PETITIONER: LAKHBIR SINGH Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT26/11/1993 BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) RAY, G.N. (J) CITATION: 1994 AIR 1029 1994 SCC Supl. (1) 524 JT 1993 Supl. 171 1993 SCALE (4)553 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
K.JAYACHANDRA REDDY, J.- These three appeals are filed by
the original accused 1 and 3 against the judgment of the
Punjab & Haryana High Court. The two appellants along with
Bawa Singh and Bir Singh, original accused 2 and 4
respectively were tried for offences punishable under
Sections 302 and 307/34 IPC for causing the death of one
Gulab Singh and for attempting to commit the murder of the
witnesses. The trial court convicted the two appellants
under Sections 302/34 IPC and sentenced each of them to
undergo imprisonment for life and to pay a fine of Rs 1000
in default of payment of which to undergo six months’ RI.
The two appellants were also separately convicted under
Section 25 of the Arms Act and sentenced to undergo one
year’s RI. Questioning those convictions the accused
preferred three appeals to the High Court and all the three
appeals were dismissed. Hence the present appeals.
2. The prosecution case is as follows: The deceased Gulab
Singh and the material witnesses including the three
eyewitnesses PWs 4, 5 and 6 belong to Village Mehma Sarja.
PW 4 is the son of the deceased. There was enmity between
the deceased and his family members and the accused. On
Diwali
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previous to the present occurrence one Beant Singh brother
of Gurdev Singh, the second appellant was murdered. Lakhbir
Singh, the first appellant lodged a report against the
deceased for the said murder. The police during the enquiry
found Gulab Singh to be innocent and instead of Gulab Singh,
appellant 1 and his brother and some others were challaned
and the case was still pending. On September 12, 1981 Gulab
Singh, the deceased had gone for purchasing medicines from
Goniana Mandi as he was not feeling well. PW 4, son of
deceased also came to Goniana Mandi for purchasing
insecticides and also to procure money from the Commission
Agent. At about 6 p.m. the deceased was standing near the
railway crossing for going to his village. PW 4 met the
deceased when he talking to Jarnail Singh, PW 5 and Gulzara
Singh, PW 6 who belonged to their village. PWs 4, 5 and 6
went near the hand pump for drinking water which was at a
distance of about 10 karmas from the pitter (sic) jeep in
which the deceased was sitting on the front seat. Lakhbir
Singh, A- 1 came there from the side of Gurduwara and
entered the jeep from behind along with other accused. Bir
Singh, the acquitted accused is alleged to have raised a
lalkara. Hearing the same PWs 4, 5 and 6 looked towards the
jeep and found A- 1 taking out a 12 bore country-made pistol
and firing at the back of the deceased. Gurdev Singh, A-3
was also armed with a 12 bore country-made pistol. He fired
a shot simultaneously which hit the deceased on the head on
the right side. All the witnesses ran towards the jeep and
raised cries and it is alleged that the acquitted accused
Bawa Singh fired a shot with his 12 bore country-made pistol
but the same did not hit anybody. When the witnesses saw
the accused reloading the pistols they ran away and the
accused left the place. PWs 4, 5 and 6 went near the
deceased and found him dead on the front seat of the jeep.
Leaving PW 5 at the place of occurrence, PWs 4 and 6 went to
the police station which was nearby and lodged a report
which was recorded by SI Gurnam Singh. A case was
registered and the Sub-Inspector reached the place of
occurrence and got the photographs of the scene of
occurrence taken. He also recovered three empty cartridges
from the scene of occurrence. After holding the inquest he
sent the dead body for postmortem. The Doctor, PW 1, who
conducted the postmortem, found four gunshot injuries and on
internal examination he found that the right lung was
injured and he opined that injury Nos. 1 and 2 were
individually sufficient to cause death in the ordinary
course of nature and that the injuries were caused by
firearms.
