Kikar Singh vs The State of Punjab

Kikkar Singh son of Jarnail Singh son of Sohan Singh, a young boy of 25 years, at the time of trial, resident of village Katianwall, has filed the present criminal appeal and it has been directed against the judgment and order dated 13.10.1995 passed by the Court of Additional Sessions Judge, Faridkot, who convicted the appellant u/s 302 of the Indian Penal Code and sentenced him to life imprisonment and to pay a fine of Rs. 2, 000/-. In default of payment of fine, the appellant was directed to undergo R.I. for three months for allegedly committing the murder of Gurcharan Singh alias Channa who was also a young boy of 22 years at the time of the occurrence which took place on 30.12.1990 i the revenue limits of village Dabwali Dhab.

Appellant Kikkar Singh was chargesheeted u/s 302/34 IPC on the allegations that on 30.12.1990 (in the chargesheet wrong date has been mentioned as 25.12.1990) in the area of village Dabwali Dhab, in furtherance of the common intention with his co-companion Parkash Singh alias Pasha ( proclaimed offender) intentionally caused murder of Gurcharan Singh alias Channa son of Makhan Singh.

The FIR in this case was lodged by Makhan Singh, who is none-else, but the father of the deceased, before SHO Raghbir Singh, Police-Station, Sadar Malout and the complainant made a statement to the effect that he is a resident of village Dabwali Dhab and has put up his Dhani in the fields in which he is residing along with his family members. Last night of 30.12.1990, he along with his brother Lakha Singh son of Teja Singh and his son Gurcharan Singh alias Channa, was sleeping in a separate room as usual. At about 8.30 P.M. two persons came at the Dhani and those persons had wrapped themselves with Lohies. One of them was clean shaven. He was of a medium structure and moderately built and was having small size gun in his hand. The other person was tall having a beard and long hairs. He was moderately built and he was armed with a big size gun. At that time, the kerosene oil lamp was burning in the Dhani. Those two persons called the name of the complainant and enquired from him as to where his son Gurcharan Singh was. Upon this the complainant replied that he along with his family is sleeping in the other room. Thereafter, the complainant got his son woke up, as a result of which Gurcharan Singh came out of the room. One of the persons who was a Sikh gentleman them said that Gurcharan Singh had violated the sanctity of the Amrit. Thereafter, the other man (clean shaven) fired shots hitting on the right side of the ear, neck, jaw and back side of the shoulder of Gurcharan Singh. As a result of those fire arm shots, the deceased fallen down on the ground and thereafter, both those assailants went away from the Dhani by raising threats that in case the complainant party informed the police, the entire family would be liquidated. After the departure of the assailants from the spot, the complainant verified and found that his son Gurcharan Singh alias Chhana has since expired. It is the case of the complainant that out of the fear during the night, they did not go to the police-station in order to lodge the report. In the morning of 31.12.1990. he after leaving his other/son Hakam Singh by the side of the dead body in order to guard it, he along with his brother Lakha Singh had come to the police-station in order to lodge the first information report. Giving the motive for the murder, it has been alleged by the complainant that unidentified persons had murdered his son Gurcharan Singh as the latter violated the sanctity of the Amrti. FIR was recorded over and explained to the complainant Shri Makhan Singh who thumb-marked the same in token of its correctness and was attested by S.I. Raghbir Singh. The Thanedar made endorsement underneath the said statement and thereafter, he along with the police-party and the complainant went to the place of occurrence. Investigation was taken up by Inspector Raghbir Singh who prepared the rough sit plain of the place of occurrence. He also prepared the inquest report and the dead body was handed over to the constable for post-mortem examination. During the course of investigation, it was found that Hakam Singh brother of the deceased had recognised and identified the assailant as Kikkar Singh. Resultantly, he was arrested on 28.1.1991. On interrogation of Kikkar Singh, it was revealed that companion of Kikkar Singh was one Parkash Singh alias Pasha but he could not be arrested and was declared proclaimed offender.

It may be mentioned here that when the spot was inspected by the Investigation Officer, he took into possession the blood stained earth vide recovery memo Ex. PG and he further found six empty cartridges of A.K.47 assault rifle. He made a sealed parcel o the empty cartridges by using his own seal and those were taken into possession vide memo Ex.PH. After the post-mortem examination, the clothes of the deceased were also taken into possession.

