Angrez Singh vs State of Punjab

S.S. Dewan, J.

For the murder of Surinder Kumar deceased, the aforementioned six appellants were brought to trial in the Court of Session at Faridkot. They stand convicted under Sections 147, 148 and 302 read with Section 149, Indian Penal Code and have been sentenced to various terms of imprisonment and fine with the direction that the substantive sentence so awarded to them shall run concurrently. They have challenged their convictions and sentences by filing Criminal Appeal No. 520DB of 1985.

The prosecution case is in a very narrow compass. It is alleged that on 16th December, 1983, at about 4.45 p.m., all the six accused namely Angrez Singh, Sukhdev Singh, Jagtar Singh and Nirmal Singh and Jagsir Singh came in a car to the premises of M/s. Goel Oil, Moga. They got 15 litres of petrol and handed over the currency note of Rs. 100/ to Binda Charan PW, who further handed over the said amount of Surinder Kumar deceased, who was then sitting in the cabin. Surinder Kumar returned Rs. 10/ to the said PW for delivery to the accused. The accused again gave Rs. 12/ to Binda Charan to supply them mobile oil Binda Charan brought a tin of mobil oil from the cabin and went to the accused to deliver it. In the meantime, Surinder Kumar deceased also came out from the cabin and then Sukhdev Singh accused proclaimed that `Bhaj La Lala Kithe Jana Hai''. Then Joginder Singh accused took out a rifle from the car and fired at Surinder Kumar who received bullet injury on the left side of his flank and fell down with his face downward. Because of profuse bleeding, Surinder Kumar succumbed to his injuries at the spot. Sham Sunder PW who was also present there, ran towards the wall and fell down as a result of which his right foot was injured. Then all the accused sped away in their car towards Moga side. Sham Sunder went to Moga in a truck and brought Mohan Lal, Madan Lal and Tirath Parkash to the spot. Thereafter, Binda Charan along with Mohan Lal went to the Police Station Moga and lodged the F.I.R. Ex.PA which was recorded by Sub Inspector Harbhaj Ram. The Sub Inspector reached the spot and prepared its visual plan Ex.PQ and also recovered one empty cartridge and a live cartridge from the spot. On 17th December, 1983, Gurmail Singh Sarpanch of village Jhandewala met the Sub Inspector and told him that he had seen Car No. PUU 56757 driven by Angrez Singh accused and it was parked in a Khola near the house of one Bakhtawar Singh. The car along with its documents was taken into possession by the police in the presence of Bakhtawar Singh and Gurmail Singh PW. Angrez Singh was arrested on 4th February, 1984 and the remaining five accused had absconded.

Dr. S.R. Mittal, Medical Officer, Civil Hospital, Moga, PW.1 conducted autopsy on the dead body of Surinder Kumar on 17th December, 1983 at 9 a.m. and he found the following injuries :

"1. Lacerated punctured wound (gun shot wound of entry) with inverted margins 1.5 x 1 cm. oval, in shape on left side of abdomen, 3 cms. from the midline and 4 cms. from the umbilicus. Blackening around the wound was present. On dissection, the underlying subcutanecus tissues were lacerated and multiple lacerations of large intestine perforating it through and through left kidney was lacerated, spleen was lacerated and punctured. The wound was further extending to the left side if diaphragm and lacerating the left lung, fracturing the 5th left rib anteriorly and communicating with injury No. 2. One piece of bullet found during the dissection was sent in a scaled vial. The piece was found in the skin. The peritneal and left pleural cavity was full of blood.

Lacerated punctured wound (wound of exit) with overted margins 6 x 4 cms. on left side of lateral aspect of chest, 7 cms. below the armpit and 16 cms. from the left nipple. On dissection, the wound was communicating with injury No. 1. The direction of the wound was from below upwards, backwards and downwards.

Three contusions about 2 x 1 cm. in size on centre of the forehead. On dissection, clotted blood was present.

Death was opined to be due to shock and haemorrhage as a result of injuries which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between the inquires and death was stated to be immediate and between death and postmortem between 12 to 18 hours. Dr. Mittal also examined Sham Lal PW. on 16th December, 1983 at 8.10 p.m. and found the following injury :

"Plain, swelling and crepitus on lower onethird of right leg, ankle joint and upper part of the foot. Underlying bones were fractured."

After necessary investigation, Angrez Singh accused was challaned and committed and after about 7/8 months of the occurrence, the remaining accused were also arrested, challaned and committed to the Court of Session for trial.

