DHANAJ SINGH ALIAS SHERA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) There are some unusual cases when the complainant himself is treated as an accused and made to suffer a trial. The present appeal is a case of that nature. But the persons against whom he made accusations subsequently faced trial, and are the accused so far as the present appeal is concerned. The appellants have been convicted for offence punishable under S. 302 read with S. 34 of the Indian Penal Code, 1860 (in short the "IPC") and sentenced to undergo imprisonment for life and a fine of Rs.1,000/- with default stipulation. The conviction made and the sentence imposed by the Additional District and Sessions Judge, Bhatinda were confirmed by the impugned judgment by a Division Bench of the Punjab and Haryana High Court.

(2.) The prosecution version as unfolded during trial is as follows : The present three appellants along with Jagrup Singh and Nachhattar Singh faced trial for alleged commission of murder of one Sukhmander Singh (hereinafter referred to as the "deceased"). The five accused persons including two who had been acquitted, i.e. Jagrup Singh Nachhattar Singh were charge-sheeted for allegedly hatching a conspiracy for committing the murder of deceased-Sukhmander Singh, thereby committing the offence punishable under S. 120-B, I.P.C., and in furtherance of their common intention caused the death of deceased with fire-arms and thereby committing offence punishable under S. 302 read with S. 34, I.P.C. The First Information Report was lodged on 21-10-1995 by Sukhdev Singh (P.W. 2) stating that while he and his nephew Bikramjit Singh alias Butta Singh (P.W. 3) and the deceased had gone to plough the land, suddenly the accused persons armed with firearms reached the spot of occurrence and raised lalkara that they would teach a lesson to the complainant party for committing the murder of their relations. All the three appellants chased the deceased and fired three shots. The complainant (P.W. 2) and Bikramjit Singh (P.W. 3) ran away towards village. After committing the murder the accused persons went towards the village with their weapons. After they departed, P.Ws. 2 and 3 went to the spot of the occurrence to ascertain the fate of the deceased and found that he had already died. Leaving P.W. 3 to guard the dead body, P.W. 2 reported the matter to his brother Ranjit Singh, the Sarpanch. While he and Ranjit Singh were proceeding to the police station, on the way they found police party headed by Mukhtiar Singh (P.W. 6) and reported the matter to him. The occurrence took place around 11.00 a.m. and the First Information Report was recorded at 4.30 p.m. and was sent to the Area Magistrate at a distance of about 20 kms. from the police station and was received by him at 8.40 p.m. It was indicated that the motive of the crime was certain killings where the deceased and family members of P.Ws. 2 and 3 were involved and with a view to take revenge the murder took place. Investigation started in the line as reflected in the FIR, but strangely the police took a view and proceeded as if P.Ws. 2 and 3 were the murderers and had falsely implicated the accused persons. Accordingly they challaned them for trial, but they were acquitted. In the meantime, a complaint was filed by Sukhdev Singh (P.W. 2) in the Court of Chief Judicial Magistrate, Bhatinda alleging that Investigating Officer had yielded to political pressure and had made out a case as if the complainant was the murderer. The trial Court considering the evidence on record, found the accused persons guilty. The High Court by the impugned judgment upheld the conviction and found several disturbing features as to how I.O. had made out a new case to save the accused persons and implicate the complainant party.

(3.) In support of the appeal, learned Senior Counsel submitted that both the trial Court and the High Court have lost sight of the actual scenario, and have erroneously come to hold the accused persons guilty. On the highly tainted evidence of P.Ws. 2 and 3 the conviction should not have been done. When the police after thorough investigation had concluded that it was the complainant party which caused the death of the deceased-Dr. S. K. Rajkumar (P.W. 1) had stated that pellets were recovered; but they were not sent for test by Ballistic Expert. Weapons were stated to have been recovered pursuant to the information given in terms of S. 27 of the Indian Evidence Act, 1872 (in short the "Evidence Act"). That is really of no consequence because the discovery statement does not show any incriminating statement. It only says that the guns can be found at some place. The complaint is bald and even the relevant details have not been given, though in evidence it has been stated as to the type of gun that was used, both the trial Court and the High Court have noted that they were not sent for chemical test. Many persons who could have thrown light on the incident have not been examined. No footprints were found. The pellets, wads and cartridges were not recovered from the spot. Merely because the FIR was lodged very promptly, the trial Court and the High Court should not have termed a highly exaggerated and manipulated version to be truthful. The ballistic examination should have been done to find out whether the guns allegedly produced were in fact used. Failure of P.W. 6 to even smell the guns to find out whether they were recently used provides the foundation for doubt. As the blood-stained earth was not sent for chemical examination, the situs of assaults has not been established. The guns were also not sent for ballistic examination. Such examination would have provided authenticity of the fire-arms purported to have been used. The evidence of P.Ws. 2 and 3 being that of highly interested and inimical persons should have been discarded.