Malkiat Singh vs State of Punjab

S.D. Bajaj, J.

One Niranjan Singh of village Lamme, tehsil Jagraon, district Ludhiana, who was owning 23 Killas 5 Kanals of agricultural land in the village died issueless. Malkiat Singh deceased was his tenant on that land. After the death of Niranjan Singh, Mohinder Singh, Mukhtiar Singh and Gurnam of the same village sit up a Will from the deceased in their favour which was unregistered. Gurdev Singh and Baldev Singh sops of Sarwan Singh both residents of village Machhike who men related to the deceased as his brother''s sonsinlaw set up a registered Will of the same property in their favour. Malkiat Singh deceased supported the relation legatees, who had set up registered Will in their favour and thereby antogonised himself to Mohinder Singh and others of his own village.

Triple murder of Mohinder Singh, Banta Singh and Gurnam Singh too., place in the village around 2 P. M. on August 15, 1981. Malkiat Singh now deceased along with two other persons named Sajjan Singh and Saudagar Singh was tried, convicted and sentenced for it. The deceased was released from custody and had returned to the village three months before the occurrence. Gurdev Singh and the deceased quarrled over a trifling on children''s affair. Security proceedings were initiated by Gurdev Singh against Malkiat Singh now deceased. After furnishing, bail to the learned Executive Magistrate at Jagraon therein, Malkiat Singh deceased was returning to the village from Jagraon around 8.30 P. M. to on the date of occurrence.

The deceased was yet on the way to his own house and had hardly reached in front of the house of Sadhu Singh when his name sake Malkiat Singh son of Chet Singh armed with a Gandasi and Maghar Singh suon of Nikka Singh armed with a Kulhari (axe) engrossed him from the opposite side and catching bold of him from his long hair dragged him to the house of Gurdev Singh when Malkiat Singh accused raised, a lalkara that the deceased is out from jail let us finish him today. Maghar Singh then gave an axe blow to the deceased on the right side of his head and Melkiat Singh accused gave him a Gandasi blow on the back side of his head. After the deceased had fallen down on ground Maghar Singh gave another axe blow to the deceased on the right eye and Malkiat Singh gave him another Gandasi blow on the right side of his head.

Surjit Singh, author of the First Information. Report, his brother Zora Singhs and Shrimati Mohinder Kaur wife of Surjit Singh are stated to be eyewitnesses of the occurrence. Deceased Malkiat Singh is alleged to have succumbed to the injuries on the spot.

On being charged with the commission of offences under Sections 302 read with Section 34 of the Indian Penal Code both the accused pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated November 10, 1987, learned trial Court convicted accusedappellant Malkiat Singh of the commission of the offence under Section 302 read, with Section 34 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay Rs. 1,000/ as fine. In default of payment of fine accusedappellant was ordered to undergo rigorous imprisonment for a further period of one year. Coaccused Maghar Singh was given the benefit of doubt and acquitted.

We have heard Shri B.S. Bindra, Senior Advocate (Sarvshri V.G. Dogra and P.S. Bajwa, Advocates, with him) Shri PS. Kang, Advocate for the State and have carefully gone through the evidence on record.

Referring to the observations made in Kasturi Lal.v. State of Haryana, 1976 Criminal Appeals Reporter 226, (Supreme Court) it has been urged by the learned counsel for the appellant that the case set up by the prosecution against coaccused Maghar, Singh, who has been acquitted by the learned trial Court, is in no way different from the case set up against Malkiat Singh accusedappellant and therefore, his conviction should also be set aside. The argument is wholly without merit.

Learned trial Court has offered the reasoning for acquitting Maghar Singh coaccused in para 20 of its judgment dated November 10, 1987 which reads :

"Although, prosecution evidence is the same against both accused Malkiat Singh and Maghar Singh, but there are certain circumstances available on record which distinguish the case of accused Maghar Singh from that of his coaccused Malkiat Singh. S.I. Harbhajan Singh (PWS), the investigating officer, has disclosed in his deposition that on March 16, 1987 he examined Sarvshri Ajaib Singh and Ujagar Singh and in the light of their statements he formed the opinion that accused Maghar Singh had no complicity in the murder of Malkiat Singh. Evidence of Sukhdev Singh (D.W.) 1) who was posted as D.S.P. Jagraon at the time of occurrence also creates some doubt regarding involvement of accused Maghar Singh. He has deposed that the S. S. P. Ludhiana, on the application, photostat copy of which is Exhibit D.C. which was moved by Shri Darshan Singh son of accused Maghar Singh, ordered reinvestigation of the case. The witness further marked the application to investigating officer Harbhajan Singh, to do the investigation which the latter did and recorded statements of various witnesses. D.S.P. Sukhdev Singh himself also visited the spot and met some 1819 persons and recorded their statements. After this exercise the D.S.P. recommended to the investigating officer to get accused Maghar Singh discharged and instead arrest accused Gurdev Singh. The complicity of accused Maghar Singh becomes further doubtful when we advert to the deposition of Surjit Singh wherein he had stated that Maghar Singh at the time of occurrence was having his face muffled. All these circumstances give birth to a lurking doubt in the mind of the Court regarding involvement of accused Maghar Singh. As observed earlier, although evidence against accused Maghar Singh and Malkiat Singh is somewhat identical but looking to the above facts I am inclined to give benefit of doubt to accused Maghar Singh by way of extra caution and accordingly acquit him of the charge levelled against

