Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
CASE NO.:
Appeal (crl.) 477 of 2007
PETITIONER:
Dilbagh Singh
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 27/05/2008
BENCH:
S. B. Sinha & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
Reportable
Lokeshwar Singh Panta, J.
1. The appellant has filed this appeal under Section 19 of
the Terrorist and Disruptive Activities (Prevention) Act, 1987
against the final judgment and order dated 26.02.2007 passed
by the Additional Judge, Designated Court, Maximum Security
Jail, Nabha (Punjab) in Sessions Case No. 2 of 15.04.2004
whereby and whereunder the Designated Court convicted and
sentenced the appellant for offences punishable under Section
302/382 of the Indian Penal Code [for short \021the IPC\022] and
Section 5 of the Terrorists and Disruptive Activities
(Prevention) Act, 1987 [for short \021TADA\022].
2. Briefly stated, the case of the prosecution is that on
9.5.1992, Kirandeep Singh- the complainant (P.W. 7), son of
Balkar Singh (P.W. 4), went to Inspector Swaran Singh, the
Station House Officer (P.W. 15) who along with other police
personnel was on patrol duty at Atalan bus stand and
reported that he is a resident of village Atalan, P.S. Ghagga,
District Patiala. They are four brothers, and two of his elder
brothers are residing at Ludhiana, whereas he along with his
third brother Jagmail Singh - the deceased and father Balkar
Singh (P.W. 4) are residing in village Atalan and are engaged
in the occupation of farming. It was his case that due to
terrorism activities in the area, the Government has provided
two rifles, one .303 bore and other 7.62 bore with cartridges to
their family for self-protection and security. On 9.5.1992, at
about 7:00 p.m. he and his brother \026 Jagmail Singh were
returning to their house from the fields carrying the said arms
(complainant was armed with .303 and his brother armed with
7.62 bore). Dilbagh Singh, the accused-appellant along with
Jasbir Singh and one more tall young man armed with fire
arms suddenly appeared before them near the chowk of their
house. Dilbagh Singh and Jasbir Singh are the residents of
the same village. They both opened fire on Jagmail Singh who
on receipt of fire arm injuries fell down on the ground.
Thereafter, third accomplice, picked up the rifle of Jagmail
Singh and shot at Jagmail Singh who died on the spot. The
complainant took shelter by the side of a water channel and
started firing in the air to scare the accused. The accused
after sometime stopped firing. The complainant rushed to the
place where Jagmail Singh was lying dead and his 7.62 bore
rifle was taken by the accused.
3. Balkar Singh (P.W. 4) had witnessed the entire incident
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
from his house. He rushed to the scene of occurrence.
According to the complainant, the motive behind the murder
was that before joining the main stream of the society his
brother Jagmail Singh \026 the deceased used to participate in
the extremist activities with the accused. The deceased later
on abandoned the extremist activities and got married. The
accused still wanted the deceased to join their extremist
activities, but since he refused to do so, the accused killed him
on the count.
4. The complainant asked his father, Balkar Singh (P.W. 4)
to guard the body of Jagmail Singh and himself went to P.S.
Ghagga to lodge a report of the incident of murder to the police
but he met the SHO on the way where his statement (Ex.P1)
was recorded. The SHO endorsed Ex. P1 to the incharge of the
Police Station for registration of the case, on the basis of which
FIR No. 27 (Ex. P2) dated 09.05.1992 came to be registered for
offences punishable under Sections 302/384 read with
Section 34 IPC and Section 5 of TADA and Section 25 of the
Arms Act. Inspector Swaran Singh (P.W. 15) rushed to the
place of occurrence and inspected the spot and informed his
superior officers and Army Officers requesting them to reach
at the spot. He prepared the inquest report (Ex. PA) on the
body of the deceased which was identified by Joginder Singh
(P.W. 2) and ASI Jarnail Singh (P.W. 17), residents of the same
village. On 10.5.1992, the body of the deceased was sent to
Civil Hospital, Samana, with inquest and an application (Ex.
