SANTOKH SINGH Vs. STATE

JUDGEMENT

(1.) The appellant, Santokh Singh, an octogenarian (89 years old), has been awarded capital punishment by the learned Ist Additional Sessions Judge, Jammu for murdering two young real brothers who were his nephews.

(2.) The genesis of the incident is the internecine quarrel which took place on 27-5-1954 (43 years ago). On a trivial incident regarding the non-payment of a paltry amount of Rs. 5/-, the deceased Kahan Singh and Chain Singh were brutally done to death. The prosecution case is that the deceased Kahan Singh owed Rs. 5/- to one Lalman- a shopkeeper of the town of Samba. On Jeth 15, 2011 Bikrmi i.e. on the day of occurrence, the said Lalman came to the house of the deceased Kahan Singh and demanded the payment of the debt of Rs. 5/-. Kahan Singh pleaded the liquidation of the debt by stating that he had made the payment through the appellant but the said creditor denied its receipt. For verification, contesting parties called the appellant on the spot who admitted the receipt of Rs. 7/- from Kahan Singh but showed that the amount was given for making purchases of tabacoo and cigarette from the bazar for him. Deceased Kahan Singh admitted the receipt of only one packet of cigarette from him in lieu of this sum of money and claimed the balance amount. The heated arguments gave rise to frayed tempers. Deceased Kahan Singh went into bellicose mood and he violently pushed the appellant who fell on the ground. He also hurled a volley of abuses on him. Abhey Singh (brother of the deceased Kahan Singh) emerged on the spot and with his intervention, the waring parties were separated. The other brother of the deceased namely, Talab Singh also reached the spot who held out an olive branch as he made payment of rupees five from his own pocket to the creditor Lalman and bade him goodbye. The deceased Kahan Singh was constructing a house and needed timber. After some-time, he in the company of his brother Chain Singh set out to their fields to fetch the same on the back of their camel. The appellant could not bear with the insult and was smarting under humiliation. He resolved to take revenge and came out from his house after arming himself with a 303 gun. He waylaid the deceased by camouflaging himself under "Phly" Tree and when the deceased reached within the firing range of his gun, he opened the fire. The first fire was aimed at Chain Singh who was hit in the chest and he fell down stone dead. The second fire of the gun was made at Kahan Singh who received the injury in his stomach and fell down in a pool of blood. The occurrence was witnessed by Jagdish Singh and Parveen Singh. The latter informed Talab Singh (brother of the deceased) about the incident who in the company of Jagdish Singh immediately went to the spot and lifted Kahan Singh who was gasping for breath. He was brought to home where he succumbed to the injury within 3/4 hour. He had made dying declaration which implicated the appellant. Prosecution witnesses namely, Abhey Singh (brother of the deceased) and Gunjar Singh had also seen the appellant running from the spot when he was carrying the gun in his hands. He had held threat to do away with the life of Abhey Singh. On the same day. Thakara Singh and Chandu Chowkidar lodged an oral report of the incident in the Police Station, Samba whereunder, F.I.R. No. 7 of Samat 2011 case was registered for the commission of offence under Section 302, R.P.C. The appellant had absconded and in his absence final report for the commission of offence under Sec. 302, R.P.C. was submitted before Munsiff Magistrate First Class, Samba. He initiated proceedings under Sec. 512, Cr. P. C. against the appellant and in his absence recorded the statements of prosecution witnesses namely, Abhey Singh, Talab Singh, Surman, Chandu, Jagdish Singh, Gunjar Singh, Sarda Ram, Lalman, Ludermani, Dr. P. R. Prabhakar and Bakshi Dhan Raj, S. I. of Police. After appreciating the evidence, on 14-5-2011 (Bikrmi) the learned Munsiff Magistrate passed the committal order and held that the appellant had intentionally murdered the deceased. In the absence of the appellant, the case could not be committed to the Court of learned Sessions Judge but was consigned to the records. Non-bailable warrant of arrest was issued against him which remained in operation and could only be executed in the year 1987. On 3-8-87, the police produced the supplementary challan in the Court of learned Sub-Judge, JMIC, Samba who vide his order dated 3-9-87 committed the case to the Court of learned Sessions Judge, Jammu, who transferred the same to the Court of learned First Additional Sessions Judge, Jammu. The appellant was charged for the commission of offence under Sec. 302, R.P.C., the contents whereof were read over and explained to him. He pleaded not guilty and the prosecution examined Talab Singh, Sarda Ram, Dr. P. R. Parbhakar and Parveen Singh as prosecution witnesses. Kuldip Raj, Selection Grade Constable was also examined to prove the fact that the prosecution witnesses namely, Chandu Ram, Jagdish Singh, Abhey Singh and Gunjar Singh had died. The appellant, in defence examined Golay Ram, Dinku, Narsing Singh and Bishen Dass as his witnesses. The learned trial Judge has convicted the appellant under Section 302, R.P.C. and sentenced him to be hanged by neck till death. This judgment has been challenged on the following grounds :-

(3.) . Heard the arguments.