BALMUKAND @ LAKHA Vs. STATE OF PUNJAB

JUDGEMENT

(1.) CRL . Appeal No. 504-DB of 1995 and Crl. Appeal No. 514-DB of 1996 are being disposed of together as these arise out of the following facts :

(2.) ON 25.9.1989, Prem Chand (deceased) was sleeping in the fields whereas his wife Neelam Rani (deceased), daughter Mamta aged 15 years and son Sanjiv Kumar, who was aged about 8 years, were sleeping in the Deodi of the house of in village Gharachon, when two persons wearing white shirts and trousers trespassed into the house at about 1.00 a.m. They demanded the keys of the cupboard from Neelam Rani but she told them that they were not with her. The two intruders the tried to remove the television set but could not do so. Neelam Rani ran out to call Prem Chand but she was shot at by one of the three persons who was armed with a shotgun. Prem Chand got up to rescue his wife but he, too, was shot dead. The three intruders then ran away from the spot firing from their guns into the fair. Sanjay Kumar, thereafter, climbed up to the roof top and raised an alarm, on which, Gurnam Singh, Hardial Singh and Virender Singh reached the spot and were told as to what had transpired. Sanjiv Kumar, accompanied by some of the Villagers thereafter left for Police Station, Bhawanigarh, but he met a police party headed by Sub-Inspector Teja Singh at the bus stand of the village and made his statement Exhibit PK to him at about 4.15 a.m on 25.9.1989 and, on its basis, the formal first information report was registered fifteen minutes later and the special report delivered to the Illaqa Village Magistrate at Sangrur at 9.30 a.m, the same morning. In the first information report, Sanjiv Kumar gave a description of the three assailants and stated that he could identify them if they were shown to him. On the completion of the investigation, a challan was filed against the two accused for an offence punishable under section 460 of the Indian Penal Code and as they pleaded not guilty, were brought to trial.

(3.) THE trial Court examined the matter and observed that the two eye- witnesses, though children, had stood the test of a lengthy cross-examination without blemish and, as the two murders had been committed in their residence, their presence at the spot was absolutely natural. The Court also observed that it had come in the prosecution evidence that the shots had been fired at the two deceased from a short distance and, as such, the blackening around the wounds of entry clearly supported that version. It was further held that the minor discrepancies in the evidence of the witnesses were to be ignored as their evidence had been recorded after a long lapse of time. The Court, however, noted that Hardial Singh (P.W. 8) who was also a witness of importance had been declared hostile and, as such, his evidence could not be relied upon. The Court also concluded that Inspector Teja Singh (P.W. 11) had recorded the first information report at the stipulated time and had also lifted the empty cartridge cases from the place of incident and also the foot moulds of the accused, but these two items could not be connected with the crime, as the weapons of offence had not been recovered and the foot moulds did not match with those taken before the Naib Tehsildar. The court also noted with regret that Inspector Gurdev Singh, who had conducted the investigation, had not appeared as a prosecution witness. The Court finally held that the accused had not been subjected to an identification parade, was of no consequence as it had been noted in the order of the Additional Chief Judicial Magistrate, Sangrur, dated 15.12.1989, exhibited as Exhibit C-1 in Court on the day of judgment, that the two accused had stated that they had not been willing to join an identification parade. The trial Court accordingly convicted the accused for the offence charged and sentenced them to undergo imprisonment for life and also to pay a fine Rs. 15,000/- each, and in default of payment thereof, to undergo further R.I., for one year each. Hence these appeals.