Naib Singh vs State of Punjab .

S.D. Bajaj, J.

Pursuant to the information allegedly supplied by Sohan Singh deceased to the police in the year 1983, the police was able to recover poppy husk from Sukhdev Singh, real brother of Naib Singh accused. Sukhdev Singh was thereafter prosecuted, convicted and sentenced for it.

On 16th March, 1986 around 8.00 P.M. Sohan Singh was getting his sugarcane crushed and making `gur'' out of it at the sugarcane crusher of Naib Singh accused. Nachhitar Singh, Naib Singh, author of the first Information report, both real brothers of Sohan Singh, were also there together with their helpers in Sham Singh and Sant Singh.

Naib Singh owner of the sugar cane crusher came there around 8.30 P.M. with his friends Bhagwan Singh and Hamir Singh. Hamir Singh was carrying his licensed gun and its cartridges with him at the relevant time. On arrival Naib Singh accused appellant addressing Sohan Singh deceased while standing in front of the Kotha of sugarcane crusher, proclaimed. "Today we shall teach you a lesson for getting the poppy husk recovered from the possession of my brother Sukhdev Singh. Bhagwan Singh added fuel to the fire by asking Hamir Singh, who was carrying licensed gun with cartridges, as to what was he waiting for and further asked him to hand over the loaded gun to Naib Singh accused so that he might remove the thorn of Sohan Singh therewith. Hamir Singh did so and made over, the gun to Naib Singh accused fully loaded. Naib Singh fired the gun. Pallets emanating therefrom hit Sohan Singh in the chest abdomen, neck and face, who succumbed to the injuries there and then.

On being charged with the commission of offences under section 302 of the Indian Penal Code and 27 of the Arms Act accused Naib Singh, under section 302/34 of the Indian Penal Code and section 30 of the Arms Act accused Hamir Singh and under section 302/34 of the Indian Penal Code accused Bhagwan Singh, all three accused pleaded not guilty and claimed to be tried. Vide its impugned judgment dated 21st November, 1987 learned trial Court acquitted Bhagwan Singh, convicted Hamir Singh accused under section 30 of the Arms Act only and sentenced him to undergo rigorous imprisonment for a period of 3 months and convicted Naib Singh accusedappellant for the commission of offences under sections, 302 of the Indian Penal Code and 27 of the Arms Act. Naib Singh was awarded life imprisonment for his conviction under section 302 of the Indian Penal Code and also fined Rs. 2000/. In default of payment of fine accusedappellant was ordered to undergo rigorous imprisonment for a further period of two years. For his conviction under section 27 of the Arms Act accusedappellant Naib Singh was ordered to undergo rigorous imprisonment for a period of three years. Both the substantive sentences imprisonment awarded to accusedappellant Naib Singh on both these counts were ordered to run concurrently. Feeling aggrieved from the impugned judgment dated 21st November, 1987 of the learned trial Court, Naib Singh has filed Cr. A. No. 609DB of 1987 and 16DB of 1988 in this Court separately against his conviction and sentence under section 102 of the Indian Penal Code, and section 27 of the Arms Act respectively.

We have heard Shri H.L.Sibal, Sr. Advocate, with Sarvshri G.S.Dhillon and R.K. Handa, Advocates, for the appellant, Shri P.S. Kang, Advocate, for the State and have carefully gone through the evidence on record.

Learned counsel for the appellant pointed out three infirmities in the prosecution case set up against the accused. One that Naib Singh accused did not have the gun himself and in the interval during which Bhagwan Singh persuaded Hamir Singh to make over his licensed gun to Naib Singh after loading it, deceased Sohan Singh could have easily run away from the place of occurrence and saved himself. The argument is wholly without merit because Naib Singh accusedappellant together with his two companions in Hamir Singh and Bhagwan Singh was standing at the entrancecumexit gate of the sugarcane crusher Kotha. Deceased victim Sohan Singh could neither run away out of it nor make good his escape from the place of occurrence.

Secondly it was urged that the single barrel .12 bore gun I used as weapon of offence was discovered by the police in pursuance of disclosure statement Exhibit PC, vide recovery memo Exhibit PD, on 22nd March, 1986 six days after the occurrence with the empty cartridge fired by Naib Singh on the deceased still lying inside it. This argument again has no merit because the gun belonged to Hamir Singh who had given it to Naib Singh on the asking of Bhagwan Singh after loading it. After the fire, Naib Singh concealed it under the parali inside his field. Either on account of desparate hurry in concealing it or in for want of knowledge that empty had to be taken out there from accused appellant concealed it as it was immediately after the occurrence and this is how it came to be discovered at his instance in the condition it was kept concealed by him. There is thus nothing unusual in it.

Thirdly it was urged that Kapur Singh P.W.6 Member Panchayat did not name the accusedassaillant who killed Sohan Singh. This argument again has little merit in it. The witness having gone back upon his statement made to the police under section 161 of the Criminal Procedure Code had to be got declared hostile and leading questions were put to him by the learned Public Prosecutor with permission of the learned trial court; of course to elicit the truth. The witness was duly confronted with his statement made to the police wherein he was attributed to have categorically stated that Naib Singh accusedappellant had fired from the gun of Hamir Singh at Sohan Singh deceased and thereby killed him.

Eye witness account of the whole occurrence coming from the mouth of the real brother of the deceased named Naib Singh P.W.1 inspires confidence and can safely be relied upon to case the conviction of the accusedappellant there on because real brother of the deceased would not be inclined to protect the real culprit and falsely implicate the accused appellant.

Speaking of relation witnesses their lordships of the Supreme Court observed in Gurcharan Singh v. State of Punjab, A.I.R. 1956 Supreme Court 460; Gojendra Singh v. State of U.P., A.I.R. 1975 Supreme Court 1703 and State of Rajasthan v. Smt. Kalki and another, A.I.R. 1981 Supreme Court 1390, 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 relations of the deceased they were only natural witnesses to see the occurrence which took place in front of the house of the parties. In the instant case both the relation eyewitnesses had no interest in protecting the real culprit and falsely implicating the accused." In this view of the matter, both the appeals and rendered wholly without merit and are accordingly dismissed.