PL) for conducting the post-mortem examination through
police C. Ram Dia 1041 and C. Karnail Singh 2250.
5. On inspection of the spot, the Investigation Officer took
into possession: (i) blood-stained earth vide recovery memo
(Ex. PB); (ii) two empty cartridges of 7.62 bore vide recovery
memo (Ex. PC); (iii) 20 empty cartridges of AK-47 rifle near the
dead body vide recovery memo (Ex. PD); and (iv) 7 empty
cartridges of .303 bore near from the dead body vide recovery
memo (Ex. PE). All the articles were packed and sealed with
seal SS in the presence of Mohinder Singh (P.W. 3). A rough
site plan of the place of occurrence was prepared and marked
Ex. PM. Statements of witnesses were recorded. All recovered
articles were later on deposited with MHC Balwinder Singh
(P.W. 12) at P.S. Ghagga.
6. On 10.5.1992 at 10:00 a.m., post mortem examination on
the body of the deceased was conducted by Dr. Satish Arora
(P.W. 5) who in his report (Ex.PF) reported that the cause of
death of Jagmail Singh was gun shot injuries to brain and
right lung resulting in his death which were sufficient to cause
death in the ordinary course of nature. All the injuries were
ante-mortem in nature.
7. The accused Dilbagh Singh @ Bagha was arrested on
17.9.1999 by Inspector Budh Ram (P.W. 14) who conducted
the personal search of the accused and prepared personal
search memo and disclosed the grounds of arrest to the
accused vide separate memo. Blood-stained earth (Ex. PB)
was sent to the Chemical Examiner whereas empty cartridges
(Exs. PC, PD & PE) were sent to Forensic Science Laboratory,
Chandigarh, Punjab. On receipt of the report of the Chemical
Examiner and after completion of investigation, charge sheet
was prepared and filed against accused Dilbagh Singh under
Sections 302/382/34 IPC, Section 25 of the Arms Act and
Section 5 of TADA. The accused pleaded not guilty to the
charges and claimed to be tried.
8. The prosecution in support of its case examined as many
as 18 witnesses namely,: Dalip Singh (P.W. 1) was a witness
of extra-judicial confession allegedly made by accused Dilbagh
Singh, but he did not support the prosecution case; Joginder
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
Singh (P.W. 2) identified the dead body of Jagmail Singh,
Mohinder Singh (P.W. 3) resident of the village in whose
presence the empty catridges and blood stained earth were
taken into police possession from the spot by the Investigating
Officer, proved the recovery memos in this regard Exs. PC, PD
and PE. Balkar Singh (P.W. 4), father of the deceased is an
eye witness of the occurrence; Dr. Satish Arora (P.W. 5),
Medical Officer, who conducted the post mortem on the dead
body of Jagmail Singh; MHC Manmohan Singh (P.W. 6)
produced the original FIR register of this case; Kirandeep
Singh (P.W. 7) the informant is the brother of the deceased; C.
Tejinder Singh (P.W. 8) took the sealed parcels of catridges to
the Forensic Science Laboratory, Chandigarh, Punjab; HC
Kuldeep Singh (P.W. 9) proved the death of co-accused Jasbir
Singh in police encounter and FIR No. 41 dated 29.5.1992 in
this regard stood registered at P.S. Patran; SI Harminder
Singh (P.W. 10) partly investigated this case; C. Hardam Singh
(P.W. 11) took the parcels of the blood stained earth and
blood stained clothes of the deceased and deposited the same
in the office of Chemical Examiner, Patiala and MHC
Balwinder Singh (P.W. 12) with whom the case property was
deposited in the Malkhana by the Investigating Officer, P.W.
