Full Judgment Text
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PETITIONER:
MUKHTIAR SINGH AND ANR.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT04/01/1995
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
MUKHERJEE M.K. (J)
CITATION:
1995 AIR 686 1995 SCC (1) 760
JT 1995 (1) 531 1995 SCALE (1)56
ACT:
HEADNOTE:
JUDGMENT:
DR. ANAND, J.:
1. These two appeals under Section 14 of the Terrorists
Affected Areas (Special Court) Act,1984 arise out of a com-
mon judgment of the Special Court, Ferozepur dated
19.4.1985. While Criminal Appeal No.434 of 1985 has been
filed by Mukhtiar Singh and Jasbir Sing challenging their
conviction and sentence, Criminal Appeal No.489 of 1985 has
been filed by the complainant, Sohan Lal and is directed
against the acquittal of the acquitted co-accused of
Mukhtiar Singh.
2. 11 accused persons were put up for trial before the
learned judge of the Special Court, Ferozepur for offense
under Section 25 of the Arms Act. The trial Court convicted
Mukhtiar Singh son of Kartar Singh for offences under
Section 302/34, 397/34, 460 IPC and Section 25 Arms Act and
Jasbir Singh for offences under Section 302/34,337/34 and
460 IPC. Hazara Singh was convicted for an offence under
Section 25 of the Arms Act while Jagrup Singh for offences
under Section 411 IPC and 25 of the Arms Act. The remaining
accused were acquitted of all the charges.
3. According to the prosecution case, on 10.6.1984 when
Sohan Lal, PW5 father of the deceased Jajpal Singh was
watching television alongwith his other family members, on
hearing the firing of 8 or 9 shots, he came out on to the
courtyard and saw two persons standing near his son, Jajpal
Singh, deceased. One of them was armed with a gandasa while
the other had a pistol in his hand. The person who was
armed with a gandasa in the presence of PW5, inflicted some
injuries on Jajpal Singh while the other person took away
the 12 bore DBBL gun belonging to Sohan Lal, PW5 which was
lying near the cot in the courtyard where Jajpal Singh was
sitting. Sohan Lal, PW5 also noticed some 8 or 10 persons
standing at a distance in the darkness. On hearing noise,
the assailants as well as the other 8/10 persons ran away.
Finding Jajpal Singh in a seriously injured condition, Sohan
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Lal, PW5 removed him to the Mission Hospital, Ferozepur.
Dr. A.S. Mann, Emergency Medical Officer sent information to
the police regarding the arrival of Jajpal Singh in an
injured condition at the hospital. On receipt of telephonic
information, Ratan Singh, SHO, police station Mallanwala
proceeded to the hospital. In the meanwhile, it appears
Jajpal Singh succumbed to his injuries. Statement of PW5,
Sohan Lal was recorded by Ratan Singh, PW9 on reaching the
hospital and that statement, Ex. P9, forms the basis of the
FIR Ex.P-9/B. After conducting the inquest proceedings and
preparing the inquest report, Ex.P-2, the dead body of
Jajpal Singh was sent for postmortem examination by SHO
Ratan Singh, PW9. Further investigation was taken in hand
and the place of occurrence was inspected and its rough site
plan prepared. During inspection of the place of occurrence
some empties which were found lying in the courtyard of the
house of PW5 were collected besides the blood stained earth
Sealed parcels were prepared of the empties and the blood
stained earth and the same were deposited in the police
Malkhana and later sent to Forensic Science Laboratory and
chemical examiner respectively.
4.Dr. Jaspal Singh, Emergency Medical Officer, Civil
Hospital, Ferozepur performed autopsy on the dead body of
Jajpal
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Singh on One 11, 1984 at 10.00 a.m. He found the following
injuries:
(i) Incised wound 20 cms x 3cms x 3cms at
the middle of the frontal region oblique in
direction near the hairline with clotted blood
present. On dissection the underlying bone
was found cut completely. Extradural and
subdural haemotoma was present and the brain
matter visible.
(ii) Incised wound 14 cms x 2cms just 2 cms
below injury No. 1 with clotted blood and
underlying bone cut completely. Extra dural
and subdural haemotoma was present. The brain
matter was visible.
(iii)Lacerated punctured wound with inverted
and contused margins, dimensions being 0.75 x
0.5 cm at the right side of the abdomen in
middle with clotted blood present
(iv) Lacerated punctured wound with everted
margins 3 cms x 2-1/2 cms on the left side of
the chest middle with clotted blood. On
dissection under injuries No.3 & 4 the track
was after performing the intestine going
upward and towards left side entering the
thorax and impairing the left lung lower part.
Injuries No. 3 & 4 communicating with each
other. The abdominal cavity was full of
clotted blood. The ribs under injury No. 3
was the wound of enterance and injury No. 4
the wound of exit. There was clotted blood
along the track.
(v) Terminal 1/4 parts of the index, middle
and ring finger of the right hand were found
amputated with the margins of the wound
incised. Level was in one line. Clotted
blood was present.
