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From the Judgment dated 29.5.1985 of the Judge, Special Court, Ferozepur in Case No.62/84, Trial No.23/85 and FIR No.154 of 1984. FAC |
U.R.Lalit and Prem Malhotra for the Appellants. FAC |
261 N.S.Das Behl and R.S.Suri (NP) for the Respondent. FAC |
The Judgement of the Court was delivered by K.RAMASWAMY,J. FAC |
This appeal under s.14(1) of the , 61 of 1984 for short `the Act ' the reference under s.15(3) thereof and s.366 of the Code of Criminal Procedure, 1973 for short `the Code ' for confirmation of the death sentence of Malkiat Singh, accused No. 1 in Sessions case No.62 of 1984, Trial No.23 of 1985 on the file of the Spe... |
The first accused was convicted under s.302 read with s.34, I.P.C. for causing the deaths of Ram Babu, D 1, Sunder Lal, D 2, Ram Nath, D 3 and Ram Chand, D 4 of each death and sentenced to death subject to confirmation by this court. FAC |
He was also further convicted under s.307 read with s.34, I.P.C. and sentence to undergo rigorous imprisonment for 5 years for attempt to murder Ashok Kumar, PW 4. FAC |
Sukhdev Singh A 2 and Sohna Singh, A 3 were convicted under s.302 read with s.34, I.P.C. for causing deaths of D 1, to D 4 and sentenced to undergo imprisonment for life. FAC |
A 2 and A 3 were convicted under s.307 read with S.341 I.P.C. for attempt to murder of PW 4 and were sentenced to undergo rigorous imprisonment for 5 years, all the sentences to run concurrently. FAC |
Ram Avtar, PW 3 and D 3 Ram Nath, first cousin, had liquor contract in the village Kotli Ablu from 1983 and 1984. FAC |
D 2 and PW 4 were working in the liquor shop. FAC |
The wives of D 2 and D 4 are sisters. FAC |
D 4 came to see D 2. FAC |
D 1 was working in the liquor shop at Ablowbad. FAC |
Since the liquor therein had exhausted he came to Kotli Ablu to sell the liquor in the shop of D 3. FAC |
A 1 and A 2 are brothers and are residents of Kotli Ablu and Sohna Singh, A 3 is their maternal uncle (mother 's brother) and a resident of Rameana situated at a distance of 8 km. FAC |
to Kotli Ablu. FAC |
These are the admitted facts. FAC |
It is the case of the prosecution that at about 9.00 p.m. On June 4, 1984, A 1 and A 3 came to the liquor shop of D 3 wherein PW 3, D 1, D 2 and PW 4 were also present and were vending the liquor. FAC |
They sold one bottle of liquor to A 1 and A 3 on credit. FAC |
After its consumption A 1 and A 3 demanded another bottle to which D 3 refused to sell on credit. FAC |
Thereon A 1 and A 3 abused them and a quarrel ensued. FAC |
Both left the shop in anger. FAC |
D 1 and D 2 slept on a cot in front of the liquor shop. FAC |
D 3 and D 4 slept wooden takthposh in front of the liquor shop. FAC |
PW 3 and PW 4 climbed the roof of the shop and slept there. FAC |
During past midnight of June 4 5, 1984 at about 12.30 a.m. PW 3 and PW 4 heard gun shot fire and got up and saw with visibility of electric light emanating 262 from the house of one Gurbax Singh whose son was examined on DW 2 that A 1 was firing with rifle at D 1 to D 4 and A 2 and A 3 hitting them with Gandasas (sharp... |
Seeing PW 3 and PW 4 on the terrace A 1 fired at them but they escaped uninjured and they jumped down. FAC |
PW 3 jumped towards back side of the shop and ran towards the village and hid in the school. FAC |
PW 4 jumped to the front side and ran towards the village. FAC |
A 1 fired at PW 4 and A 2 hit him. FAC |
He received seven bullet injuries fired by A 1 on the backside, of right, leg, thigh and left side of the abdomen while he was running. FAC |
A 2 hit him on the right shoulder and had incised injury. FAC |
He ran to the house of Gurmail Singh, PW 3 with bleeding injuries, knocked the door and fell down unconscious. FAC |
On June 5, 1984 at about 9.00 a.m. Jit Singh, the Chowkidar of the village reached Kotli Police Station and reported to PW 5, S.H.O. who reduced Ex.P 24 into writing. FAC |
In the F.I.R. he stated that he had heard gun shot firing from the side of the liquor shop. FAC |
Due to fear and the prevailing tense situation he did not come out. FAC |
