SUBA SINGH

STATE OF PUNJAB

NOVEMBER 9, 1994

[DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.]

Terrorist Affected Areas (Special Courts) Act, 1984-Jndian Penal Code, 1860-S.14 /Section 302-Conviction u/s 302-Appeal-Death by firing with a pistol-Eye witnesses-No scope for mistaken identity-

Parties known to each other from before-FIR promptly lodged-Medical evidence corroborating evidence of eye witnesses-No doubt regarding place where incident took place-Conviction upheld

This statutory appeal u/s 14 of the Terrorist Affected Areas (Special Courts) Act, 1984 is directed against the judgment and order rendered by the Special Court convicting the appellant u/s 362 IPC and sentencing him to undergo imprisonment for life.

The appellant pleaded not guilty to the charge levelled against him and asserted that he was falsely implicated owing to enmity.

To prove its case the prosecution relied primarily upon the ocular version of the incident as given out by PW3 and PWS. Both of them stated that the appellant had participated in the betrothal ceremony of the brother of the deceased and thereafter consumed food and liquor.· They next stated that at or about 11 p.m., the deceased asked the appellant to leave the place and appellant felt insulted thereby. To . avoid any untoward incident, the deceased and others took the appellant aside to escort him to his place of work in the village. After they had proceeded a little distance, the appellant again took the deceased to task tor insulting and humiliating him. He then brought out a pistol from the fold of his loin cloth, fired at the deceased hitting him on the abdomen and ran away. The deceased, while being taken to the hospital, succumbed to his injuries.

During cross examination an attempt was made by appellant to prove that there was no light at the scene of occurrence so as to enable them to identify the miscreant. Relying upon the finding in the medical report that the stomach of the deceased was empty, it was argued that the case of the prosecution that after the betrothal ceremony food and

SUBA SINGH v. ST ATE OF PB.

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liquor were served stood completely belied. In his defence that he did A not participate in the betrothal ceremony, the appellant examined DWI who stated that while he had participated in that ceremony the appellant did not. He further stated that after the ceremony was over by 5 p.m. he and all other guests left.

Dismissing the appeal, this Court B

HELD : 1.1. Through the site plan prepared by the Investigating Officer and exhibited during the trial, the prosecution established that there was an electric post there. This apart, considering the sequence of events and the fact that the parties were known to each other from before, there could not be any scope for mistaken identity. Having C carefully gone through the evidence of PW3 and PW5 there is no reason whatsoever to disbelieve them, particularly when nothing could be elicited in cross examination to discredit them. The evidence of PW3 finds ample corroboration from the FIR which was promptly lodged . within three hours of the incident and contains the substratum of the D prosecution case. (389-E-F)

1.2. The next corroboration of their evidence is furnished by the medical evidence of PWl who conducted autopsy on the body of the deceased. According to PWI the death was due to shock and haemorrhage caused by the injuries and that the injuries were E sufficient in the ordinary course of nature to cause. death. The investigating officer seized some earth from the spot and sent the same to the Chemical Examiner for examination. The report of Asstt.

Chemical Examiner indicates that blood was found thereupon and it was reported that the same was stained with human blood. The above reports also to some extent corroborate the evidence of the two eye F witnesses regarding the place where the incident had taken place.

(390-C-D)

1.3. Regarding the contention that the stomach of the deceased was empty, there is no substance in this in absence of any question put to either PW3 or PW5 as to whether the deceased had consumed food or G drink. The Court also lost sight of the fact that since the betrothal was of his own brother, the deceased as the host was expected to wait for his dinner and drink till the guests had left. In any view of the matter, the mere absence of drink or food in the deceased's stomach cannot make the case of the prosecution untrustworthy. (390-E-F) H

A 1.4. In cross examination DWI admitted that even though he appeared before the police, he did not make any such statement before them. This conduct of DWI in not disclosing as to what happened in the ceremony when the police came to investigate into the case makes his evidence unworthy

0 of credit. (390-H, 39I-A-)

B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 286 of 1985.

From the Judgment and Order dated 28.2.85 of the Special Court at Ferozepur in Case No. 60of1984.

C K.G. Bhagat and S.K. Jain (NP) for the Appellant.

R.S. Suri and T. Topgay for the Respondent.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. This appeal under Section 14 of the Terrorist Affected Areas (Special Courts) Act, 1984 is directed against the judgment and order dated February 28, 1985 rendered by the Special Court, FP-rozpur convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life.

Shorn of details, the case of the prosecution is as under:

On April 18, 1984 the betrothal ceremony of Jagtar Singh brother of Pritam Singh (the deceased) was to take place in village Takhtupura.

Amongst others, the appellant was an invitee thereto. After the ceremony was over in the evening food and drinks were served to the guests. At or about 11 p.m. Pritam Sing}, requested the appellant to leave as he, by then, had his food and drink. The appellant took serious exception to such solicitation of Pritam Singh and retorted that the guests should not be treated in that manner. To avoid any further untoward incident Pritam Singh, Jagtar Singh, Lahora Singh and others took the appellant aside to escort him to his place of work in the village. After they had proceeded a G little distance, the appellant again took Pritam Singh to task for insulting and humiliating him. He then brought out a pistol from the fold of his loin cloth, fired at Pritam Singh hitting him on the abdomen and ran away.

