Indian Kanoon - Search engine for Indian Law

in-law's village Santupura a day prior to the occurrence, while his wife Bhiro along with her children followed him in the morning of the day of occurrence. It is alleged that on the might intervening 30th and 31st July, 1973 at about 1 A.M. Jaswant Kaur and her husband Amir Singh were lying on their cots in the verandah and Shiv Kaur was also sleeping in front of the verandah while Ajaib Singh was lying on a cot near the buffalo in the court-yard. As the newly born child of Jaswant Kaur was not well both Jaswant Kaur and her mother Shiv Kaur were awake t0 nurse him. At that time electric bulb was burning in the court-yard because an electric connection had been recently taken from a neighbour in view of the illness of the child of Jaswant Kaur. Near about 1 A.M. Jaswant Kaur and Shiv Kaur heard the noise of foot-steps and they saw Dalbir Singh, Ajit Singh and Puran Singh armed with kirpans while Dalbir Kaur @ Bhiro armed with a datar standing by the side of the cot of Ajaib Singh. Dalbir Singh had an altercation with his father Ajaib Singh and expressed his dis-satisfaction over the partition of the lands and asked his father and brother to get ready to meet the consequences and to call anybody for help if they liked. Thereupon Dalbir Singh gave a kirpan blow on the left jaw of Ajaib Singh and Bhiro gave a datar blow on his right shoulder, while Ajit Singh and Puran Singh gave kirpan blows on his chest. After this gruesome operation was over, the accused proceeded to the cot of Amir Singh who was caught hold of by Dalbir Singh and Puran Singh and Ajit Singh is alleged to have given a kirpan blow on his right leg while Mst. Bhiro gave a datar blow on his left shoulder. Dalbir Singh and Puran Singh then dragged Amir Singh and put him over the body of Ajaib Singh and thereaf- ter all the appellants caused further injuries to Amir Singh and Ajaib Singh with their respective weapons on different parts of their bodies as a result of which they succumbed to the injuries. Jaswant Kaur and Shiv Kaur raised alarm but they were threatened to keep quiet as a result of which these two helpless ladies shut themselves up in one of the rooms. Sometime in the early morning the accused who had stayed on in their part of the house left the village and went away. Jaswant Kaur narrated the incident to Mukhtar Singh and Mohinder Singh and ultimately left with Mohinder Singh and lodged the First Information Report at police station Sadar Batala at 9 A.M. Thereafter the Inves- tigating Officer proceeded to the spot, prepared an inquest report sent bodies of the two deceased for post-mortem examination and conducted the usual .investigations. It is further alleged that in the course of the investigation all the. appellants made certain statements on the basis of which recoveries of the kirpans and the datar were made from the accused concerned. The police after usual investigation submitted chargesheets as a result of which the appellants were committed to the Court of Session and ultimately con- victed and sentenced as indicated above. The Sessions Judge made a reference to the High Court for confirmation of the sentence imposed on all the appellants and appeals were also filed by all the accused and the High Court after consider- ing the entire evidence agreed with the view taken by the Sessions Judge confirmed the sentences and dismissed the appeals.

