TEHAL SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Tehal Singh was convicted under Section 302, Indian Penal Code on three counts and sentenced to death by the learned Sessions Judge, Faridkot. His brothers Darshan Singh and Gurmal Singh were convicted under Section 302 read with Section 34, Indian Penal Code and sentenced to suffer imprisonment for life. Bhal Singh was also convicted under Section 27 of the Arms Act and sentenced to suffer imprisonment for three years. The convictions and sentences were confirmed by the High Court of Punjab and Haryana. Tehal Singh, Darshan Singh and Gurmel Singh have appealed to this Court by special leave. Chiman Lal and Murari Lal who were also tried with the three appellants for an offence under Section 302 read with Section 120-B of the Indian Penal Code were acquitted by the learned Sessions Judge. There was no appeal to the High Court against their acquittal.

(2.) The brief case of the prosecution was as follows:There was some rivalry between Chiman Lal and Murari Lal who were transport operators on one side and Prithi Singh and Harmal Singh, who were also transport operators on the other side. One 22nd August, 1976, Pirthi Singh, his brother Harmel Singh. Mithu Singh and Hardip Singh the son of Pirthi Singh a boy aged 13 years were returning to their village Giddarbaha from Hussaner in their truck. They met Darshan Singh near the outskirts of Hussaner Chowk. Pirthi Singh questioned Darshan Singh as to why he had threatened the Munshi of their Truck Union. There was an exchange of abuse, Pirthi Singh also slapped Darshan Singh. Darshan Singh left the scene in a vengeful mood. Pirthi Singh, Mithu Singh, Harmel Singh and Hardip Singh then proceeded to the premises of the agency of Parma Nand. While they were sitting there, at about 8 p.m. Chhota Singh came there and informed them that when he had gone to the agency of Chiman Lal to hire a truck, sometime earlier he had heard Chiman Lal and Murari Lal telling Tehal Singh, Darshan Singh and Gurmel Singh, that they should finish off Pirthi Singh. Within a few minutes after Chhota Singh informed Pirthi Singh and others about the conversation at Chiman Lal's agency. Tehal Singh, Darshan Singh and Gurmel Singh arrived at Parma Nand's agency in a truck. Tehal Singh was armed with a double-barreled gun while Darshan Singh and Gurmel Singh were armed the iron rods. Straightway Darshan Singh challenged Pirthi Singh and said he would be taught a lesson. Tehal Singh fired a shot which hit Pirthi Singh on the right shoulder, felling him to the ground. Darshan Singh beat the fallen Pirthi Singh three or four times with the iron rod which he had with him. Mithu Singh tried to intervene when Tehal Singh shot at him and killed him instantaneously. Harmel Singh came forward and he too was shot at by Tehal Singh on the right knee. He stumbled over a few paces and fell down when Darshan Singh and Gurmel Singh assaulted him with iron rods which were with them. Tehal Singh then fired a shot into the air and thereafter all the assailants drove away in their truck. Pirthi Singh and Harmel Singh who were both seriously injured were taken to the Hospital at Giddarbaha by Chhota Singh, Hardip Singh and others who had come there after the occurrence. Pirthi Singh died on the way. It was 10.15 p.m. when Harmel Singh was taken to the Hospital, Dr. Pasricha, the Medical Officer In-charge of the Hospital sent a report to the Police Post at 10.20 p.m. Kulwant Singh, Head Constable who was in-charge of the police post reached the Hospital at 10.40 p.m. and after inquiring whether Harmel Singh was in a fit condition to make a statement, he proceeded to record the statement of Harmel Singh. The statement was recorded in the presence of Dr. Pasricha who appended a certificate to the effect that the statement was recorded in his presence and that Harmel Singh was in full possession of his senses throughout. The statement was sent to the Police Station Kot Bhai where the First Information Report was registered. On the advice of Dr. Pasricha Harmel Singh was taken to the Civil Hospital, Bhatinda for better treatment Chhota Singh, Hardip Singh and others took Harmel Singh to Bhatinda but before they reached Bhatinda Harmel Singh died at about 1.30 A.M. Chhota Singh and Hardip Singh returned to Giddarbaha at about 6 A.M. Meanwhile Baldev Singh, Sub-Inspector of Police, Kot Bhai arranged to dispatch the First Information Report to the Judicial Magistrate. The Judicial Magistrate received the report at 6.45 A. M. Baldev Singh reached the Hospital at about 1.45 A.M. and took over the investigation from Kulwant Singh. He held the inquests and recovered four empty cartridges, bloodstained earth etc. from the scene of occurrence. He examined Chhota Singh and Hardip Singh next morning at 9 a.m. and 10 a.m. After completing the investigation a charge-sheet was laid against the five accused persons. Pirthi Singh surrendered himself before the Magistrate along with a. 16 bore gun on 25th August, 1976. The post mortem examination over the body of Pirthi Singh revealed one gun shot wound and five contusions. The post mortem examination over the body of Mithu Singh revealed two gun shot wounds being the entry and exit wounds. The post mortem examination over the body of Harmel Singh revealed four lacerated wounds which were caused by blunt weapon and three pellet wounds. The plea of the accused was one of total denial. It was suggested to the prosecution witnesses on behalf of the accused that the dying declaration was a later fabrication and that neither Chhota Singh nor Hardip Singh had witnessed the occurrence. It was suggested that the case was foisted against the accused by the witnesses who were relations of the deceased with the help of Sub-Inspector Baldev Singh who was also related to the deceased.

(3.) The learned Sessions Judge accepted the evidence of Hardip Singh and the dying declaration but was not prepared to act upon the evidence of Chhota Singh. He, therefore, acquitted Chiman Lal and Murari Lal and convicted Tehal Singh, Darshan Singh and Gurmel Singh as mentioned earlier. The High Court also accepted the evidence of Hardip Singh and the dying declaration. The High Court was further of the view that the evidence of Chhota Singh in regard to the main occurrence was also acceptable. The convictions and the sentences passed on the appellants were confirmed. In this appeal by special leave Dr. Chitaley learned counsel for the appellants argued that the dying declaration was a later fabrication, brought into existence after the arrival of Baldev Singh on the scene. He submitted that the very wealth of detail contained in the dying declaration gave an indication that it was not the statement of the dying man. He invited our attention to the evidence of the Medical Officer and urged that Harmel Singh would not have been in a position to make the statement attributed to him. He also argued that the dying declaration was not recorded in the words of the deceased but "in his own way" by Kulwant Singh and, therefore, it was not entitled to any weight. It was also not entitled to weight as it was not made in expectation of death. In regard to the evidence of Hardip Singh, Dr. Chitaley submitted that he was a child witness and, therefore, his evidence could not be readily accepted without corroboration. He was closely related to the deceased and was interested in implicating the accused. The learned Counsel also commented on the delay in the examination of the witness by the Investigating Officer. The learned Counsel submitted that the evidence of Chhota Singh was entirely unworthy of credit and that he was introduced into the case solely with the object of implicating Chiman Lal and Murari Lal.