment is also inconsequential to the appellants, as photograph of the appellants was not shown to PW-1 and PW-2 by the police. That was seen by PW-1 and PW-2 themselves from a newspaper Ex.P1 dated 17.08.2004.
So, under these circumstances, the learned trial Court rightly placed reliance upon PW-1 and PW-2 as their testimonies during cross- examination could not be shattered. It is, no doubt, true that prosecution has to stand on its own legs for proving the guilt of the culprit, but in the case in hand during cross-examination nothing has emanated which could make the testimony of PW-1 and PW-2 doubtful, especially when they had no motive to testify falsely in this case. As already held, there was sufficient time for PW-1 and PW-2 to recognize the appellants who remained in their company for at least two and a half hours.
So far as testimony of PW-3 is concerned, that cannot shatter Crl. Appeal No. 120-DB of 2007(O&M) -17 - the evidence of PW-1 and PW-2. As already held, this witness was injured and he became unconscious, as testified by him. So, when he was unconscious, he was incapable of identifying his assailants, however, from his testimony the manner in which the incident had taken place stood established.
It is no doubt true that the weapons were not recovered from the appellants by the police, but that cannot be made a ground for according them benefit of doubt, as they might have destroyed those weapons after the occurrence and their recovery may be beyond reach of the police. Even otherwise, due to non-recovery of the weapons of offence, PW-1 and PW-2 cannot be allowed to suffer, especially when in candid words they testified in the Court that appellants were assailants who killed Baba Jagtar Singh and Manjit Singh Nihang and injured PW-3 and others. From the testimonies of PW-4 and PW-5, it stands established that Manjit Singh Nihang and Baba Jagtar Singh had died in this incident and the injuries suffered by them were narrated by these witnesses in their post mortem reports.
There were fire arm injuries on the corpses of the deceased and PW-1 and PW-2 also testified that appellants had fired with pistol. Even PW-3 as also PW-19 both injured also testified that shots from fire arm were given by the assailants. Learned trial Court rightly held that the acquittal of the appellants in other FIR cases vide judgments Ex.D1 to D4 is inconsequential to this case, as the case in hand and the other cases have their own merits. In those cases in which the appellants were acquitted, the prosecution might not have been able to prove their cases against the appellants, but in this case, the testimonies of PW-1 and PW-2 cannot be ignored and the learned trial Court rightly did so.
So, both the appellants intruded into the dera of Baba Jagtar Singh and committed murder of Baba Jagtar Singh and Manjit Singh Crl. Appeal No. 120-DB of 2007(O&M) -18 - Nihang by firing shot from a pistol and also injured Gurwaryam Singh PW-3 and Jairoop PW-19. The learned trial Court, thus, rightly convicted and sentenced the appellants vide impugned judgment and order of sentence which must be upheld and affirmed, as these do no suffer from any illegality or impropriety.
Resultantly, appeal fails and is, hereby, dismissed. Both the appellants be taken in custody to undergo the remaining portions of their sentences.
(S.P.BANGARH) (S.S.SARON)
JUDGE JUDGE
February 22, 2013
Divyanshi