12 also proved that one rifle bearing No. 1050 with 50 live
catridges along with other rifle of 7.62 bore and 25 catridges
were issued to the complainant party for their security. ASI
Grudev Singh (P.W. 13) also partly investigated this case
proved the death of co-accused Jasbir Singh @ Pappu and
Bawa Singh (the third co-accused with the appellant) in police
encounter in some other case, Budh Ram (P.W. 14) (since
retired) Inspector of Police arrested accused Dilbagh Singh @
Bagha on 17.9.1999 and proved his personal search memo
and the grounds of arrest memo; Inspector Swaran Singh
(P.W. 15), Investigating Officer of this case proved the
investigation part of this case; Balbir Singh (P.W. 16) proved
the report of the Chemical Examiner Exs PW16/A; Jarnail
Singh (P.W. 17) the then Ahlmad in the court of Judicial
Magistrate, First Class and Pardeep Kumar (P.W. 18), In-
charge, FSL, Chandigarh, Punjab stated that the empty
catridges could not be examined as the weapons were not
recovered in this case.
9. The accused in his statement recorded under Section 313
Cr.P.C. denied the prosecution case and pleaded innocence.
He stated that the deceased was a terrorist and was killed by
the Police in an encounter and that he has been falsely
implicated in this case by the Police to save its own skin.
Three defence witnesses namely, SI Harminder Singh (D.W. 1),
Darshan Singh (D.W. 2) and Amar Singh (D.W. 3) all residents
of village Atalan were examined. The trial court, on
appreciation of the oral and documentary evidence found the
accused guilty of the offences punishable under Section
302/382 IPC and Section 5 of TADA and, accordingly,
convicted and imposed the following sentences upon him
which shall run concurrently:-
OffenceS
IMPRISONMENT
Fine
(Rs.)
in default oF payMENT
OF FINE
U/S. 302 IPC
Imprisonment
for life
5,000/-
RI for 3 months
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
U/S. 382 IPC
5 Years R.I.
2,000/-
RI 1 month
U/S. 5 TADA
5 years R.I.
2,000/-
RI 1 month
10. Aggrieved by and dissatisfied with the said judgment and
order dated 26.02.2007 passed by the Additional Judge,
Designated Court, Maximum Security Jail, Nabha, the
appellant has filed this statutory appeal before this Court.
11. We have heard learned counsel for the parties and with
their assistance, we have examined the judgment of the trial
court and re-apprised the entire oral and documentary
evidence placed on record.
12. Mr. Sarup Singh, learned senior counsel appearing for
the appellant, assailed the judgment of the trial court, inter
alia, contending: (i) that the presence of Kirandeep Singh \026
complainant (P.W. 7) at the place of occurrence of the incident
along with the deceased is highly doubtful because the
informant did not try to save his brother and the fact that the
accused persons who allegedly were fully armed would have
spared the complainant especially when he himself was having
a .303 bore rifle cannot be accepted; (ii) that even the conduct
of Balkar Singh (P.W. 4) \026 father of the deceased was not
natural as he too did not make any attempt to save his son
from attack allegedly made by the accused; (iii) that as the
trial court has not convicted the appellant for charged offence
under Section 25 of the Arms Act which technically would
amount to acquittal for the said offence, therefore, on the
same set of evidence conviction of the appellant for offences
under Section 302/382 IPC and Section 5 of TADA by using
the same weapons is not sustainable; (iv) that the alleged
incident had occurred at about 7:00 p.m. at the chowk of the
village, it is unbelievable that no independent witness from the
village has been examined by the prosecution to corroborate
the testimony of P.Ws. 4 and 7 who are highly interested
witnesses; and (v) that the evidence of defence witnesses has
wrongly been ignored by the learned trial court who have
proved on record that the deceased was murdered by the
police in an encounter and the complainant at the instance of
the Police has implicated the appellant in a false case because
of enmity.
13. Mr. Ajay Pal, the learned counsel appearing on behalf of
the respondent-State on the other hand submitted that the
reasons given by the trial court for recording the order of
conviction of the appellant are based upon proper appreciation
of the evidence led by the prosecution in the case. He then
submitted that merely because P.Ws. 4 and 7, the two eye
witnesses are relatives of the deceased, their testimony
cannot be disbelieved and discarded on this premise only as
their evidence is cogent, consistent and unblemished with the
hypothesis of the guilt of the appellant and this Court should
be slow to interfere in the well-reasoned and well-merited
judgment of the trial court.