It would, this appear that the benefit of doubt was allowed to Maghar Singh on the basis of opinion expressed by police officers in his favour while rechecking the investigation on the application of his son Darshan Singh moved before the Senior Superintendent of Police, Ludhiana, and on account of the acquitted accused having a muffled face while committing the crime. Neither of the two 7 considerations aforesaid holds good in the case of Malkiat Singh accusedappellant and, therefore, this conviction cannot be set asideon the same grounds.

Secondly, while doing so, learned trial Court adopted reasoning unwarranted by law in as much as opinion pressed by the police officers cannot be made the basis for recording a judicial finding in regard to guilt or innocence of the accused. A covillager could also identity Maghar Singh accused in spite of his muffled face and had actually named him as the assailant in spite of the handicap adverted to by the learned trial Court. In spite of it this Court finds itself helpless to take any action against Maghar Singh coaccused acquitted by the learned trial Court because the State or Punjab has accepted its verdict in this regard and has not come up in appeal against his acquittal. Even the limitation for filing the appeal has also since expired. These distinguishing features in the case of Maghar Singh, therefore, dissuade this Court from giving the same relief to Malkiat Singh accused appellant.

With reference to the observations made in Hallu and others, v. State of Madhya Pradesh, 1974 Criminal Appeals Reporter 172 (Supreme Court) it has been urged by the learned counsel for the appellant that the course of conduct attributed to the eye witnesses in real brothers of deceased in quietly watching the occurrence is unnatural and that neither of them having asserted that axe and Gandasi blows were also given to the deceased from the reverse side as well; which is evident from the injuries found on the person of the deceased and the expert medical opinion of Dr. Amarjit Kaur (P.W. 2), their eyewitness account of the occurrence is rendered incredible and ought not to have been relied upon by the learned trial Court for basing the conviction of the accusedappellant. This argument against is wholly without merit.

Speaking of relation witnesses the Supreme Court observed in Dalip Singh v. The State of Punjab, 1953 Supreme Court 394; Gurcharan Singh v. State of Punjab, AIR 1956 Supreme Court 460 and Gojendra Singh v. State of U.P. AIR 1975 Supreme Court 1703 as follows :

"Ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person and hence the mere fact of relationship far from being the foundation for criticism of the evidence is often a sure guarantee of truth.

Relationship of the three out of four prosecution witnesses to the murdered man is no ground for not acting upon their testimony if it is otherwise reliable in the sense that the witnesses were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened there at the scene of occurrence.

Moreover being close relation of the deceased they were only natural witnesses to see the occurrence which took place in front of the house or the parties."

Explaining the unnatural course of conduct attributed to relation eyewitnesses in real brothers of the deceased in not coming to the rescue of Malkiat Singh deceased, Surjit Singh (PW 4) stated in the course of crossexamination that they did not do so because the two accused were duly armed while making the assault on the deceased while they (the eyewitnesses) were all empty handed and then their house was at a great distance from the place of occurrence and they could not, therefore, go thereto for collecting arms. In similar circumstances, it was observed by the Supreme Court in Angad v. State of Maharashtra, 1981 Criminal Law Journal 733, the evidence of eyewitnesses cannot be rejected merely on the ground that they did not intervene to save the deceased".

Much capital has been made of the alleged failure of the prosecution to get it clarified from the eyewitnesses that after the fall of the deceased on receipt of two injuries in the head from sharp side of axe and Gandasi, both the accused inflicted the remaining two injuries, on the person of the deceased, in lying down position, from the blunt side of their respective weapons of offence aforesaid. Omissions like the present one which do not go to the root of the matter and shake the basic version of the eyewitnesses cannot be attached undue importance. More so when the all important `probabilityfactor echoes in favour of the version narrated by the eyewitnesses. Eyewitness account of the occurrence in regard to the number and nature of the injuries allegedly inflicted by the accused on the person of the deceased and the weapons of offence used while doing so having been duly supported and corroborated by the expert medical opinion of Dr. Amarjit Kaur (PW 2), the alleged omission (if at all) pales into insignificance and cannot be availed of by the accused to discard the eyewitnesses on this account. The argument is, thus, of no avail to the accused appellant for the desired purpose.

In result, for the reason given above, the appeal is rendered wholly without merit and is consequently dismissed.