JAGAR SINGH Vs. STATE

JUDGEMENT

(1.) Jagar Singh Appellant Was tried for the murder of Kahan Singh and sentenced to death. He has appealed against his conviction and sentence. There is also a reference before us Under Section 374, Code of Criminal Procedure for the confirmation of death sentence. This judgment will dispose of the appeal as well as the reference.

(2.) The prosecution case is that Mastan Singh, the brother of Kahan Singh deceased, his wife, Mst. Sham Kaur, Dhanna Singh his nephew and Dhanna Singh's wife Mst. Harnam Kaur were returning from their fields at about 6-7 P. M. on 6-10-46. The present Appellants along with Kundan Singh, Bachan Singh, Labh Singh and Jang Singh were standing in the lane. The Appellant and Kundan Singh were armed with spears, Bachan was armed with a gandasi, Labh with a lathi and Jang Singh with a pistol. Jang Singh shouted that Dhanna Singh should not be allowed to go. On hearing this Dhanna Singh and his wife Mst. Harnam Kaur rushed into their house and closed the shutters from inside. Kahan Singh deceased uncle of Dhanna Singh intervened and asked the accused not to kill Dhanna Singh. He was first assaulted by the present Appellant immediately followed by his companions who inflicted injuries on his person with their respective weapons. Out of them Jang Singh merely kept on shouting end did not open fire with the pistol in his possession. The accused he ran away from the spot. Kahan Singh was moved into the house of Dhanna Singh, Mastan Singh then brought Lambdar Karoal Singh and Ors. before whom Kahan Singh made a statement regarding the incident. The same night at 3-30 A.M. Mastan Singh made a report of the occurrence at police station Dhanaula situate at a distance of 5 'Kose' from the spot. Having registered a case the investigating officer came to the spot and conducted the investigation. He sent the dead body for post-mortem "examination. Dr. Ujgar Sain performed the postmortem examination on 21-6-2003 at 2-30 P.M. and found the following injuries on the person of Kahan Singh.

(3.) The case of the prosecution mainly depends on the testimony "of Mastan Singh and vDhanna Singh, the brother and the nephew res "reactively of the deceased, Sham Kaur his ; widow and that of Hakam Singh. Out of these -witnesses Dhanna Singh, Mastan Singh and Hakam Singh did not support the case as narrated above during the trial. There are clear indications on the record that they have been won over by the Appellant or his relations. At -the same time the fact that they are close relations of the deceased cannot be lost sight of. ' "Mastan Singh deposed that the assault on the ' deceased in fact did not take placa in his presence. He was the last to arrive from the ; fields and when he came he found the deceased lying injured. He, however, deposed that the Appellant and his companions were still present in the lane. He even refused to identify the Appellant during the trial on account of bad eye-sight. He could not say if the Appellant was tae same Jaggar Singh who was present in the lane. To cut it short he deposed that the name of the Appellant was given, by him in the F, I. R. on account of enmity and this was done after consultation between, the members of the- family including Dhanna Singh and Sham Kaur P. Ws. He was confronted with his previous statement made during the commitment proceedings and trial of the companions oi! the Appellant. The witness admitted having made those statements but stated that they were not true. The witness, therefore, is condemned from his own mouth. During the trial the public prosecutor made an application requesting the Court to transfer the statement made by the witness before that C. M. to his own file.. This was done. It is conceded by the learned Counsel appearing for the State ' that this statement also does not help the prosecution. Apart from this the statement itself is, in my opinion, not admissible in evidence. I will have an occasion to deal with this point in the later part of the judgment. Like Mastan Singh, Dhanna Singh the nephew of the deceased deposed during the trial that he shut himself inside his house and 'did not see the assault on the deceased. The Public Prosecutor was permitted to cross-examine this witness also. He was confronted with his previous statements made during the commitment proceedings and the trial of the companions of the accused. He admitted having made those statements but explained that they were given at the instance of other persons. Ultimately the witness admitted that the statement against the present Appellant was made by him at the instance of one Bakhshi at the pain of death. Hakam Singh, the third witness also made a every prevaricating statement. He could not say where this occurrence had taken place and who inflicted the injuries on the persons of the deceased, According to his testimony on hearing noise he shut himself inside his house. He was also confronted with some previous statements. He admitted enmity with the present Appellant and then stated that, he had only identified him by voice. Ha could only see the figures and could not identify from a distance where the Appellant and his companions were standing as there was insufficient light to identify. The statement of this witness made before the C. M. was transferred Under Section 288, Code of Criminal Procedure at the request of the Public Prosecutor but this statement, as conceded by the learned Counsel for the Slate, does not help the prosecution. According to the evidence given before the C.M. the witness did not see any weapon in the hands of the Appellant or his companions nor he saw the assault on the deceased. So I cannot understand why the learned public prosecutor was keen to have this statement transferred to the record of the trial Court.