J>ritam Singh, while being taken to the hospital, succumbed to his injuries.

In the meantime Jagtar Singh went to Nihalsinghwala Police Station and lodeed an information about the incident. On that information a case was H registered and ASI Prithi Singh (PW7) took up the investigation. He went

to the place of occurrence, collected blood stained earth from the spot and A sent the same to the Chemical Examiner for examination. After completion of investigation he submitted charge-sheet against the appellant and in due course the case was committed to the Court of Session.

The appellant pleaded not guilty to the charge levelled against him and asserted that he did not participate in the betrothal ceremony. According to B him, he was falsely implicated by Jagtar Singh owing to enmity.

To prove its case the prosecution relied primarily upon the ocular version of the incident as given out by Jagtar Singh (PW3) and Lahora Singh (PWS). Both of them stated that the appellant had participated in the betrothal and thereafter consumed food and liquor. They next stated that at C or about 11 p.m., Pritam Singh asked the appellant to leave the place and that the apPellant felt insulted thereby. They then stated about the subsequent conduct of the appellant which culminated in his firing at Pritam Singh with a pistol. In their cross examination an attempt was made on behalf of the appellant to prove that there was no light at the scene of D occurrence so as to enable them to identify the miscreant but such attempt failed. On the contrary, through the site plan prepared by the Investigating Officer and exhibited during the trial (EX.P.3) the prosecution established that there was an electric post there. This apart, considering the sequence of events and the fact that the parties were known to each other from before, there could not be any scope for mistaken identity. Having (:arefully gone E through the evidence of PW3 and PW5 we do not find any reason whatsoever to disbelieve them, particularly when nothing could be elicited in cross examination to discreit them. Then again, the evidence of PW3 finds ample corroboration from the FIR which was promptly lodged within three hours of the inci.dent and contains the substratum of the prosecution case.

The next corroboratio~ of their evidence is furnished by Dr. B.K. Goel (PWl), who conducted autopsy on the body of the deceased. His uncontroverted testimony shows that the deceased had the following injuries on his person:

"1. A lacerated punctured wound l cm x 1.1 cm with inverted margins on the frontal surface of the abdomen midway between costrophrenic angle and umbilicus l cm away from midline towards left. The wound was surrounded by marked blackening.

2. Lacerated punctured wound 1.5 cm x 1.5 cm with everted margins on the left flank of the abdomen just below enterior superior iliac spine (left).

The direction of the wound was downwards and outwards.

Both the wounds communicated with each other. The stomach, the parts of small intestines were lacerated and the abdomincal cavity was full of clotted blood."

According to PWl the death was due to shock and haemorrhage caused by the aforesaid injuries and that the injuries were sufficient in the ordinary course of nature to cause death. From the testimony of the Investigating Officer (PW7) we get that he seized some earth from the spot under seizure memo (Ex.P.15) and sent the same to the Chemical Examiner for examination. The report of the Asstt. Chemical Examiner (Ex.P.7) indicates that blood was found thereupon and the report of the Asstt. Serologist

(Ex~P.6) indicates that the same was stained with human blood. The above reports also to some extent corroborate the evidence of the two eye witnesses regarding the place where the incident had taken place.

Relying upon the finding of Dr. Goel (PWI) that the stomach of the deceased was empty, it was strenuously argued before us that the case of the prosecution that after the betrothal ceremony food and liquor were served stood completely belied. We do not find any substance in this contention in absence of any question put to either PW3 or PW5 as to whether the deceased had consumed food or drink. While on this point we cannot also lose sight of the fact that since the betrothal wa8 of his own brother, the deceased as the host was expected to wait for his dinner and drink, (if not a teetotaller) till the guests had left. In any view of the matter, the mere absence of drink or food in the deceased's stomach cannot make the case of the prosecution untrustworthy.

As has already been noticed, the appellant's defence was that he did not participate in the betrothal ceremony; and in support of his contention he examined one Gurjant Singh (DWI). He stated that while he had participated in that ceremony the appellant did not. He further stated that after the ceremony was over by 5 p.m. he and all the other guests left. He also spoke about an altercation that took place between the appellant and Jagtar Singh a few days before the incidnt. In cross examinatiOn he admitted that even though he appeared before the police, he did not make any such statement before them. We are in complete agreement with the

learned Trial Judge that this conduct of DWI in not disclosing as to what A happened in the ceremony when the Police came to investigate into the case makes his evidence unworthy of credit.

On the conclusions as above we uphold the impugned judgment and order of the Trial Court and dismiss the appeal. The appellant, who is on bail, will now surrender to his bail bond to serve out the sentence.

A.G.

Appeal dismissed.