Next day morning he saw several people collected at the liquor shop and saw the dead bodies of D 1 to D 4 and PW 4 was lying unconscious in the house of DW 3 and he was asked to report the matter accordingly. FAC |
PW 5 after issuing F.I.R. to all the concerned, went alongwith police party to the spot at noon and saw the dead bodies. FAC |
He went to the house of DW 3 and found PW 4 under shock and unconscious. FAC |
He sent him for medical examination by PW 2, the Doctor as his condition was serious. FAC |
PW 3 on coming to know the arrival of the police and the military people at noon mustered courage and came out from the school and went to the shop. FAC |
He was examined at the inquest and he also attested the statement recorded by the police at the inquest. FAC |
PW 5 enclosed the copies of his statement to the inquest report Ex.P 4, P 6, P 8 and P 10 and sent the dead bodies with the reports for post mortem by PW 2 Doctor. FAC |
He also prepared rough sketch of the scene under Ex P1/A. FAC |
He recovered the blood stained earth and cots etc under exhibit FAC |
He recovered 7 empty and two live cartridges exhibit M 0/1 to M 0/9 under panchnama Ex.p 18. FAC |
He remained on the spot till 10.30 p.m. and saw the light emanating from the house of Gurbax Singh and falling at the scene of occurrence. FAC |
He sent requisition twice to the hospital to find whether PW 4 was in a fit condition for recording his statement. FAC |
On June 7, 1984 at about 7.00 a.m. he received an endorsement that PW 4 was in a fit condition to make the statement. FAC |
Accordingly he recorded the statement. FAC |
He sent M.O.S.1 to 9 cartridges and pellets recovered from body of D 4 under exhibitP 25 to ballistic expert for report. FAC |
on June 15, 1984 when he was picketing on the drain of village Chand Bhan at about 3.30 a.m. he arrested the appellants and recovered from the person of A 1. FAC |
exhibit 263 M 0/11 rifle, 351 bore (semi automatic) of U.S.A. make loaded with two cartridges M 0/12 and M 0/13 under panchnama in the presence of panch. FAC |
Pursuant to a statement made under s.27 Evidence Act by A 3 leading to discover Gandasa M 0/14 was recovered under ex.P 27 and sent them to the chemical examination and the ballistic reports. FAC |
Under exhibitP 28, the Ballistic expert found that the empties exhibit M 0/1 to M 0/9 had been fired from rifle exhibit M 0/11. FAC |
Gandasa was stained with human blood as per the report exhibit PW 2 who conducted the post mortem on D 1 and D 2 found on each of the dead bodies two gun shot entry and exit wounds. FAC |
D 3 and D 4 were found to have 4 gun shot lacerated and two incised injuries and 5 lacerated and two incised injuries respectively. FAC |
He removed M.O.S.16 and 17 pellet from the body of D 4. FAC |
He issued post mortem certificates Ex.P 3, P 5, P 7 and P 9 respectively. FAC |
He also examined PW 4. FAC |
He found as many as 7 lacerated gun shot injuries and one incised injury and issued medical certificate Ex. FAC |
Injuries and one incised injury and issued medical certificate exhibit Injuries 1 to 7 were caused by gun shot fire and injury 8 by a sharp weapon. FAC |
PW 5 sent two pellets recovered by him from the body of D 4 to the Ballistic and Chemical Examination. FAC |
The defence consented to mark F.I.R., the affidavits of panch witnesses and constables; the fire arms licence of A 1 under exhibit P 17 and also the reports of the ballistic expert and chemical examination reports without oral evidence. FAC |
PW 6, the Deputy Superintendent of Police supervised the investigation conducted by PW 5. FAC |
The prosecution examined 6 witnesses and defence examined 3 witnesses and marked the documents. FAC |
The accused were examined 3 witnesses and marked the documents. FAC |
The accused were examined under s.313 and denied their complicity and examined DW 1 to DW 3 to prove that the bulb of Gurbax Singh was not burning and PW 3 was residing at Medhak and he was brought to Kotli Ablu by the Police and PW 4 was conscious and did not disclose the names of the appellants at that time. FAC |