The investigation Officer sent the dead body of Gurcharan Singh alias Channa to the hospital for post-mortem examination vide separate request Ex. PC and Dr. Lakhbir Singh PW-1 conducted the post-mortem examination on the dead body of the deceased and found the following injuries on his person:

Penetrating lacerated wound was present with inverted margins 1/2 cm in diameter blackening of skin around the wound was present on face. It was 4 cm left to the outer canthes of left eye.

On dissection underlying bone and major blood vessels were lacerated, clotted blood was present. Brain matter was lacerated. ON its exit the occipital bond was fractured forming a wound 6 cm x 5 cm with everted margins on right side of scalp just behind the right year.

Penetrating lacerated wound 1/2 cm in diameter was present just below the lobule of left ear with inverted margins with blackening of skin around the wound. Clotted blood was present.

On dissection underlying tissues and major blood vessel were lacerated and had made a exit forming a wound 5x4 cm on the right side of the face with everted margins just below the right ear fracturing the right mandible.

Lacerated penetrating wound 1/2 cm in diameter with inverted margin and blocking of skin around it, (SIC) cm above the left elbow on the front of the left arm. On dissection underlying muscles and blood vessels were lacerated. Clooted blood was present. Resulting wound 3x4 cm on the back of left arm, 6 cm above left elbow joint with everted margin.

Lacerated wound 1/2 cm in diameter on front of right side of chest, 17 cm below right nipple. Blackening around the wound was present. Underlying muscles and blood vessel and liver was lacerated. Clotted blood was present. It had made a wound of exit 3 x 2 cm on back of right chest, 4 cm right to the midline with everted margins. All other organs were healthy".

The stomach contained 200mls of semi-digested food, death in the opinion of the doctor was due to shock and haemorrhage resulting from the above injuries caused by fire arms. It has also been opined by the doctor that all the injuries wee ante mortem in nature and were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between the injuries and death was immediate and between death and post mortem it was within 24 hours. Ex. PB is the correct carbon copy of the post-mortem report and bears the signatures of this doctor, Ex. PD was inquest report running into 18 pages which was sent along with the dead body for the purpose of post-mortem examination. It may also be mentioned here that from the arrest of the appellant, no weapon was recovered by the Investigating Officer, finally, on the completion of the investigation of the case, accuses was challenged in the court of Area Magistrate u/s 302/34 of the Indian Penal Code by showing Parkash Singh as a proclaimed offender, learned Magistrate Muktsar supplied the copies of the documents to the accused as relied upon by the prosecution under the law and vide commitment order dated 25.9.1991 committed the accused to the Court of Session to face the trial u/s 302/34 of the Indian Penal Code.

On 11.10.1991, the learned trial Court framed a charge u/s 302/34 of the Indian Penal Code against Shri Kikkar Singh appellant. It was read over and explained to him and the appellant pleaded not guilty to the charge and claimed a trial.

In order to prove the charge, the prosecution examined Dr. Lakhbir Singh PW-1 who conducted the post-mortem examination on the dead body of the deceased. The observations of the doctor have already been reproduced by us in the earlier portion of this judgment.

PW-2 is Shri Makhan Singh complainant, and PW-3 is Hakam Singh son of Makhan Singh and PW-4 is Lakha Singh the brother of the complainant. PW-4 is Shri Surrender'' Singh D.S.P. who simply deposed that on the completion of the investigation of the case, he submitted the final report u/s 173 Cr.P.C. and PW-6 is the Investigating Officer. This witness also deposed that Hakam Singh had not named the accused in the First Information Report. The Investigation Officer also did not make a mention of the name of the accused in the rough site plan Ex. PJ as he was not named by the witnesses Further, the accused was not named in the statement of Lakha Singh and Makhan Singh u/s 175 Cr.P.C. A categorical suggestion was put to this witness that supplementary statement of Hakam Singh was recorded on 6.1.1991 just to work out the crime. PW-7 is Head Constable Bhajan Singh who simply took the dead body of the deceased for the purpose of post-mortem examination. Finally the prosecution tendered in evidence the affidavit Ex. Pa and Ex. PM of the formal witnesses and closed the case.

