MALKIAT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This appeal under S. 14 (1 of the Terrorist Affected Area (Special courts) Act, 61 of 1984 for short 'the Act' and reference under S. 15 (3 thereof and S. 366 of the Code of Criminal Procedure, 1973 for short 'the Code' for confirmation of the death sentence of Malkiat Singh, accused No. 1 (A-1 in Sessions Case No. 62 of 1984, Trial No. 23 of 1985 on the file of the Special court, Ferozepur. The first accused was convicted under S. 302 read with S. 34, Indian Penal Code for causing' the deaths of Ram Babu, D-1, Sunder Lal, D-2, Ram Nath, D-3 and Ram Chand, D-4 of each death and sentenced to death subject to confirmation by this court. He was also further convicted under S. 307 read with S. 34, Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years for attempt to murder Ashok Kumar, Public Witness 4. Sukhdev Singh A-2 and Sohna Singh, A-3 were convictedunder S. 302 read with S. 34, Indian Penal Code for causing deaths of D-1, to D-4 and sentenced to undergo imprisonment for life. A-2 and A-3 were convicted under S. 307 read with S. 34 Indian Penal Code for attempt to murder Public Witness 4 and were sentenced to undergo rigorous imprisonment for 5 years, all the sentences to run concurrently.

(2.) Ram Avtar, Public Witness 3 and D-3 Ram Nath, first cousin, had liquor contract in the village Kotli Ablu from 1983 and 1984. D-2 and Public Witness 4 were working in the liquor shop. The wives of D-2 and D-4 are sisters. D-4 came to see D-2. D-l was working in the liquor shop at Ablowhad. Since the liquor therein had exhausted he came to Kotii Ablu to sell the liquor in the shop of D-3. A-1 and A-2 are brothers and are residents of Kotli Ablu and Sohna Singh, A-3 is their maternal uncle (mother's brother) and a resident of Rameana situated at a distance of 8 km. to Kotii Ablu. These are the admitted facts. It is the case of the prosecution that at about 9 p. m. on 4/06/1984, A-1 and A-3 came to the liquor shop of D 3 wherein pw 3, D-1, D-2 and Public Witness 4 were also present and were vending the liquor. They sold one bottle of liquor to A-1 and A-3 on credit. After its consumption A-1 and A-3 demanded another bottle to which D-3 refused to sell on credit. Thereon A-1 and A-3 abused them and a quarrel ensued. Both left the shop in anger. D-1 and D-2 slept on a cot in front of the liquor shop. D-3 and D-4 slept on wooden takthposh in front of the liquor shop. Public Witness 3 and Public Witness 4 climbed the roof of the shop and slept there. During past midnight of 4/06/1984 at about 12.30 a. m. Public Witness 3 and Public Witness 4 heard gunshot fire and got up and saw by the visibility of electric light emanating from the house of one Gurbax Singh whose son was examined as DW 2 that A-l was firing with rifle at D-1 to D-4 and A-2 and A-3 hitting them with gandasas (sharp-edged weapons). Seeing Public Witness 3and Public Witness 4 on the terrace A-1 fired at them but they escaped uninjured and they jumped down. Public Witness 3 jumped towards back side of the shop and ran towards the village and hid in the school. Public Witness 4 jumped to the front side and ran towards the village. A-1 fired at Public Witness 4 and A-2 hit him. He received seven bullet injuries fired by A-1 on the back side of right leg, thigh and left side of the abdomen. While he was running A-2 hit him on the right shoulder and caused an incised injury. He ran to the house of Gurmail Singh, Public Witness 3 with bleeding injuries, knocked on the door and fell down unconscious. On 5/06/1984 at about 9 a. m. Jit Singh, the chowkidar of the village reached Kotii Police Station and reported to Public Witness 5, SHO who reduced Ex. P-24 into writing. In the FIR he stated that he had heard gunshot firing from the side of the liquor shop. Due to fear and the prevailing tense situation he did not come out. Next day morning he saw several people collected at the liquor shop and saw the dead bodies of D-1 to D-4 and Public Witness 4 was lying unconscious in thehouse of DW 3 and he was asked to report the matter accordingly. Public Witness 5 after issuing FIR to all the concerned, went along with police party to the spot at noon and saw the dead bodies. He went to the house of DW 3 and found Public Witness 4 under shock and unconscious. He sent him for medical examination by Public Witness 2, the doctor as his condition was serious. Public Witness 3 on coming to know of the arrival of the police and the military people at noon mustered courage and came out from the school and went to the shop. He was examined at the inquest and he also attested the statement recorded by the police at the inquest. Public Witness 5 enclosed the copies of his statement to, the inquest reports Exs. P-4, P-6, P-8 and P-10 and sent the dead bodies with the reports for post-mortem by Public Witness 2 Doctor. He also prepared rough sketch of the scene under Ex. PI/a. He recovered the bloodstained earth and cots etc. under Ex. P-16. He recovered 7 empty and two live cartridges Exs. MO 1 to MO 9 under panchnama Ex. P-13. He remained on the spot till 10. 