GURMEJ SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Harnam Singh, Sarpanch of village Naushera, was murdered on the night between 6th and 7th June, 1976 while he was sleeping at his tubewell to guard the wheat bags stacked in his field. P.W. 1 Dr. Malhotra who conducted the autopsy at about 4.15 p.m. on 7th June, 1976 found four injuries on the person of the deceased, namely, (i) a lacerated penetrating circular wound, 1/4" in diameter, with black margins inverted on right middle back, 3" from midline and 9" from iliac crest, (ii) a verticle bruise 6" x 1/2 " on the front of right forearm running downwards and outwards, (iii) bruises in the area of 5" x 1 " on the front and inner aspect of right upper-arm above the elbow joint, running forwards, outwards and downwards and (iv) an abrasion 5 x 1 "on the right side of the chest, 5" from mid-line and 3" from the clavicle running downward and inward. On opening the first wound it was found that the 8th and 9th ribs were fractured posteriorly; the diaphram and superior surface on the left lobe of the liver were lacerated; the heart was lacerated into pieces and the third, fourth, fifth, sixth and seventh ribs of the left side were broken anteriorly. The exit wound was 8 x 4" on the left upper chest just above the nipple. Death was on account of shock and haemorrhage resulting from the bullet injury. This injury No. 1 was stated to be sufficient in the ordinary course of nature to cause death. The other injuries were possible by a hard and blunt weapon and were simple in nature. Death was instantaneous. Both the Courts below, therefore, rightly concluded that death was homicidal.

(2.) The prosecution case, briefly stated, was that the appellants and the deceased who were neighbours in the village and quarrelled over the passage of sullage water a few Months before the incident. The appellants had diverted their sullage water towards the house of the deceased and the latter had protested and frustrated their effort. On account of this obstruction the sullage water collected in a pool near the house of the appellants which infuriated them. On account of this incident as well as past election rivalries the relations between the appellants and the deceased were so soured that on the night of the incident the three appellants went armed with weapons to the tubewell of the deceased where the latter was sleeping to guard his wheat stacked in bags. Gurmej Singh was armed with a rifle, Gian Singh was armed with Gandasi and Bur Singh carried a Dang. The prosecution alleged that Gurmej Singh had concealed the rifle in the Chadar wrapped around him and on reaching the place where the deceased was sleeping on a cot he threw off the chadar and shot the deceased at point blank range. The incident was witnessed by three persons. P.W. 2 . Swaran Singh, nephew of the deceased, P.W. 3 Fauja Singh, a close relative of the deceased and one Narain Singh (not examined) who too were sleeping in the field. Actually Narain Singh was sleeping near the deceased whereas P.Ws. 2 and 3 were sleeping at distance of approximately 10/ 15 karams therefrom. The prosecution did not examine Narain Singh on the plea that he was won over. The evidence of P.Ws. 2 and 3 shows that they got up on hearing some movement in the field and they saw the three appellants near the cot of the deceased. They were able to identify them because of the existence of an electric light at the tubewell. According to them on reaching near the cot of the deceased Gurmej Singh fired a shot from close range at the deceased who was still sleeping in his cot. Thereafter Gian Singh struck a Gandasi blow on the chest of the deceased followed by a Dang blow on the right arm by.Bur Singh. Gurmej Singh is stated to have warned others not to get up unless they wanted to be killed. On account of this warning P.Ws. 2 and 3 did not run to the rescue of the deceased for fear of being killed. After making sure that their victim was dead, the appellants fled away. P.W. 2 Swaran Singh then went to the house of his father P.W. 4 Waryam Singh and narrated the incident. P.W. 2 accompanied by Gurdas Singh, Lambardar, then went to the Police Station at about 8.30 a.m. on 7th June, 1976 and lodged the first information report. P.W. 8 Sub-Inspector Kartar Chand Singh then reached the place of occurrence, held on inquest on the dead body of the deceased, lifted the blood stained earth from the place of occurrence and then recorded the statements of P.W. 3 Fauja Singh, Narain Singh and others. Gian Singh and Bur Singh were arrested on 2nd July, 1976 while Gurmej Singh was arrested on 7th July, 1976. It appears that two more persons, namely, Sucha Singh and Santokh Singh (original accused Nos. 1 and 4, respectively) were also shown. as arrested for the commission of this crime on 2nd July, 1976 although their names were not disclosed in the first information report. The allegation of the prosecution witnesses P.Ws. 2, 3 and 4 is that these two persons were falsely involved as P.W. 8 Sub-Inpector Kartar Chand Singh wanted to save his skin as he was found to have illegally and wrongly detained them at the police station. We will deal with this aspect later but suffice it to say that both the Courts below have come to the conclusion that they were falsely involved in the commission of this crime by fabricating statements of P.Ws. 2 and 3 under S. 161 of Criminal Procedure Code ('the Code' for short). In view of this conclusion reached by both the Courts, the said two persons'were acquitted. No appeal was preferred challenging their acquittal. The trial Court convicted Gurmej Singh under S. 302, I. P. C. and the other two under Ss. 302/ 34, I. P.C. and sentenced all the three to imprisonment for life and also imposed token fines. Against their conviction the present three appellants filed an appeal which was dismissed by a Division Bench of the High Court on 21st June, 1979. It is against this finding of guilt recorded by both the Courts below that the present three appellants have preferred this appeal by special leave.

(3.) Mr. Frank Anthony, counsel for the appellants, submitted that there were three eye-witnesses to the incident even according to the prosecution case and out of them Narain Singh was nearest to the deceased when the incident occurred on that dark night in the field. This Narain Singh alone was an independent witness and yet the prosecution did not examine him on the specious plea that he was won over. The other two eye-witnesses, P.Ws. 2 and 3, are admittedly close relatives of the deceased and out of them the presence of P.W. 3 is extremely doubtful being a resident of a nearby village. At any rate he can be termed as a chance witness and in all probability he came to the field from his village after learning about the incident. Besides, since the incident occurred on a dark night and the evidence that the electric light at the tubewell was on at that hour is extremely doubtful, it is difficult to believe that page No. Ws. 2 and 3 saw the actual incident from a distance of 10/ 15 karams and were able to identify the assailants. Said counsel, the conduct of both these eye-witnesses is not normal since they did not raise an alarm even though they depose to have woken up on hearing some movement in the field. They could have cautioned the deceased and Narain Singh about the entry of third parties in the field since they were there precisely for that purpose. They have tried to explain their unnatural conduct on the plea that the appellant Gurmej Singh had raised a 'lalkara' that anyone trying to come near the deceased would be killed. But this 'lalkara' was after the event and not before, while the conduct of the eye-witnesses before the incident is unnatural if they had actually got up on hearing some movement of third parties in the field. Else it must be accepted that they got up on hearing the gun fire and before they could go near the deceased, the assailants had fled away. In this situation the evidence of Narain Singh assumes importance as he was most competent to unfold the true version regarding the incident, being just by the side of the deceased at the time of the incident. The failure to call him to the witness stand was, counsel submitted, unfair to the defence as it deprived the defence of the opportunity to elicit the true version regarding the offence. Lastly he submitted that the prosecution has not placed any material on record nor has it stated any reason in its written report in support of its conclusion that he had been won over. In any event, it is hazardous to base a conviction on the highly interested testimony of P. Ws. 2 and 3, particularly when the motive alleged by the prosecution for implicating the appellants is very weak. Besides the evidence of P.Ws. 2 and 3 suffers from several infirmities.