3.Immediately after the occurrence, the police went after
the accused. They saw three persons running. Gurdev Singh,
the second appellant was caught by ASI Gian Chand and he
recovered a pistol from him. The other accused were
arrested later. The prosecution mainly relied on the
evidence of the eyewitnesses PWs 4, 5 and 6. The accused
when examined under Section 313 CrPC denied the offence and
stated that they have been falsely implicated. The trial
Judge as well as the High Court accepted the evidence of PWs
4, 5 and 6 as against the two appellants who are alleged to
have shot at the deceased and accordingly convicted them as
stated above.
4.Shri Kohli, learned senior counsel appearing for the
appellants submitted that PWs 4, 5 and 6 are chance
witnesses and also highly interested and the failure on the
part of the prosecution to examine some independent
witnesses who would have been present at the scene of
occurrence, is fatal to the prosecution case. His further
submission is that the ballastic expert’s evidence
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would show that the empty cartridges recovered at the scene
of occurrence would not have been fired from the weapons
seized. He also submitted that in view of the medical
evidence the prosecution version that the accused shot from
behind at the close range is belied.
5.PW 4, the principal eyewitness is the son of the
deceased. Immediately after the occurrence within a short
while he lodged the FIR. In the said report all the details
of the occurrence are given. It is clearly mentioned that
the two appellants shot at the deceased who was sitting in
the jeep. He also mentioned the names of PWs 5 and 6, the
other two eyewitnesses. If PW 4 had not witnessed the
occurrence, he would not have given a correct version of the
occurrence within such a short time. A perusal of the FIR
would show that it could have been given only by an
eyewitness. The criticism that PWs 4, 5 and 6 are chance
witnesses has no force. All the three eyewitnesses have
given reasons as to why they came to Goniana Mandi. It is a
matter of common knowledge that the villagers do come to a
town and since they belonged to the same village they also
moved together. PW 4 knew that his father had gone to
Goniana Mandi and he also came later and met his father.
There is nothing unnatural about it. Therefore it cannot be
said that the eyewitnesses are chance witnesses.
6.The next criticism is that the prosecution has failed
to examine independent witnesses. Sometimes even assuming
that some people there had witnessed the occurrence, they
might not have come forward to speak about the occurrence.
Further the occurrence has taken place suddenly and the
people in the nearby shops might not have seen the actual
attack and further they could not have known the assailants
since they belonged to a different place. The facts in the
case would show that this was a preplanned murder. At any
rate when the evidence of PWs 4, 5 and 6 is found to be
creditworthy, non-examination of some persons in the
vicinity does not affect the prosecution case.
7. PWs 4, 5 and 6 have been cross-examined at length. Except
eliciting some omissions in respect of minor details they
have not been shaken. So far as the medical evidence and the
expert evidence in respect of nature of the weapons used and
the distance from which the shots were fired, are concerned,
we do not come across any serious infirmity in the
prosecution case. The Doctor, PW 1 who conducted the
postmortem, has stated that the injuries found on the
deceased must have been caused by firearms. As a matter of
fact some pellets also were removed from the body. Therefore
there cannot be any doubt that the firearms were used. He
was cross-examined but he asserted that the distance from
where the pellets were recovered from the entrance wound on
the head may be more than 6″ and that injury Nos. 1 and 2
were caused from a very close range. In view of this
positive evidence even if some of the recovered weapons as
per the ballistic expert’s evidence could not have been
used, that by itself is not a serious infirmity. The
eyewitnesses have categorically stated that country-made
pistols were used and the medical evidence shows that the
death was due to injuries caused by firearms. This aspect
has been considered by the Sessions Court in detail-and it
has been rightly observed that the shots have been fired
from country-made pistols. There was every possibility of
the holes caused being slightly bigger than muzzle. We have
carefully gone through the evidence of the eyewitnesses and
reasons given by the two courts for believing their
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evidence. We see absolutely no grounds to come to a
different conclusion. Accordingly, the appeals are
dismissed.
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