Jagtar Singh and anr. vs State of Punjab

S.S Dewan, J.—Jagtar Singh and Harpal Singh appellants stand convicted under Section 302 read with Section 34, Indian Penal Code for committing the murder of Sukhdev Singh deceased and have been sentenced to life imprisonment and a fine of Rs. 2,000/ or in default to undergo further rigorous imprisonment for one year each. Each of them is further convicted and sentenced to rigorous imprisonment for one year under Sec 27 of the Arms Act. Surjit Singh and Gurdev Singh were also brought to trial on the charge of conspiracy to commit the murder abovesaid but they stand acquitted by the trial Court.

About two years prior to the present occurrence, Sukhdev Singh deceased from village Maur Khurd and his covillagers named Nathu Singh and Modan Singh were fired at by Jagrup Singh father of Jagtar Singh and Harpal Singh accused, Jagtar Singh, Surjit Singh and Two others and in that case, the F.1 R was lodged by Sukhdev Singh deceased. A month or so prior to the present occurrence, the aforesaid accused mere convicted and sentenced in that case Under Section 307, Indian Penal Code by the Additional Sessions Judge, Bhatinda. On 11th December, 1981 i.e. about 13 days before the present occurrence Karnail Singh father of Sukhdev Singh deceased and Gurtej Singh PW were attacked was kirpans in the Court complex at Bhatinda about which F.I.R., certified copy of which is EX. PH, was got registered by Gurtej Singh on the same day at the Police Statement Cantt. Bhatinda. That case in which Jagrup Singh father of Jagtar Singh and Harpal Singh accused in this case and three others were named as the assailants, was pending investigation during the days of this occurrence. The said Karnail Singh, after he was injured in the said attack on 11th December, 1981, was got admitted in the Civil Hospital, Bhatinda and he was under treatment in that hospital on the day the present occurrence took place. These incidents are stated to be the impelling motive for the accused to commit the crime.

It is alleged that on 23rd December, 1981, Sukhdev Singh of village Sareh accompanied by Sadhu Singh covillager came to Bhatinda to get cement through a Sectional Officer. Unable to contact the said Sectional Office, both of them come to the Metro Hotel, Bhatinda, where they found Jagtar Singh, Harpal Singh, Surjit Singh, Gurdev Singh and a well built person Major Singh accused (now absconded) sitting in a cabin of the hotel. Sukhdev Singh overheard Surjit Singh and Gurdev Singh accused speaking to each other that either Karnail Singh or one of his Sons should be killed as previously they had escaped being killed and only a case under Section 307, Indian Pennal Code was registered. Further, he (Sukhdev Singh) overheard Surjit Singh accused saying that they should kill Sukhdev Singh, a son of Karnail Singh who was an Adv. It is pertinent to mention here that the trial Court disbelieved the evidence of Sukhdev Singh PW aforesaid and acquitted the said accused of the charge of conspiracy.

The prosecution case is that on 24th December 1987. at about 8/9 A. M. Harkaran Singh PW reached Civil Hospital, Bhatinda to enquire about the condition of his fatherinlaw Karnail Singh lying admitted there after being injured in the attack on him on 11th December, 1981. His brothers in law (wife''s brothers) Sukhdev Singh deceased and Gurtej Singh PW were already present in the said hospital. It is said that after some time Harkaran Singh went to the canteen in the Civil Hospital premises for a cup of tea and shortly afterwards, Grutej Singh PW and Sukhdev Singh deceased also came out of the hospital building the former for tea and the latter to purchase a medicine for their father Karnail Singh from the medical store being run within the premises of the hospital itself, at a distance of about 15/20 karams from the said canteen. Gurtej Singh went to the said canteen and ordered for tea while Sukhdev Singh deceased walked to the said medical Store. After purchasing medicine from the medical store, Sukhdev Singh deceased started towards the hospital building and at that time Gurtej Singh and Harkaran Singh PWs saw Jagtar Singh accused armed with a 12 DBBL gun, Harpal Singh accused armed with a 12 bore pistol and Major Singh alias Jalaur Singh (absconder) with a 12 bore SBBL gun, making their appearance to the rear of Sukhdev Singh deceased after emerging from the lane in between the medical store and the canteen. Immediately on arrival, Major Singh (absconder) fired from his gun hitting Sukhdev Singh deceased on his back. The deceased on being thus bit by the shot on his back, fell down. Then Jagtar Singh accused went near Sukhdev Singh deceased and fired at him from his gun hitting him on his left rear. Lastly, Harpal Singh accused fired a shot from his pistol which hit the right upper arm of the deceased and thereafter all the three accused bolted away from the spot with their respective weapons. Gurtej Singh and Harkaran Singh PWs went near Sukhdev Singh and found him lying dead. Leaving Harkaran, Singh near the dead body, Gurtej Singh left for the Police Station Kotwali Bhatinda to lodge the report but on the way, he met Sub Inspector Bhagat Ram near the Red Cross Canteen, close to the District Court''s gate. Bhagat Ram recorded the statementEx. PA of Gurtej Singh, on the basis of which formal FIR Ex. PL/14 was registered in the Police Station Kotwali, Bhatinda. Bhagat Ram went to the spot, held inquest and sent the dead body of Sukhdev Singh to mortuary for autopsy. The SubInspector lifted bloodstained earth from the spot and also recovered 5 pieces of wads and a bottle of medicine from there. A wallet Ex. P. 1 containing a photograph and a currency note of the denomination of Rs. 10/ were taken out from the pocket of the trousers worn by the deceased and the same were taken into possession vide memo Ex. PF. The accused were searched but they were not traceable. They were, however, subsequently arrested. The Sub Inspector interrogated Major Singh accused on 7th January, 1982 in the presence of Balam Singh and Balbir Singh and he suffered disclosure statement leading to the recovery of 12 SBBL gun Ex. P 5 and four cartridges of the same bore (Exs. P.6 to P 9) from the specified place of concealment and all these articles were then sent to the Forensic Science Laboratory, Chandigarh for examination.