14. We have given our anxious and thoughtful consideration
to the respective contentions of the learned counsel for the
parties. The arguments put forward by Mr. Sarup Singh
although are very attractive yet we find ourselves unable to
agree with the same.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
15. On independent scrutiny of the entire evidence produced
on record, more particularly the testimony of eyewitnesses
namely, Balkar Singh (P.W. 4) - father and informant
Kirandeep Singh (P.W. 7) \026brother respectively of the deceased,
it stands fully proved that on 9.5.1992, around 7:00 p.m.,
P.W. 7 and the deceased were returning to their house after
doing routine agricultural pursuits in the fields. Dilbagh
Singh the appellant along with Jasbir Singh and one more
unknown accomplice armed with fire arms suddenly came and
stood in front of them near the chowk located near their house
and opened fire at Jagmail Singh and shot him dead. The
unknown accomplice picked up 7.62 bore rifle of Jagmail
Singh and started firing shots at the body of Jagmail Singh -
the deceased. P.W. 7 took shelter behind the cover
surrounding the water channel and opened fire in the air to
scare the accused and after a short while the accused stopped
firing and fled away from the place of occurrence. P. W. 7
rushed to the spot where his brother was lying dead and his
rifle was found missing. Both these witnesses deposed with
one voice that it was the appellant accompanied by Jasbir
Singh a resident of their village and one more unknown
accomplice who murdered the deceased and the motive behind
the killing of Jagmail Singh was that he was a member of
extremist activities with the appellant, but later on the
deceased joined the main stream of the society and left
extremist activities which offended Dilbagh Singh who wanted
the participation of Jagmail Singh in the extremist activities
but the deceased refused to rejoin their gang. The deceased
after joining the main stream of the society also got married.
The evidence of the eye witnesses could not be shattered by
the prosecution and their evidence has been found
trustworthy, reliable and free from any doubt.
16. Dr. Satish Arora (P.W. 5), conducted the post-mortem
examination on the body of the deceased Jagmail Singh and
found the following injuries:-
\023(1) Gun-shot injury:
(a) Wound of entry \026 .6cm x .6cm over
the right temporal region above the
pinna. Margins inverted, blackened,
collar of abrasion present around the
wound.
(b) Wound of exit \026 10cm x 10cm on the
left front temporal region, margins
averted. Multiple fractures skull
bones and brain matter coming out of
the wound.
(2)
(a) Wound of entry - .6cm x .6cm on the
right scapular region.
(b) Wound of exit \026 2.5cm x 2.5cm on the
front aspect in its upper 1/3rd.
(3)
(a) Wound of entry - .6cm x .6cm on the
right mid thoracic region.
(b) Wound of exit \026 2.5cm x 2.5cm on the
front of chest in its lower 1/3rd.
(4)
(a) Wound of entry - .6cm x .6cm on the
right leg in its lower 1/3rd.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
(b) Wound of exit \026 8cm x 8cm on the back of
right leg in its upper 1/3rd.\024
As deposed before the court that there were multiple fractures
of skull bone, brain matter was badly damaged; there was
haemothorax on right side; the abdomen of the deceased was
healthy, stomach was containing semi-digested food material
and, in his opinion, the cause of death of Jagmail Singh was
gun shot injuries to brain and right lung, which were sufficient
to cause death in the ordinary course of nature. All the
injuries were ante-mortem.
17. MHC Kuldip Singh (P.W. 9) of Police Station Patran and
ASI Gurdev Singh (P.W. 13), have proved on record that Jasbir
Singh and Bawa Singh, accomplices of Dilbagh Singh were
killed in police encounter in regard to another case FIR No. 41
dated 29.5.1992 registered against them under Section 307,
148, 149 IPC, Section 25 Arms Act and Section 5 of TADA at
P.S. Patran, whereas Dilbagh Singh was arrested in this case
on 17.7.1999 by Budh Ram(P.W. 14).