The statement of the accused was recorded u/s 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated that he has been falsely implicated at the instance of Bagicha Singh Sar panch of village Katian Wali who is the relative of PW Makhan Singh and Hakam Singh because he had some money dispute with Bagicha Singh Sarpanch.

When called upon to enter into his defence, the accused did not lead any evidence.

Learned Additional Sessions Judge. Faridkot, virtually in one para judgment, came to the conclusion that appellant was responsible for the murder of Gurcharan Singh and he sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.

We have heard Shri T.P.S. Mann, learned counsel appearing on behalf of the appellants and Shri G.S. Gill, Sr. DAG, Punjab, appearing on behalf of the respondent and with their assistance have gone through the record of the case.

Before we deal with the submissions raised by the counsel for the parties, we want to reproduce the reasons given by the learned trial Court in para No.16 of the judgment, as in our opinion the cryptic judgment written by the learned Additional sessions Judge and confining his discussion in one para, was not only unjust, improper but it shows that the proper law on the point of identification has not been appreciated by the learned trial Court. Para No. 16 of the judgment of the trial Court is reproduced as under:-

"16. The learned defence counsel has argued that in F.I.R. there is no mention of the name of the accused and it is at a later stage that the accused has been falsely implicated in the present case at the instance of one Bagicha Singh Sarpanch of village Katianwali. This argument is devoid any force. The accused has been duly identified by the eye witnesses and it is in evidence that at that time there was light of the lamp min the house when the accused entered the house of the complainant and shot Gurcharan Singh dead by firing at him. Those days when the present occurrence took place, were the days of terrorism and fear was writ at large in the hearts and minds of the people in general. No body wanted to open the mouth against the terrorists who indulged in indiscriminate firing and shooting whosoever came before them. So, it is not surprise that the FIR was lodged by the complainant as blind FIR without naming any accused. Accused Kikar Singh was later on arrested and he has been fully identified by the sufferers who appeared in the witness box as witness. No enmity against the complainant or any PWs has been attributed by the accused. Therefore, I am not inclined to disbelieve the statements of the eye witnesses against the accused which are fully corroborated by the medical evidence and circumstantial evidence, as such the arguments of the learned defence counsel are rejected".

It is blind murder. The occurrence has taken place in the house of Makhan Singh, we are not doubting the presence of Makhan Singh, his son or brother but we are doubting the veracity of these witnesses whether they were in a position to identify the assailants or not.

Let us can through the case of the prosecution and the evidence led by it from the very beginning, the case set up by the complainant before the police was that on the night of occurrence, he along with his brother Lakha Singh and his son of Gurcharan Singh was sleeping in a separate room as usual and at about 8.30 P.M. two persons came at the Dhani wrapped in Lohis. Out of them one was a clean shaven and the other was having a beard and long hairs. It is the case of the complainant that in his presence and in the presence of Lakha Singh Shri Gurcharan Singh was murdered and after the occurrence he left behind his other son Hakam Singh bear the dead body and he along with lakhs Singh came to the police-station in order to lodge the report. Even the trio would agree that this murder was committed during the days when terrorism was at peak in the State of Punjab and this is even admitted by the learned trial Court in para No. 16 of the Judgment. In the FIR which is also exhibited as PA, the name of the Kikar Singh or his companions Parkash Singh, have not been mentioned. Rather the case set up by the complaint is that the assailants when came in the Dhani had wrapped themselves with Lohies suggesting that the assailants wanted to conceal their identity lest they may not be identified by the inmates of the house. It is also the admitted case of the prosecution that Shri Kikkar Singh appellant when arrested by the police has not been got identified by the complainant Shri Makhan Singh or his brother Lakha Singh. The supplementary statement which has been recorded is dated 6.1.1991. Makhan Singh appeared as PW-2 for the first time in the trial Court. He started saying that Kikar Singh appellant fired a shot upon his son which hit on the neck of Shri Gurcharan Singh and he fired more shots upon Shri Gurcharan Singh hitting on his jaw, shoulders and others parts of the body and thereafter, Kikar Singh accused and his companion went away by giving threats that in case the matter was reported to the police the entire family would be finished. In the cross-examination, it has been admitted by Shri Makhan Singh that he knew Kikar Singh before this occurrence and he did not name the accused to anybody. However, he told the name of the accused to the police in the FIR the name of the accused is not mentioned. The case set up by the witness at the trial is that he knew the accused before this occurrence. It is also the case set up by the prosecution that ear then lamp was burning in the house. Under these circumstances, what was the difficultly on the part of the witness Shri Makhan Singh not to disclose the name of the appellant or his companion before the police on 31.12.1990 when the FIR was recorded in the police-station. He further admits that Kikkar Singh was not got identified from him. He was successfully confronted with the contents of the FIR because in the FIR there is no mention that his other son Hakam Singh was present in the house.