Dr. Balwinder Singh Malhi who it stated to have gone abroad conducted autopsy on the dead body of Sukhdev Singh on 24th December, 1981 30 P.M. and, found the following injuries.

One 11/2" oval lacerated wound just below left ear, Pinna of the ear was missing. Margins were inverted. Slackening and tattooing was present. On probing, it was directed martially and downward ON dissection left carotid vessels were torn. Underlying muscles were torn. Cervical cord was torn. Right lung was punctured. 2 pellets were discovered form right lung. One wad was found lying in the wound.

1 cm round wound, margins were inverted, 1 1/2" from medical line, over left back, 5" below the base of the neck. Blackening and tattooing was present.

1 cm round wound," margins were inverted, blackening was present just below injury No 2.

1 cm round wound, margins inverted, blackening was present 1.1/2, blow injury NO.

1 cm, round wound, margins were inverted, blackening was present, 1/2" lateral to injury No. 4.

1 cm round wound, margins, were inverted, balckeinng was present, 1/2" lateral to injury No. 5.

1 cm. round wound, margins were inverted, blackening was present, over left back, 1/2" above injury No. 5.

On dissection of injuries No. 2, 3, 4, 5, 6, 7, all were directing forward. One pellet was found from the left lung. Left lung had multiple punctures.

Multiple abrasions found over right arm and lateral and anterior of right arm. No blackening and tattooing was present. One small pellet was found sticking to one abrasion.

Death was opined to be due to shock and hemorrhage as a result of injury No. 1 which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was stated to be immediate and between death and postmortem within 24 hours. Dr. Malhi having gone abroad the postmortem report Ex. PK/12 was proved by Dr. Hem Raj Goyal PW 10. After necessary investigation, the accused were challaned and committed.

The ocular account consist of Gurtej Singh PW 1 and Harkaran Singh PW 2. The SubInspector Sewak Ram PW 3 proved the FIR Ex. PH regarding the earlier incident happened on 11th December, 1981, in which Karnial Singh lather of Gurtej Singh PW was injured by the accused party in the Court premises at Bhatinda. Sukhedv Singh PW 8 deposed regarding the conspiracy part of the prosecution case. The SubInspector Bhagat Ram PW 11 is the Investigating Officer. The remaining evidence is of formal nature. When examined under Section 313, Criminal Procedure code, the accused denied the prosecution allegations and pleaded false implication in the case. They however, examined 7 witnesses in defence.

The trial Court on the basis of material placed before it convicted and sentenced the appellants as indicated above and hence the appeal at their instance.

On behalf of the appellants it is vehemently argued that the presence of the alleged two eyewitnesses was doubtful that the First Information Report in this case was lodged after considerable delay and that both the eyewitness bore serious hostility towards the appellants and were closely related to Sukhedv Singh deceased. It was even suggested that the incident had taken place when nobody was around and that the appellants had been implicated on suspicion.