The lower court believed the direct evidence of PW 3 and PW 4 and the prosecution case that A 1 fired at the deceased with M 0/11 rifle, A 2 and A 3 also participated in the attack. FAC |
If also found that M 0/11, the rifle belongs to A 1 and he fired the deceased and PW 4. FAC |
Accordingly convicted them for an offences under sections 302/34 and 307/34 I.P.C. When they were asked under s.235(2), they declined to lead evidence and the Sessions Court awarded sentence to the accused as referred to earlier. FAC |
Shri Lalit, the learned senior counsel for the appellants contended that the evidence of PW 3 and PW 4 is highly artificial, unbelievable and untrustworthy; barring their evidence, there is no other evidence to connect the appellants with the commission of the crime. FAC |
The story that PW 3 and PW 4 climbed on the terrace and were sleeping is 264 false as they cannot climb to a height of 8/1/2 ft. PW 3 did not disclose his witnessing the occurrence to any one till noon. FAC |
DW 3 the Sarpanch of Madhok spoke that PW 3 alongwith the panch witnesses were brought from Madhok in a Jeep by the police, so he is a planted witness. FAC |
In support thereof he contends that the specific evidence of DW 3 in this regard was not challenged in cross examination. FAC |
PW 4 was not examined at the inquest though he was conscious. FAC |
The police requisitioned the dog squad to sniff the scene of offence to identify the unknown accused. FAC |
PW 5 and PW 2 the Doctor admitted that the omission of the names of the accused in the case diary and memos would belie the theory of witnesses. FAC |
The omission of the names of the accused in the cause title (Banam) would clearly show that PW 3 and PW 4 were not direct witnesses and PW 3 was introduced at a later stage and he was not examined at the inquest and that PW 4 did not identify the appellants. FAC |
This was also further corroborated from the fact that admittedly exhibit P 24, recited that three unknown assailants had killed the deceased. FAC |
Admittedly the dog squad was requisitioned. FAC |
The appellants were falsely implicated. FAC |
As regards PW 4, he further contended that as per the evidence of DW 2 son of Gurbux Singh and DW 3, Gurmail Singh, PW 4 was conscious at that time of his coming to the house of DW 3 and remained to be conscious. FAC |
The police did not examine him till June 7, 1984 as the assailants were not known. FAC |
There was no light in the house of DW 1 and PW 3 and PW 4 could not have identified the assailants. FAC |
The theory of liquor vending is doubtful for the reason that the entire State was under curfew on that day due to blue star operation on June 3, 1984 and no vending would take place when there is a curfew. FAC |
If really the appellants 1 and 3 had taken the liquor on credit, nothing prevented the prosecution to produce the chit admittedly taken by D 3. FAC |
The theory of burning the shop shows that it is an act of terrorists as was noted in the case diary by PW 6. FAC |
Thus the appellants were implicated by suspicion and the prosecution had not established the guilt of the appellant beyond reasonable doubt. FAC |
The conviction and sentence by the special court was on the same day, namely May 29, 1985 which contravenes the mandatory provision of s.235 of the Code. FAC |
In view of the decision of this court in Allauddin vs State of M.P., J.T.(1989) 2 SC 171 and Anguswamy vs State of Tamilnadu, J.T. the sentence of death awarded to A 1 is illegal. FAC |
A 2 had no axe to grind against the deceased. FAC |
He neither went for drinking at 9.00 p.m. on that day nor had a quarrel. FAC |
He bears no motive to kill the deceased or attack PW 4. FAC |
No recovery of Gandasa was made from him. FAC |
PW 3 and PW 4 have no prior acquaintance with him. FAC |
Therefore, it was highly doubtful whether A 2 had participated in the offence. FAC |
As regards to the third 265 appellant (A 3), it is his contention that he is a resident of Rameana. FAC |
PW 3 or PW 4 do not know A 6 at all. FAC |
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