Be that as it may even we believe the presence of Hakam Singh at the house being family member still the point for identification will be a predominant factor for our consideration. The reading of the FIR would show that it was lodged in the police-station vide DDR No. 6 at 10.00 A.M. but this registration of the FIR is also falsified from the statement of Makhan Singh. As per the statement of Shri Makhan Singh, the police came to his house at about 7/7.30 A.M. It is also the case of the prosecution that the inquest proceedings were prepared at the spot. But again it does not appear to be correct but as per the statement of Shri Makhan Singh the police took the dead body of his son Gurcharan Singh to the police-station and then to the hospital. Even at the time of the preparation of the inquest report on 31.12.1990, the name oft he accused were not disclosed. Thoughshir Makhan Singh has tried to show that police had obtained his thumb-impression on some document but he is not in a position to tell the description/detail of that document. A very vital fact has been admitted by Shri Makhan Singh in his cross-examination when he deposed that police had arrested the appellant on the next day of the occurrence i.e. on 31.12.1990. Meaning thereby that the police wanted to fix this appellant by one way or the other in order to solve the crime. If the police had taken the accused into custody on 31.12.1990, what was the difficulty on the part of the Investigating Officer in not asking the appellant to conceal his face as his identification was to be got conducted from the witnesses namely Makhan Singh, Lakha Singh or Hakam Singh. On the contrary, the case set up by the Investigating Officer is that accused was arrested on 28.1.1991. The supplementary statement which was recorded by the Investigating Officer of the witnesses is dated 6.1.1991. If the identity of the accused was known to the witnesses on the night of the occurrence, their names should have firstly come in the FIR; secondly in the inquest report, thirdly in the summary of inquest report and fourthly in the document prepared by the Investigating Officer at the spot or so much so even on 31.12.1990, if entire allowance is given to the prosecution witnesses that on account of fear they did not tell the names of the assailants to the Investigating Officer at the time of the lodging of the FIR. After discussing the statement of PW now, we switch over to the statement of Hakam Singh who is the real brother of the deceased. Though this witness tries to implicate the appellant in his substantive statement/yet we are not in a position to accept his statement because in the earlier statement recorded by the Thanedar on 31.12.1990 the witness has stated that some unknown persons fired upon his brother. The witness had the cheeks to deny that his statement on 31.12.19990 has not been recorded. The fact is that his statement was recorded and his supplementary statement was also recorded on 6.1.1990. In the cross-examination, the witness also admits that he knew the accused earlier as he used to sell illicit liquor prior to the occurrence. If this was the situation there was no bar on this witness to depose about the name of the culprit before the police on 31.12.1990. He could pass on that vital information about the identity of the accused to his father or to his uncle. The very fact that appellant was not named in the FIR or subsequent to the FIR, would show that the identity of the appellant is a doubtful affair.

The things do not rest here. Makhan Singh admits in the cross-examination that accused was identified at the spot. If this was the correct state of affairs then the only inference which can be drawn is that by not mentioning the name of the appellant or his companion in the FIR, is vital and big blow to the case of the prosecution, Makhan Singh''s statement to the effect that accused was named before the police by his father also appears to be incorrect because Makhan Singh in his police FIR does not name any of the culprits. It is not the case of the prosecution nor it has been so projected either before us or at the trial Court that the investigation in this case was partial. It could not be possibly partial because the accused was not known to anybody and it is the case of the prosecution that Shri Kikkar Singh was apprehended somewhere on 28.1.1991. In the statement Ex. PA the name of Kikkar Singh is not mentioned. The substantive statement of the witness that Kikkar Singh fired many shots upon his brother has been successfully confronted by the defence in the trial Court.