At the very outset, the presence of both Gurtej Singh PW 1 and Harkaran Singh PW 2 at the alleged time and place of occurrence has been rightly made the subject of pointed criticism. The reason for the presence of these witnesses near the canteen situated in the premises of the Civil Hospital, Bhatinda at a distance of about 15/20 karams from the place of occurrence appears to have a hollow air about it apart from the itrinisic place of fatal defects in their testimony. Gurtej Singh PW 1 who is the brother of Sukhedv Singh deceased, has stated at the trial that they both used to attend to their father Karnail Singh, who was then admitted as an indoor patient in the Civil Hospital, Bhatinda and that on the fateful day at about 9 A.M. he (witness) went to the canteen to take tea while his brother Sukhdev Singh decease went to the medical store to purchase a medicine for Karnail Singh and that almost at the same time. Harkaran Singh PW 2 who is the brotherinlaw of the witness, came to the said canteen for taking tea. It emerges from the evidence of the eyewitness that after purchasing the medicine from the medicalstore, when Sukhdev Singh deceased was proceeding toward the hospital building, he was attached by the appellant and their associate Major Singh absconder. The presence of Harkaran Singh PW at the spot is sought to be explained on the ground that he came to the hospital to enquire about the health of his fatherinlaw Karnail Singh. Regarding the time of arrival of Harkaran Singh in the hospital the evidence of Harekaran Singh and Gurtej Singh is at avaricious. Harkaran Singh PW has stated that he came to the hospital at about 8 A.M. whereas according to Gurtej Singh, he arrived in the hospital at about 9 A.M. Now, Gurtej Singh would have us believe that by a total coincidence they met at the canteen and witnessed the occurrence. It is borne out form the evidence of these witnesses that there were residential houses near the place of occurrence. These eyewitnesses are categorical that despite the firing of three shots and the gruesome nature of the crime, not one of the inmates of those houses saw the occurrence. In fact, none out of them even came to the spot long thereafter. This by itself seems to be wholly improbable if not farcical even giving much leeway for the known fact that the witnesses are usually reluctant to come forward in murder cases. It nevertheless seems too strange that nobody except Gurtej Singh and Harkaran Singh who were then pursuance present at the canteen, witnessed the occurrence. In any case, it seems to be plain a day that the natural witnesses whose houses in the closest proximity to the spot of occurrence, have not come forward even remotely to depose in regard thereto. In fact there appears to be a designed attempt on the part of the two eye witnesses to altogether ignore persons who were normally and naturally be at or near the place of occurrence. It, has come in the evidence of the Sub Inspector Bhagat Ram PW 11 that when he went to the place of occurrence, he saw Gurtej Singh and Harkaran Singh having guns with them. It seems rather unlikely and unacceptable that if they were present at a distance of about 15 karams from place of occurrence, they would not have attempted to intervene and protect deceased from being butchered before their eyes in the manner alleged. Neither of these eye witnesses made any attempt to inform even Karnail Singh about this incident. It thus follows that the conduct of the alleged eyewitnesses at the time and scene of occurrence and thereafter does not accord with the ordinary course of human nature and, is censurable. The aforesaid unsavorily features of the case and the gross improbabilities of the prosecution version are perhaps by themselves sufficient to throw away the prosecution, story.

Both the PWs Gurtej Singh and Harkaran Singh have no doubt attributed specific parts to the appellants and their associate Major Singh but when we turn to their cross examination it is remarkable that on one material points they made deliberate improvements. Gurtej Singh PW 1 claims to have stated before the police that Harkaran Singh PW carte to the hospital at about 9 A.M. to enquire about the health of his fatherinlaw that Sukhdev Singh deceased was proceeding from the medical store towards the hospital building when he was attacked that on be morning of the day of occurrence Gurdev Singh and Surjit Singh accused thereatened him (witness) that he would be dealt with through some persons and that he had mentioned the residence of Jagtar Singh and Harpal; Singh accused before the police. The witness was, confronted with his statement Ex. A where such assertions were found conspicuous by their absence. Harkaran Singh PW. 2 claims to have stated before the police that he stayed with his father in law Karnail Singh for about 15 minutes after reaching the Civil Hospital at Bhatinda at about 8 A. M. and then he went out to take tea. He was confronted with his statements Ex. PJ as well as Ex. PB/9 10, wherein the time of his arrival referred to above was not mentioned. The witnesses denied to have stated before the police that he was taking tea at the time is wife''s brother Sukhdev Singh deceased came to the medical store when to purchase medicine. He was confronted with his statement Ex. PJ wherein this fact was found mentioned. It is thus, have manifest that then witnesses made deliberate improvements and the same cannot be dismissed as amounting merely to omission. If these improvements are considered, it would appear that the witnesses though they are unsophisticated are clever enough to make improvements on points which they thought material and that is a very serious infirmity particularly in a murder case.

