Malook Singh vs State of Punjab

S. D. Bajaj, J.

Gurbux Singh eldest real brother of the deceased, who is living in Delhi, sold 23 Kanals of his agricultural land, falling to his share on partition, situated in village Naura to Malook Singh for Rs. 1,75,000/ in June, 1986. Girdawari of the land sold was entered in the name of his other two brothers in Dayal Singh and Bela Singh. Ever since thereafter both the brothers of the vendor were putting, obstacles in the way of vendee Malook Singh to his getting actual physical possession of the land sold to him by Gurbux Singh. Civil suit as also security proceedings were pending interparties between the vendee and the two brothers of the vendor Dayal Singh, now deceased, was elder amongst two brothers living in village Naura.

Around 9.00 P.M. on 9th February, 1987 when Dayal Singh had come back from Gurdwara to his residential house in village Naura after attending a meeting presided over by him along with his brother Bela Singh and Tara Singh son of Waryam Singh of his village and was in the process of changing clothes there was a knock at the door. As soon as Dayal Singh dressed in underwear and vest (Bunyan) opened it Malook Singh standing outside fired a shot from his pistol which allegedly hit Dayal Singh below the nose. Dayal Singh fell down on the ground and breathed his last. At the relevant time Malook Singh was allegedly accompanied by Mehar Singh son of Sunder Singh, Avtar Singh son of Naurang Singh, both carrying a kirpan each and Gurmel Singh his own son carrying a Gandasi and is attributed a Lalkara proclaiming. ` Dayal Singh be taught a lesson for not delivering possession of the land." Occurrence was seen by Bela Singh and Tara Singh the two persons present in the house of Dayal Singh at the relevant time; who are both alleged to have followed Dayal Singh to the entrance door of his house; when he came towards it in response to the knock aforesaid.

On being charged with the commission of offences under Sections 302, 452 read with section 34 of the Indian Penal Code all the four accused pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated 5th December, 1987, learned trial court acquitted three accused in Mehar Singh, Avtar Singh and Gurmel Singh. Malook Singh alone was convicted under section 302 of the Indian Penal Code and section 27 of the Arms Act. For his conviction under section 302 of the Indian Penal Code accused was awarded imprisonment for life and ordered to pay Rs. 1000/ as fine. In default of payment of fine accusedappellant was ordered to undergo rigorous imprisonment for a further period of six months. For his conviction under section 27 of the Arms Act the accused was awarded rigorous imprisonment for a period of one year and also ordered to pay Rs. 500/ as fine. In default of payment of fine he was to undergo rigorous imprisonment for a further period of three months. Substantive sentences of imprisonment awarded to the accusedappellant on both the counts aforesaid were, however, ordered to run concurrently. Feeling aggrieved therefrom Malook Singh convictedaccused has filed Criminal Appeal No. 8DB of 1988 in this Court.

We have heard Shri Hira Lal Sibal, Senior Advocate with Sarvshri Satish Sibal and R.S. Rai, Advocates, for the appellant, Shri P.S. Kang, Advocate, for the State assisted by Sarvshri R.S. Cheema and P.K. Mutneja, Advocates for the complainant party and have carefully gone through the evidence on record.