The next witness is Shri Lakha Singh, the brother of the complainant. This witness too deposed that he knew the accused earlier and that he did not give the description of the accused as he was not known to him but the things are otherwise. This witness too has successfully been confronted with his police statement Ex. DB. There can be honest mistake with regard to the identity at the hands of one person. This mistake cannot be repeated by another person and again repeated by the third person. The endeavour on the part of t he prosecution witness at the trial to make out a case of known eye witness is totally false. It is also the case of the prosecution that at the time of the arrest of he appellant he was not found in possession of any fire arm. If we eliminate the presence of Makhan Singh/Hakam Singh and Lakha Singh from the spot we are only left with the medical evidence, we all know that medical evidence is a corroborative piece of evidence. This aspect alone is not enough to record a conviction. At the cost of repetition we may say that the question of identification is predominant and sole point in this case. The identification of a culprit for the first time in Court is valueless.

In Kanan and Others Vs. State of Kerala, it was held as follows:-

"Where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade u/s 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once. If No. T.I. parade 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 Court, Decision of Kerala High Court reversed"

This Court in 1998 (3) RCR 680 Balwan v. State of Haryana held that when material point for determination in a trial is about identification of the accused and it is established on the record that no identification parade was got conducted by the Investigating Officer then in such a situation the identity of the accused for the first time in Court is no identification in the eyes of law and in such a situation the benefit of doubt should go to the accused. Similar view was adopted by the High Court in 1999 (3) RCR 326 Devinder Singh v. State of Haryana.

The learned trial Court in the quoted para has recorded the conviction by relying upon the sole factor that the appellant Kikar Singh was identified in the Court and that the prosecution witness has no axe to grind. Both the reasons are shallow and not legally tenable. The learned trial Court has forgotten a very vital fact that this occurrence had taken place during the days when terrorism was at peak in the State of Punjab which was burning due to the activities of the terrorists and extremists. Such like offences used to be committed at random and with impunity with no motive but to create terror in the mind of innocent persons'' hundreds of innocent men or women and children became the target at the hands of terrorists whose main object was to break the law and order situation in the present State but there was no immediate motive on the part of such assailants. The law Courts are subsurvient to the law of evidence. On mere allegations howsoever strong may be, conviction cannot be recorded. Those allegations have to be translated into proof as per the law of evidence. In Shaikh Umar Ahmed Shaikh and Another Vs. State of Maharashtra, , the Honble Supreme Court has ruled that no doubt, the evidence of identification parade is not a substantive evidence, but its utility is for purposes of corroboration. In other words, it is utilised for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. The real and substantive evidence of the identity of the accused comes when witnesses give statement in the Court, identifying the accused. When the accused were already shown to the witnesses their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made basis for recording conviction against the accused. The reliance of evidence of identification of the accused in the Court by the Designated Court, was an erroneous way of dealing with the evidence of identification of the accused in the court by the two eye witnesses and had caused failure of justice.

In the present case, it has come from the statement of Makhan Singh that accused was in the custody of the police on 31.12.1990 However, the Investigating Officer says that accused was apprehended on 28.1.1991 meaning thereby that the appellant remained in custody of the police. In such a situation, a reasonable inference can always be drawn that the appellant was shown to the witnesses who could tell a lie for the purpose of taking revenge.

From above discussion, we have tried to show that the finding of conviction recorded by the learned trial Court in para No. 16 of the judgment is not sustainable in the eyes of law. Therefore, we allow this appeal, set aside the judgment and order of conviction and sentence and acquit the appellant of the charge framed against him. He shall be set at liberty forthwith if not wanted to convicted in any other case. The case property shall stand confiscated to the state and shall be destroyed according to rules. Let intimation about this acceptance of this appeal be sent to the jail authorities and Chief Judicial Magistrate, Faridkot so that the appellant may be set at liberty if he is in custody.