JOGINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) APPELLANT Joginder Singh, who was tried with his co-accused Samma Singh and Kala and has been convicted and sentenced under Section 302 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs. 2000/- and in default thereof to further undergo R.I. for six months, for having caused the murder of Kundan Singh, vide judgment recorded by Additional Sessions Judge, Amritsar, dated December 3, 1994, has filed the present appeal.

(2.) THE facts, leading to the death of Kundan Singh were brought to the notice of Dalbir Singh, ASI Police Station Verowal when on 10th of November, 1988, Kundan Singh's widow Charan Kaur lodged FIR against the appellant and his co- accused mentioned above. She stated that she was resident of village Bhail Dhaiwala. About 30-35 years ago, she was married with Kundan Singh but had no issue from this wedlock. She and her husband adopted one Lakha Singh, aged about 20 years son of her husband's brother Dalip Singh, who was working as labourer at Sirsa during those days. He was married and lived with his wife at Sirsa. On the previous evening at about 6 PM she was present in the house. It was a day of Diwali and in the evening Dalip Singh and Banta Singh, both of whom are younger brothers of her husband were talking with her husband Kundan Singh. Joginder Singh son of Kishan Singh caste Majhbi, resident of the village gave a call to her husband by his name. Kundan Singh her husband stepped forward to open the door, Dalip Singh and Banta Singh younger brothers of her husband followed him. When her husband opened the door, then Samma and Kala sons of Chanchal Singh residents of the village raised a lalkara in one voice saying, "Uncle what are you seeing now, kill him," Joginder Singh then fired two shots from his double barrel gun hitting on the back of her husband Kundan Singh when he was returning. Her husband fell down on the ground and succumbed to his injuries there and then. Joginder Singh was armed with gun whereas Samma and Kala were armed with dangs and they ran away from the spot while raising lalkaras and hurling abuses. The cause of quarrel was that many excise cases were pending against Joginder Singh in the Court at Tarn Taran. Kundan Singh her husband stood surety for him. Joginder Singh was absconding from the Court in those cases. Her husband was served with a notice by the court. Her husband was pressing Joginder Singh to appear in the Court in those cases and due to this grudge Joginder Singh armed with a gun and Samma and Kala armed with dangs having connived with each other had murdered her husband Kundan Singh. She did not go to lodge a report during night due to disturbed conditions and out of fear. After leaving behind Joginder Singh and Bagga Singh to safeguard dead body, she alongwith Dalip Singh was going to the police station to lodge a report when ASI Dalbir Singh met him. On receipt of the aforesaid information, a case was registered against the appellant and his co-accused and it is mentioned in the proceedings recorded by the police in the F.I.R. itself that the F.I.R. was recorded in the area of village Fatehabad near the garden of one Brigadier at 7.00 a.m. as also that Special Report was sent to the higher officials and that the control room was also being informed through wireless message. However, from the records it is not known whether special report was sent to the Magistrate or not or if sent, at what time. It further appears from the records of the case that the police after investigation did not find the appellant and his co-accused guilty of the crime but rather found one Sahib Singh to be guilty of having killed Kundan Singh against whom the police put up the challan. Since he was absconding, he could not be tried. Meanwhile, Charan Kaur widow of Kundan Singh tried to impress upon the investigating agency that the appellant and his co-accused were responsible for the murder of her husband and they alone should be challaned. When her entreaties did not bring any tangible results, she lodged a complaint in the Court on 12th of June, 1989. The Magistrate concerned recorded the preliminary evidence led by Charan Kaur and found sufficient grounds to proceed against all the three accused under Section 302 read with Section 34 of the Indian Penal Code for the murder of Kundan Singh and accordingly they were summoned vide order dated 6th of November, 1989. They were thereafter committed to the Court of Sessions to stand their trial. The State was arrayed as party through Charan Kaur complainant. As mentioned above, after the resultant trial whereas the co-accused of the appellant were acquitted by having them the benefit of doubt, the appellant alone was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo life imprisonment and to pay a fine as mentioned above.

(3.) WHEN examined under Section 313 of the Code of Criminal Procedure, appellant Joginder Singh only stated that he has been falsely involved in this case and the witnesses were deposing falsely against him. The appellant in defence exa.m.ined Moha.m.mad Mustafa, S.S.P., Gurdaspur as DW-1. He stated that on 10th of November, 1988 he was posted as ASP, Police Distt. Tarn Taran. He had seen the police file of this case and had supervised the investigation. During the investigation or supervision he had also visited village Bhail Dhaiwala and made enquiries from the villagers about the case. Many people from the village including members of the panchayat appeared before him during the investigation supervised by him. During the course of investigation of the case and on the basis of the enquiries made from the persons who had collected in the village at the time of his visit he ca.m.e to know that the persons na.m.ed in the F.I.R. were not the real culprits. Such enquiries revealed that the persons named in the F.I.R. had enmity with the complainant party and they were implicated in the case on that ground. During the course of investigation, Charan Kaur complainant, Banta Singh and Dalip Singh eye- witnesses were also examined by him and he found that none of them was witness of the alleged occurrence and they were false witnesses. His spot inspection also revealed that some Nihang of that village was involved in the murder of Kundan Singh. However, he did not remember the name of that Nihang. After consulting the police file the witness stated that Sahib Singh alias Sahiba was involved in the murder of Kundan Singh and he has directed the S.H.O. to arrest Sahib Singh. He had satisfied himself about the involvement of Sahib Singh in the crime. In cross-exa.m.ination this witness stated that there was one zimini in the police file dated 22nd of January, 1989 in which he found that Sahib Singh was involved in the murder and the alleged culprits in the F.I.R. were found to be innocent. There was no other zimini in the police file. He had visited in connection with the investigation of this case only once i.e. on 22nd of January, 1989 and neither before that nor after that. He had recorded the statements of Charan Kaur complaint and other witnesses. The witness further stated that the names of the members panchayat, sarpanch or other respectables who had collected at the spot at the time of his visit are not mentioned in the police zimini recorded by the police. He did not remember if the statements of Charan Kaur and other eye-witnesses were recorded by the investigator at the time of visit. Similarly he also did not remember whether he had recorded the na.m.es of the persons who had collected at the spot at the time of his visit nor did he remember whether he had recorded the statements of those witnesses or not. After checking the police file the witness further stated that there was no police zimini dated 22nd of January, 1989 made by the investigator regarding the examination of the persons who had collected at the spot at the time of his visit nor are the names of those persons mentioned by the Investigating Officer in any police zimini. He also stated that it was no where specifically mentioned in the police zimini dated 22nd of January, 1989 that Charan Kaur and other eye-witnesses had appeared before him in connection with the investigation of the case and were exa.m.ined. He also admitted that there was no specific mention in the police zimini that during his investigation the statements of Charan Kaur and other eye-witnesses were found to be false. He also stated that it was no where mentioned in the zimini that the appellant and his co-accused had any enmity with the complainant party. He also did not remember the na.m.es of the persons who had told him about the enmity between the complainant and the accused party. He also stated that on his visit when he had made the enquiries, he was satisfied about the innocence of the accused mentioned in the F.I.R. and there was, therefore, no necessity to show them innocent and that he was satisfied with the oral examination of the persons who had collected at the spot at the time of his visit. He admitted that before so opining that the accused named in the FIR were innocent, no further evidence regarding enmity between the parties was collected by the investigating officer or even afterwards.