30 p. m. and saw the light emanating from the house of Gurbax Singh and falling at the scene of occurrence. He sent requisition twice to the hospital to find whether Public Witness 4 was in a fit condition for recording his statement. On 7/06/1984 at about 7 a. m. he received an endorsement that Public Witness 4 was in a fit condition to make his statement. Accordingly he recorded the statement. He sent MOs 1 to 9 cartridges and pellets recovered from body of D-4 under Ex. P-25 to ballistic expert for report. On 15/06/1984 when he was picketing on the drain of village Chand Bhan at about 3.30 a. m. he arrested the appellants and recovered from the person of A-1 Ex. MO 11 rifle, 351 bore (semiautomatic) of USA make loaded with two cartridges MO 12 and MO 13 under panchnama in the presence of panch. Pursuant to a statement made under S. 27 Evidence Act by A-3 gandasa MO 14 was recovered under Ex. P-27. The articles recovered were sent for chemical examination and the ballistic reports. Under Ex. P-28, the ballistic expert found that the empties Ex. MO 1 to MO 9 had been fired from rifle Ex. MO 11. Gandasa was stained with human blood as per the report Ex. P-29. Public Witness 2 who conducted the post-mortem on D-1 and D-2 found on each of the dead bodies two gunshot entry and exit wounds. D-3 and D-4 were found to have 4 gunshot lacerated and two incised injuries and 5 lacerated and two incised injuries respectively. He removed MOs 16 and 17 pellet from the body of D-4. He issued post-mortem certificates Exs. P-3, P-5, P-7 and P-9 respectively. He also examined Public Witness 4. He found as many as 7 lacerated gunshot injuries and one incised injury and issued medical certificate Ex. P-2. Injuries 1 to 7 were caused by gunshot fire and injury 8 by a sharp weapon. Public Witness 5 sent two pellets recovered by him from the body of D-4 to the ballistic and chemical examination. The defence consented to mark FIR, the affidavits of panch witnesses and. constables; the fire arms licence of A-1 under Ex. P-17, and also the reports of the ballistic expert and chemical examination report without oral evidence. Public Witness 6 the Deputy Superintendent of Police supervised the investigation conducted by Public Witness 5. The prosecution examined 6 witnesses and defence examined 3 witnesses and marked the documents. The accused were examined under S. 313 and denied their complicity and examined DW 1 to DW 3 to prove that the bulb of Gurbax Singh was not burning and Public Witness 3 was residing at Madhok and he was brought to Kotli Ablu by the police and Public Witness 4 was conscious and did not disclose the names of the appellants at that time. The lower court believed the direct evidence of Public Witness 3 and Public Witness 4 and the prosecution case that A-1 fired at the deceased with MO 11 rifle, A-2 and A-3 also participated in the attack. It also found that MO 11, the rifle belongs to A-1 and he fired at the deceased and Public Witness 4. Accordingly he convicted them for offences under S. 302/34 and 307/34 IPC. When they were asked under S. 235 (2 Criminal Procedure Code, they declined to lead evidence and the Sessions courts awarded sentence to the accused as referred to earlier.

(3.) Shri Lalit, the learned senior counsel for the appellants contended that the evidence of Public Witness 3 and Public Witness 4 is highly artificial, unbelievable and untrustworthy, barring their evidence, there is no other evidence to connect the appellants with the commission of the crime. The story that Public Witness 3 and Public Witness 4 climbed on the terrace and were sleeping is false as they cannot climb to a height of 8-1/2 ft. Public Witness 3 did not disclose his witnessing the occurrence to anyone till noon. DW 3 the Sarpanch of Madhok spoke that Public Witness 3 along with the panch witnesses were brought from Madhok in a jeep by the police, so he is a planted witness. In support thereof he contends that the specific evidence of DW 3 in this regard was not challenged in cross-examination. Public Witness 4 was not examined at the inquest though he was conscious. The police requisitioned the dog squad to sniff the scene of offence to identic the unknown accused. Public Witness 5 and Public Witness 2 the doctor admitted that the omission of the names of the accused in the case diary and memos would belie the theory of witnesses. The omission of the names of the accused in the cause title (Banam) would clearly show that Public Witness 3 and Public Witness 4 were not direct witnesses and Public Witness 3 was introduced at a later stage and he was not examined at the inquest and that Public Witness 4 did not identify the appellants. This was also further corroborated from the fact that admittedly Ex. P-24, recited that three, unknown assailants had killed the deceased. Admittedly the dog squad was requisitioned. The appellants were falsely implicated. As regards Public Witness 4, he further contended that as per the evidence of DW 2 son of Gurbax Singh and DW 3, Gurmail Singh, Public Witness 4 was conscious at the time of his coming to the house of DW 3 and remained conscious. The police did not examine him till 7/06/1984 as the assailants were not known. There was no light in the house of DW 1 and Public Witness 3 and Public Witness 4 could not have identified the assailants. The theory of liquor vending is doubtful for the reason that the entire State was under curfew on that day due to Blue Star operation on 3/06/1984 and no vending would take place when there is a curfew. If really the appellants 1 and 3 had taken the liquor on credit, nothing prevented the prosecution to produce the chit admittedly taken by D-3. The theory of burning the shop shows that it is an act of terrorists as was noted in the case diary by Public Witness 6. Thus the appellants were implicated by suspicion and the prosecution had not established the guilt of the appellant beyond reasonable doubt. The conviction and sentence by the special court was on the same day, namely 29/05/1985 which contravenes the mandatory provision of S. 235 of the Code. In view of the decision of this court in Allauddin Mian v. State of Bihar and Anguswamy v. State of T. N. the sentence of death awarded to A-1 is illegal. A-2 had no axe to grind against the deceased. He neither went for drinking at 9 p. m. on that day nor had a quarrel. He bears no motive to kill the deceased or attack Public Witness 4. No recovery of gandasa was made from him. Public Witness 3 and Public Witness 4 have no prior acquaintance with him. Therefore, it was highly doubtful whether A-2 had participated in the offence. As regards the third appellant (A-3, it is his contention that he is a resident of Rameana. pw 3 or Public Witness 4 do not know A-3 at all. Therefore, he may not be able to have participated in the crime. It was resisted by Mr Dass Bahl, learned counsel for the State.