It has been urged on behalf of the appellant that the solitary witness examined by the prosecution is Bela Singh real brother of the deceased. There was absolutely no occasion, for Bela Singh, whose own house is on the other side of the village, to be present inside the house of Dayal Singh deceased after 9.00 P.M. on 9th February, 1987 the date of occurrence in case the witness would have been there together with Tara Singh (prosecution witness given up as won over by the accused) then the deceased would not have been dressed in an underwear and vest (Bunyan) as asserted and that the admissions made by the witness about Hardial Singh Ragi living inside the house of the deceased during night time clearly suggest that available independent witness of the occurrence has been withheld by the prosecution and instead interested got up witness produced by it in his place. There is absolutely no merit in the contention raised. Cogent explanation offered by Bela Singh for his own presence and that of Tara Singh inside the house of the deceased; who was his elder brother, is that they had returned thereto together after attending the meeting inside the Gurdwara. Dayal Singh was elder brother of the witness as also President of the Gurdwara Committee. It was thus natural for the witness younger brother of the deceased as also Tara Singh another Member of the Gurdwara Committee to come to the house of the deceased after the meeting for seeing him off. Again there is nothing objectionable to the deceased changing his clothes in the presence of his younger brother (sic) Gurdwara Committee or responding to the knock at his door while still in the process of changing his clothes. It was out of respect for his elder brother and President of Gurdwara Committee that the two eye witnesses in Bela Singh and Tara Singh followed Dayal Singh deceased to the door of his house. Rather to the contrary, deposition of the real younger brother of the deceased in respect of the occurrence is sure guarantee of its truth. In Dalip Singh v. The State of Punjab, AIR 1953 Supreme Court 394 their lordships of the Supreme Court observed, "Ordinarily a close relative would be the last person to screen the real culprit and falsely implicate an innocent person and hence mere fact of relationship far from being the foundation for criticism of the evidence is often a sure guarantee of truth." There is no occasion to be suspicious about the presence of the younger brother in the house of his elder brother around 9.00 P.M. on 9th February, 1987. Mere fact that the witness is relation of the victim is not sufficient to discard his testimony. Relationship by itself is not a ground to discredit the testimony of the witness, if it is otherwise found to be consistent and true. Being younger brother of the deceased Bela Singh was a natural witness to see the occurrence which took place around the entrance door of his elder brother''s house.

Hardial Singh is not alleged to be present inside the house of the deceased at the relevant time. In normal course the President and other Members of the Gurdwara Committee having recently returned from the gurdwara, Ragi Hardial Singh who was to come to the house of the deceased only for sleeping therein at night could not normally be expected to have arrived therein or to be in the house of the deceased at the relevant time. Describing him as available independent witness of the occurrence who is withheld by the prosecution is obviously an error incapable of suggesting any inference; much less the desired one against the prosecution.

Delay of 71/2 hours in taking the special report to the Illaqa Magistrate again does not suggest the possibility of fabrication because on 9th February, 1987 after the Operation Blue Star night buses were not plying in Punjab. Even otherwise also it was observed by the Supreme Court in Rana Pratap and others v. State of Haryana, 1983(2) RCR(Crl.) 532 (SC) : AIR 1983 SC 680 that in the circumstances like the ones obtaining in this case as explained by Constable Ram Dhan PW 6 delay of eight hours in delivering the special report to Illaqa Magistrate was of no significance and did not suggest any inference of fabrication or false inculpation. Relevant observations read:

The First Information Report was given at 7.00 p.m. The special report which was prepared thereafter was despatched to the Magistrate at Karnal, 13 miles away, by Special Messenger. It reached the Magistrate at 3.00 a.m.

One must make some allowances for delays arising in the course of the ordinary conduct of human business. After the First Information Report is given, some time must have been taken to prepare the special report. A Special Messenger must have been sent for. Instructions must have been given. He must made some preparations to go upon the journey, perhaps have a meal and a change of dress. If he was travelling by some vehicle, there must have been some further delay to arrange for a vehicle. After reaching Karnal, the messenger must have made some other arrangements to go from the place where the vehicle must have stopped to the residence of the Magistrate."

Infirmity in the deposition of Bela Singh PW 3 to which our attention was specifically drawn by the learned counsel for the appellant pertains to his assertion of a single shot from his pistol having been fired by Malook Singh accused at Dayal Singh deceased. Dr. Lehmber Singh PW 2 gives out three injuries on the person of the deceased which suggests the firing of at least two shots by the accused on the deceased. This infirmity again does not cut much ice because once Dayal Singh fell down on the ground after receiving the first shot, the firing of another shot by accused on the deceased from his pistol thereafter may not have attracted the attention of Bela Singh; more so when Dayal Singh died on receiving the first firearm injury.

Eagerness on the part of accused Malook Singh to eliminate deceased Dayal Singh because he was unnecessarily putting hurdles in his way of obtaining actual physical possession of 23 kanals of land admittedly purchased by the accused from elder brother of the deceased named Gurbux Singh in 1986 provides a strong motive for the commission of the crime attributed to him by the accused. Finding recorded by the learned trial Court in regard to his conviction and sentence awarded to him are both affirmed. Criminal Appeal filed by the accusedappellant is, thus rendered wholly bereft of any merit therein and consequently dismissed.