(vi) Lacerated punctured wound with inverted
and contused margins 0.75 cm x 0.5 cm at the
outer surface of the right angle. On
dissection the underlying bone was found
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fractured. A bullet was taken out from the
wound which was seized. Clotted blood was
present.
(vii)Lacerated punctured wound with inverted
and contused margins, dimensions being 0.75
cmx 0.5 cm at the outer and the middle of the
left upper arm with clotted blood present. On
dissection the underlying bone was found
fractured. A bullet was extracted from the
wound which was seized.
(viii)Grazed lacerated wound in the form of
furrow 10 cms x 1-1/2 cms superficial on the
left fore-arm, oblique in direction.
5. In the opinion of the doctor, death was caused due to
shock and haemorrhage as a result of multiple injuries which
were sufficient in the ordinary course of nature to cause
death. Dr. Jaspal Singh also opined that injuries No. 3 & 4
were the result of one shot while injuries No. 6 & 7 were
the result of two shots. During the postmortem examination
two bullets MO-1 and Mo-2, were taken out from the dead body
and the same were taken into possession by the police vide
Memo Ex.P32. Various recoveries were effected front the
accused persons after their arrest on different dates by the
police.
6. The prosecution examined Dr. Jaspal Singh, PW1, Dr.
A.S. Mann, PW2, Shri Bhupinder Singh, PW3, Shri Sunder
Singh, PW4, Sohan Lal, PW5, Kashmiri Lai, PW6, Shri Jamail
Singh, PW7, Shri Harcharan Singh, PW8 and Shri Ratan Singh
PW9. Some affidavits of police officials whose evidence was
of a formal character were admitted into evidence and placed
on record. After close of the prosecution evidence, the
accused were examined under Section 313 Cr.P.C. They denied
the prosecution allegations against
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them and alleged false implication. They, however, did not
lead any evidence in defence.
7. The trial Court acquitted Surjit Singh observing in
paragraph 28:
"The learned Public Prosecutor in fairness to
the Court and the defence frankly conceded at
the Bar that there was no evidence on the
record to connect Surjit Singh with the crime.
The charge against Surjit Singh accused was
that he had conspired with his co-accused.
The witness in that connection was Dwarka Dass
who had refused to support the prosecution.
As such the case of the prosecution fails
against Surjit Singh accused for want of
evidence. Surjit Singh accused is acquitted."
8. The Trial court also acquitted Satnam Singh, Sukhdev
Singh, Sucha Singh, Kulwant Singh and Jagir Singh accused.
Paragraph 29 deals with their acquittal:
Satnam Singh, Sukhdev Singh, Sucha Singh,
Kulwant Singh and Jagir Singh accused were
arrested in this case. The statement of
Kashmiri Lai (PW6) brother of Sohan Lai (PW5)
is that he had seen the aforesaid accused
proceeding towards the village abadi.
Thereafter there were reports of firing and he
saw them running away from the village abadi
towards the fields but from this circumstance
alone I cannot spell out their criminality.
Accordingly 1 acquit Satnam Singh, Sukhdev
Singh Sucha Singh, Kulwant Singh and Jagir
Singh accused."
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9. The conviction of Jagrup Singh and Hazara Singh for the
various offences as noticed above, was recorded, in
paragraph 30 thus:
"Sohan Lal (PW5) at the trial on oath stated
that Jasbir Singh accused had given gandassa
blows and Mukhtiar Singh had taken away the
gun. The gun was subsequently recovered from
Jagroop Singh accused in pursuance of his
disclosure statement Exh.P-23. The gun is Exh.
M.O. 3 which is the licensed gun of Sohan Lal
(PW5). In as much as the gun was taken away
from the spot by Mukhtiar Singh. Jagroop
Singh would be liable criminally under Section
411 of the Penal Code and under Section 25 of
the Arms Act. The only evidence against
Hazara Singh accused is that he was arrested
by Shri Harcharan Singh Assistant Sub
Inspector and his search brought out pistol.
315 bore Exh. M.O. 4 and two cartridges Exh.
M.0.5 and M.0.6 for which he had to licence.
Hazara Singh accused has to be convicted under
Section 25 of the Arms Act."
10. The learned judge of the Special Court then proceeded to
consider the case of the prosecution against Mukhtiar Singh
and Jasbir Singh, appellants. The discussion in that behalf
is found in paras 31 and 32 of the judgment which read thus:
"The two empties recovered from the spot were
found to have been Bred from the pistol of
Jasbir Singh and two from the revolver of
Mukhtiar Singh accused. The Supreme Court in
the case of Bhura 1985 Supreme Court Cases
(Criminal) 33 in similar circumstances had
held the accused guilty setting aside their
acquital by the High Court.
Jasbir Singh and Mukhtiar Singh accused at the
time of their arrest were directed to keep
their faces muffled and they refused to
participate in the identification parade on
the ground that they had been shown to the
witness of the prosecution for which there is
not an iota of
536
evidence. Both the accused had committed a
tress pass and there were fire-arm injuries on
the body of Jajpal. Their act of taking away
the gun would make them criminal liable under
section 397 r/w section 34 of the Penal Code
and they would also be liable under the Arms
Act."