Gurtej Singh PW 1. patently is a man with a shady and questionable past. He has admitted that he along with his brother Sukhdev Singh deceased and their father Karnail Sing were prosecuted and convicted for the murder of Malkiat Singh and Bikkar Singh son of Gurdev Singh. Surjit Singh and Gurdev Singh accused in this case were the prosecution witnesses in that case. The learned Sessions a Judge while discussing the motive part of the prosecution case has observed in his judgment that both the parties were at daggers drawn with each other since at least the year 1979 and there existed bitter, report and long standing enmity between them. This circumstance could afford motive to the appellants to commit the crime but at the same time it would impel the witnesses to implicate the appellants may be on suspicion that they were responsible for causing the death of Sukhdev Singh.

In view of the above, we are firmly of the opinion that little trust can be placed intrinsically on the evidence of Gurtej Singh and Harkaran Singh, the two eyewitnesses whose presence at the spot seems to be doubtful.

The time and manner of the recording of the First Information Report in the present case are again matters which are not above suspicion. The occurrence took place at about 9.30 A.M. on 24th December, 1981 and immediately thereafter leaving Harkaran Singh near the dead body, Gurtej Singh set out for the Police Station to lodge the report and on the way he met the Sub Inspector Bhagat Ram near the gate of the District Courts at about 10 A.M. and he made a statement, before him, on the basis of which formal F.I.R. Ex. PL/14 was registered at Police Station Kotwali, Bhatinda at 11.05 A.M. The Special Report reached the Ilaqa Magistrate at about 1.50 P.M. The Special Report could have been delivered to the Ilaqa Magistrate within an hour or so of the recording of the First Information Report. An inference against the prosecution would have to be drawn from the fact that no satisfactory explanation for this delay is available. In these circumstances, it cannot be said with any amount of certainty that the First Information Report was in fact registered at 11.05 A.M. It is pertinent to mention here that Harkaran Singh PW 2 has categorically stated that Sub Inspector Bhagat Ram made enquiries from him about this incident when he came to the spot with Gurtej Singh. The case of the appellants was that the present case was framed at the spot after inquires by the police. This circumstance also caste doubts on the truth of the story given in the First Information. Report as it cannot be held that it was not the result of concoction and deliberation.

The other suspicious circumstance in the case is the patent conflict betwixt the medical evidence and the oral account. Gurtej Singh PW. 1 has categorically. stated in the trial Court that the fire shot hit Sukhdev Singh deceased on the left side of his head and passed through the other side of his head but Dr. M.S. Malhi who conducted autopsy found no such through and through wound on the dead body. Both the eyewitnesses are unanimous in their ascertain that all the injuries sustained by the deceased were the result of fire Arms issued by the appellants and their associate Major Singh. So far as injuries No. 1 to 7 are concerned, Dr M. S. Malhi had mentioned in the postmortem report that the same were antemortem and blackening and tattooing was present but regarding injury No. 8 it was nowhere described in the postmortem report as antemortem nor any blackening and tattooing was found present around this injury. Dr. Hem Raj Goel who proved the postmortem report Ex. PK/112 has stated in the trial Court that injury No. 8 could be the result, of a fall on the loose concrete lying at the spot. The presence of loose concrete lying scattered at the spot, however, stands confirmed by the Sub Inspector Bhagat Ram PW. 11. As such, the medical evidence affords no assistance to the prosecution case that all the injuries suffered by the deceased were the result of fire arms deceased used by the appellants. Yet another factor which calls for pointed notice is that the post mortem report indicates the presence of small chyme and small faecal, matter in the stomach. Considering the state of stomach contents, it appears that the occurrence took place some time in the early hours of the morning and not at time as alleged by the prosecution The medical evidence in the case thus lends, some credence to the defence suggestion that it was a blind murder.

The aforesaid circumstantial factors have almost a near fatal effect on the prosecution case. It belies the eye witness account totally. It raises an obvious doubt that in fact the two eyewitnesses were not there at all and have apparently concocted the story of the crime later from the number and nature of the injuries found on the body of the victim.

The above discussion would show that the First Information Report was anti timed and false witnesses to the occurrence had been introduced to the case and there was an attempt to implicate innocent persons in the case. The investigation conducted by the SubInspector Bhagat Ram was also doubted by the trial Court. Once the investigation is found to be tainted, the whole of the prosecution case becomes open to serious doubts and challenges. All that can be said for the prosecution is that it may be that the appellants had committed the crime but as observed by Gajendragadkar. J. as his Lordship then was in Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637, there is a long way to, travel between may be true and must be true and this whole distance has to be travelled by the prosecution. In the view we have taken upon the evidence, we are of the opinion that the only safeguard for the Court would be to reject the prosecution case as not proved. Giving the, appellants the benefit of doubt, we allow this appeal, set aside their convictions and sentences and acquit them. The result is unfortunate but it cannot be helped. it is at pity that a brutal murder is going unpunished.