Mr. Anthony however submitted that the prosecution has not examined the best evidence, namely, Mohinder Singh from whom the electric connection was borrowed. This was a very minor matter and the evidence led by the prosecution clearly proved the fact that there was electric installation and the bulb actually burning at the time of occurrence and non- examination of Mohinder Singh would not outweigh the evi- dence given by the eye witnesses corroborated as it is by the evidence of P. Ws. 5 & 6 and the documents Exts. P.N. and P.M. The prosecution has further led the evidence of recovery of the weapons from all the appellants at their instance which are Exts. P.Q., P.S., P.T., and P.U. The weapons recovered were bloodstained and they were recovered at the instance of the appellants. Both the Courts below have accepted this evidence and this was sought to be repelled by learned counsel for the appellants on the ground that no independent witness as such as has been examined to prove the recoveries. It would appear that so far as Ext. P.Q. 3--1104SCI/76 the recovery of kirpan from Pooran Singh is concerned it has been proved by Darshan Singh brother of Jaswant Kaur. We find that Jaswant Kaur was not an interested witness be- cause she was the wife of one of the deceased. Her brother Darshan Singh's testimony does not suffer from any infirmity and he must be considered to be an independent witness because he bears no animus whatsoever against any of the appellants. Darshan Singh was examined as a witness as P.W. 11 and was examined at great length but no suggestion was given to him that he had any enmity against the accused. The only thing that was suggested to him was that he was deposing falsely because of his rela- tionship---a ground which cannot be entertained. As regards the recoveries of the weapons at the instance of Dalbir Kaur, Dalbir Singh and Ajit Singh, it is true that they have been attested by the police officers and some independent persons as search witnesses. The police offi- cers have been examined to prove the search but the other witnesses have not been examined. That by itself does not introduce any serious infirmity in the evidence furnished by the recoveries which at best is only a corroborative piece of evidence. We shall, however, take. up the case of Ext. P.U. the recovery of kirpan from Ajit Singh a little later. The learned counsel for the appellants relied on a deci- sion of this Court in Nachhettar Singh & others v. State of Punjab(1) where Bhagwati, J., speaking for the Court observed as follows:

stances the possibility of this witness making an honest mistake in identifying Ajit Singh cannot be safely excluded or ruled out. It may mentioned here that the accused Ajit Singh at the time of surrendering gave an application which is Ext. D.B. at p. 42 of Paper Book Part II where he cate- gorically prayed that be should be put at the test identi- fication parade for identification by all the eye witnesses who did not know him from before. In iris statement under s. 342 of the Code of Criminal Procedure also Ajit Singh took the stand that he had never gone to the village Marrar Kalan before or after the occurrence and that is why be surrendered not at Batala but at Gurdaspur so that he might not be got identified by the police to the witnesses. The Magistrate passed an order that the accused Ajit Singh should be identified at the test identification parade but unfortunately while Shiv Kaur was asked to identify the appellant Ajit Singh at the test identification parade, Jaswant Kaur was not asked to identify him there. It is true that Jaswant Kaur has stated in her evidence that she knew the appellant Ajit Singh as being the cousin of Mst. Bhiro the wife of her husband's eider brother. He used to come to the house off and on. It is, therefore, clear that Jaswant Kaur herself might have caught only a glimpse of the appellant Ajit Singh when he came to meet Mst. Bhiro who admittedly lived in a separate portion of the house and, therefore, the witness Jaswant Kaur could-not have known the appellant Ajit Singh very well. At any rate, either Ajit Singh was known to the witness Jaswant Kaur or he was not known. In any case, in view of the stand taken by Ajit Singh the prosecution should, in all fairness, have put Jaswant Kaur also at the test identification parade to identify Ajit Singh. If Ajit Singh was not known to Jaswant Kaur as he said, then she would not have been able to iden- tify him. If Ajit Singh was known to her, then also the prosecution was not to lose anything. In view of these circumstances, therefore, I feel it unsafe to rely on the single testimony of Jaswant Kaur, so far as the appellant Ajit Singh is concerned. This, however, does not mean that I am casting any reflection on the credibility or truth- fulness of any of the eye-witnesses. The appellant Ajit Singh may have been one of the assailants but in view of the circumstances mentioned above, a reasonable doubt arises, regarding his participation, which must be given to him. If the evidence of Jaswant Kaur is excluded from consideration, so far as Ajit Singh is concerned, then the evidence of the recovery of kirpan from Ajit Singh by itself was not suffi- cient to connect him with the crime, particularly when there was no statement by Ajit Singh wherein he had confessed assaulting the deceased and then pointed out to the weapon as being the weapon with which he had assaulted the de- ceased. In these circumstances I am satisfied that the prosecution has not been able to prove its case against Ajit Singh beyond reasonable doubt and the High Court was wrong in convicting him.