18. The deposition of MHC Balwinder Singh (P.W. 12)
Incharge of the Malkhana of P.S. Ghagga would prove that as
per the report of P.S. Ghagga, i.e. DDR No. 10 dated 5.4.1992
one rifle .303 bore bearing no. 1050 with 50 live cartridges
was supplied to Balkar Singh (P.W. 4) and another rifle of 7.62
bore having butt No. 476 with 25 cartridges was entrusted to
Kirandeep Singh ((P.W. 7), under the BDS Scheme for the
protection of their personal life and property and safety of the
life of other members of the family from the attack of the
terrorists who had been extending threats to them. He
deposed that on 9.5.1992 rifle 7.62 bore having butt No. 476
was said to have been snatched by the terrorists from the
possession of the deceased and that the entire case property
was deposited by Inspector Swaran Singh (P.W. 15) - SHO
P.S. Ghagga, with him with seals intact and the same were
sent to the office of the Chemical Examiner through Constable
Hardam Singh (P.W. 15), whereas the parcels of empty
cartridges were sent by him to the Forensic Science
Laboratory, Chandigarh, Punjab, but the same could not be
got compared as the fire arms used for commission of the
crime could not be recovered from the accused. It is his
evidence that so long as the parcels remained in his
possession, he neither tampered with them nor allowed any
other person to tamper with the same.
19. On independent scrutiny of the evidence of P.Ws. 4 and 7
we find that they are the truthful witnesses who have
helplessly witnessed the crime from the close range but could
not help the deceased because of the sudden attack on him by
the accused who were three in number with deadly fire arms.
P.W. 7 fortunately protected himself by taking shelter by the
side of the water channel as he could not take proper position
and target the assailants with his fire arm and he could only
succeed in firing shots in the air so that he could protect
himself and when he looked at his brother the assailants had
already done their job. P.W. 4 at the relevant time was about
65 years of age and was unarmed while standing on the
terrace of his house which fact itself was enough to prove that
he could not target the assailants to save his son from their
brutal attack. It was but natural that under such fearful and
dangerous circumstances it could not be expected from people
of ordinary prudence such as P.Ws. 4 and 7 that they could
encounter with the terrorists who had come with pre-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
meditated plan to take revenge with the deceased who turned
down their command of not joining the terrorist activities in
the areas of operation. We do not notice material
contradiction in the ocular and medical evidence appearing on
record. The evidence of P.W. 4 and P.W. 7 finds corroboration
from the post mortem report (Ex. PF) of the deceased which
proves that the assailants had used deadly fire arms and as
many as four direct gun shot injuries were inflicted on the
body of the deceased which resulted in 8 injuries of the
wounds having entry and exit of the gun shots. Added to it,
there were also multiple fractures of skull bone of the
deceased and brain matter was badly damaged as deposed by
Dr. Satish Arora (P.W. 5).
20. We have gone through the statements of D.Ws. 1, 2 and
3 who have admitted in the cross-examination that they did
not know how Jagmail Singh died. They have not seen the
occurrence nor were they present at the time of occurrence at
the spot. They stated that there was some murmuring in the
village that Police might have killed deceased Jagmail Singh.
Further, these witnesses have never reported to the Police or
higher authorities that they have heard that Jagmail Singh
was killed by Police authorities or that the accused has been
falsely implicated in this case. They have deposed in the court
in favour of the appellant for the first time in the year 2007
whereas the murder of Jagmail Singh was committed on
9.5.1992 in front of the home of P.W. 4 in the same village to
which the defence witnesses do belong. The trial court has
rightly come to the conclusion that the evidence of defence
witnesses was of no help and assistance to the appellant to
prove that he has been falsely implicated by P.Ws. 4 and 7 in
the case on hand.
20. Having given our careful consideration to the above-
stated submissions made by the learned counsel for the
parties and in the light of the evidence discussed above, it
must be held that the evaluation of the findings recorded by
the trial court do not suffer from manifest error and improper
appreciation of evidence on record warranting any interference
in this appeal.
21. In the result, for the afore-stated reasons, we find that
there is no merit in the appeal and it is, accordingly,
dismissed.