To connect the accused with the crime, the prosecution examined as many as 12 witnesses. Binda Charan PW.3 furnished the ocular account of the event. Ch. Sadhu Ram Tehsildar PW.2 held test identification parade for Angrez Singh accused in the jail premises at Faridkot on 1st February, 1984, but the latter refused to participate in the test identification parade. Kulwant Singh Draftsman PW.4 prepared the site plan Ex.PC of the place of the occurrence. Balbir Singh PW.5 and Gurmel Singh PW.6 who deposed regarding the parking of a car near the house of Bakhtwar Singh on the fateful night, had gone hostile and refused to support the prosecution case. Sub Inspector Harbhaj Ram PW.10 was the investing Officer. When examined under Section 313, Cr.P.C. the accused denied the prosecution allegations and pleaded false implication in the case but led no evidence in defence.

In a case where there are alleged to be two eyewitnesses of the occurrence, acceptability of the ocular account inevitably must be the governing factor. Herein what first meets the eye is the reluctance of the prosecution to lay all its cards on the table indicating clearly that it has much to hide. Significantly of the two eyewitnesses, the prosecution did not either choose or dare to examine Sham Sunder alias Sham Lal another employee of Surinder Kumar deceased who was present at the spot and not only witnessed the occurrence but he was subsequently sent to Moga by Binda Charan to inform the brother of the deceased about the occurrence. The prosecution had chosen to withhold Sham Sunder and put into the witness box a solitary interested eyewitness Binda Charan PW.3, an employee of the deceased, apparently to stall any effective crossexamination by the defence and to avoid any contradiction in the evidence of the eyewitnesses. At the very threshold, therefore, the keeping back of the testimony of Sham Sunder PW. raises a gravely adverse inference against the prosecution. It is significant to note here that apart from the word of mouth of Binda Charan PW.3, there is nothing to indicate from the record any urgency or any particular reason which could motivate or justify the appellants to commit the crime. Binda Charan PW has categorically stated that at no occasion Joginder Singh appellant had any dispute with the deceased Surinder Kumar. There appears to be no earthly reason as to why the deceased was gunned down by the appellant.

There are glaring infirmities in the evidence of Binda Charan PW.3. While lodging the First Information Report, the only description given by Binda Charan PW of the assailants was that three Sikh gentleman were thin, the was quite tall, while the other one was very fast and one person was of well built. In the trial Court, he stated that he knew Joginder Singh appellant only by face and not the other appellants. It emerges from the record that the test identification parade of Angrez Singh appellant was held and not of other appellants. The trial Court has found that the mere fact that no test identification parade of five other appellants was held, would not destroy the evidence of Binda Charan. We feel that the trial Court erred in law in taking this view. It is well settled that where a witness identifies an accused, who is not known to him in the Court for the first time, his evidence is absolutely valuables unless there has been a previous test identification parade to test his power of observations. The idea to hold test identification parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person to whom the witness has been only once. If no test identification is held, then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in the Court. In these circumstances, therefore, we feel that it was incumbent on the prosecution in this case to have arranged test identification parade and get the identification made before the witness was called upon to identify the appellants in the Court. On this ground alone, the testimony of Binda Charan PW becomes unworthy of credit and must be excluded from consideration. So far as Angrez Singh appellant is concerned, he refused to join the identification parade because the perusal of record does not show or even suggest that he had appeared before the Judicial Magistrate with his face muffled. Under these circumstances, the plea of refusal on the part of Angrez Singh appellant to participate in the test identification parade cannot be called unjustified and thus no adverse inference under Section 114 of the Evidence Act could be drawn against him that if he had participated in the test identification parade, he would have been identified by the witnesses. In these circumstances the identification of the appellants in the dock of the trial Court by Binda Charan PW about one year and four months after the occurrence loses much of its credibility. To further add to it a little, there is yet another factor which is that admittedly as there was no electric and lamp light at the place of occurrence, the possibility of human features of the appellants to be retained in memory for a long time was wellnigh impossible.

In the F.I.R. lodged by Binda Charan PW, it was stated that the appellants came to the petrol pump of the deceased in Ambassador car of light blue colour but when his witness was asked to identify the car parked outside the court room of the trial Court, the colour of that car was blackish shade. The occurrence took place on 16th December, 1983 at about 5 p.m. On that day the sun had set at 5.23 p.m. It is no where stated by Binda Charan that there was electric or lamp light on the alleged place of occurrence. He is obviously trying to clutch at a straw by suggesting that he could identify the assailants in such a situation. It must inevitably be held that the occurrence had taken place on a dark night where the assailants had remained unidentified. The defence was, therefore, on strong ground in urging that the appellants were either named primarily on suspicion or perhaps implicated for being on the wrong side of the police in a case where the actual assailants had gone unidentified.

In view of the above, we are firmly of the view that little trust can be placed intrinsically on the evidence of Binda Charan PW, the solitary eyewitnesses whose presendence at the spot seems to be wholly doubtful.

For the aforesaid reasons, we are of the view that the prosecution has failed to bring home the charge against the appellants. Their convictions and sentences cannot be sustained and are hereby set aside. The appeal is allowed.