11.After recording these findings, both Mukhtaiar Singh and
Jasbir Singh were convicted for various offences as noticed
above and sentenced.
12.We have through the judgment of the learned trial judge
and find that the same is far from satisfactory. Both, the
order of acquittal as well as the order of conviction, have
been made by the Trial Court in a most perfunctory manner
without even noticing much less, considering and discussing
the evidence led by the prosecution or the arguments raised
at the bar. The trial court noticed the prosecution case,
the medical evidence and material collected during the
investigation of the case besides the arrest of different
accused persons on different dates in paras 1 to 23 of the
judgment. In paragraph 24 it noticed the names of the
prosecution witnesses and in paragraphs 25 and 26 it noticed
the names of the fact that the accused had been examined
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under Section 313 Cr.P.C. It was in paragraphs 28 to 32,
noticed above, that the orders of acquittal and conviction
we mad, The Trial Court was dealing with a serious case of
murder. It was expected of it to notice and scrutinize the
evidence and after considering the submissions raised at the
bar arrive at appropriate findings. In vain have we
searched through the cryptic judgment of the Trial court the
reasons which prevailed with it to acquit the respondents in
Criminal Appeal No. 489 of 1985 or convict the appellants in
Criminal Appeal No. 434 of 1985. On the plainest
requirement of justice and fair trial the least that was
expected of the trial court was to notice, consider and
discuss, howsoever briefly, the evidence of various
witnesses as well as the arguments addressed at the bar.
The Trial Court has not done so. The Trial Court apparently
failed in the discharge of its essential duties. There is
no mention in the judgment as to what various witnesses
deposed at the trial except for the evidence of the medical
witness. The judgment does not disclose as to what was
argued before it on behalf of the prosecution and the
defence. The judgment is so infirm that we are unable to
appreciate as to how the findings were arrived at. The
judgment at the trial court is truly speaking not a judgment
in the eye of law. The trial court appears to have been
blissfully ignorant of the requirements of Section 354(1)
(b) Cr.P.C. Since, the first appeal lay to this court, the
trial court should have reproduced and discussed atleast the
essential parts of the evidence of the witnesses besides
recording the submissions made at the bar to enable the
appellate court to know the basis on which the ’decision’ is
based. A ’decision’ does not merely mean the "conclusion"
it embraces within its fold the reasons which form the basis
for arriving at the "conclusions." The judgment of the Trial
Court contains on, "conclusions" and nothing more. The
judgment of the trial court cannot, therefore, be sustained.
The case needs to be remanded to the Trial Court for its
fresh disposal by writing a fresh judgment in accordance
with law.
13.We are conscious of the fact that the occurrence took
place more than a decade ago and the conviction was recorded
almost 9 years ago. But, looking to the
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manner in which the judgment has been rendered by the Trial
Court, it appears appropriate to us to remand case to the
Trial Court for writing a fresh judgment, after providing
opportunities of hearing to both the parties, on the basis
of the material which is already on the record. We could
have undertaken the exercise ourselves and analysed the
evidence to determine the guilt or otherwise of the accused
persons but we are of the opinion that our doing so may
prejudice one or the other party as it would deprive the
concerned party of its right of first appeal to this court.
We have, therefore, considered it proper, after setting
aside the judgment under appeal, to remand the case to the
Trial Court for its fresh disposal in the light of the
observations made by us above.
14.The appellants Mukhtiar Singh and Jasbir Singh were
directed to be released on bail during the pendency of the
appeal in this court by an order of the leaned judge in
chambers dated 19.7.1990. We do not consider it appropriate
to cancel the bail during the fresh hearing of the case by
the Trial Court but we direct that they shall remain present
before the Trial Court during the hearing of the case and in
the event of their being found guilty, they shall be
remanded to custody. In case they or either of them does
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not appear before the Trial Court during the hearing,
their/his bail shall stand cancelled and they shall be taken
into custody till the conclusion of the hearing by the Trial
Court. The respondents in Criminal Appeal No. 489/ 85 shall
also remain present during hearing of the case before the
Trial Court and continue to remain on bail till the hearing
of the case. The absence of either of the respondents in
the Trial Court shall result in the cancellation of
his/their bail and he/ they shall be taken into custody till
the conclusion of the hearing by the Trial Court. In case
of conviction of any of the accused persons, the sentence
already undergone by them as well as the period of detention
before and during the trial shall set off against the period
of sentence.
15.Since, it is an old case, we direct the Trial Court
(judge, Special Court, (sessions judge) - Ferozepur) to fix
an early date for the hearing of the case and dispose it of
on merits expeditiously preferably within a period of three
months from the date of the communication of this order.
16.Since, we are remanding the case for writing a fresh
judgment by the Trial Court after hearing the parties in the
light of the observations made by us, we clarify that we
have not expressed any opinion regarding the merits of the
case and nothing said by us hereinabove shall be construed
expressly or impliedly as any opinion on the merits of the
case.
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