JUDGMENT
Jawahar Lal Gupta, J.
1. The appellant has been found guilty of having murdered Jagdish Singh. He has been convicted and sentenced to undergo rigorous imprisonment for life. A fine of Rs. 5,000/- was also imposed. Aggrieved by the order, the appellant has approached this Court through the present appeal.
2. The prosecution story is revealed by Subash Chander (P.W. 2). He runs a shop in Mallanwala. On August 11, 1991, he along with Jagdish Singh was present in his shop. Maghar Singh (the present appellant) and Hira Singh came to the shop. Chanan Singh who works as a Motor Winding Mechanic also reached there. On an indication from him, Maghar Singh and Hira Singh took out their pistols. Maghar Singh fired a shot which hit Jagdish Singh on the head. He fell down. Subash Chander-complainant raised an alarm. He pushed Hira Singh. On the raising of the alarm, Maghar Singh and Hira Singh ran away with their weapons. The occurrence had allegedly taken place at 12 noon. The F.I.R. Ex. PD was recorded at the instance of Subash Chander (P.W. 2) at 12.20 p.m. Joginder Kumar (P.W. 5) SHO, Police Station, Mallanwala had recorded the statement and registered the case.
3. In an attempt to explain the motive, it was alleged that Harbhajan Singh and Jaspal Singh were not happy with the complainant and the deceased as they used to supply the materials directly to the customers. As a result thereof, they lost their commission. It is alleged that on August 10, 1991, Harbhajan Singh that they would not allow them to complainant as well as his nephew Jagdish Singh that they would not allow them to have their dinner on the next day. It is in execution of this threat that Jagdish Singh was “got murdered” at “the hands of Maghar Singh and Hira Singh terrorists.”
4. In the paper book, the time regarding the receipt of the special report has been typed as 2.30 a.m. However, from the original record and in particular the affidavit of Constable Manjit Singh, it appears that the report should have reached the Sub-Divisional Judicial Magistrate at 2.30 p.m.
5. The case having been registered, the inquest report Ex. PC was prepared. The body of Jagdish Singh was sent for postmortem.
6. The case was investigated. It appears that Hira Singh had been killed on August 20, 1991. FIR No. 80 dated August 20, 1991 was registered in this behalf. The police had initially filed the case for the prosecution of Maghar Singh. Others viz. Jaspal Singh, Harbhajan Singh and Chanan Singh were placed in column No. 2. Subsequently, the trial Court had even summoned Jaspal Singh, Harbhajan Singh and Chanan Singh. They were tried. However, they were given benefit of doubt. Only Maghar Singh was held to be guilty.
7. The prosecution has produced medical and oral evidence to prove the charge against the appellant. The medical evidence consists of the statement of Dr. Pawan Kumar Mangala (P.W. 1). He had conducted the post-mortem examination on the day of the occurrence itself viz. August 11, 1991 at 4.45 p.m. He had found the following injuries :-
“1-A. Lacerated punctured wound with inverted margins measuring 1/2 x 1/2 cm. present on the lateral angle of left eye fracturing the bone below. Blood was trickling out of the wound.
1-B. A lacerated punctured wound with everted margins 1 x 1/2 cm. present 5 cms. above and behind the right pinna. Clotted blood was present. A metal piece (bullet) jutting in the wound which was taken out and sealed. This wound communicated with injury No. 1-A.”
8. The other organs were healthy. The stomach contained semi-digested food. The death was due to the injury to brain and meninges. The statement was not challenged in cross-examination.
9. The complainant-Subash Chander (P.W. 2) reiterated the statement made by him at the threshold. In cross-examination, he stated that he was carrying on the business under the name of Guru Nanak Pipe and Iron Store. He claimed to have visited the village of Maghar Singh in connection with his business. He was confronted with his statement on certain minor discrepancies to point out that he claimed to have grappled with the accused. However, on material particulars, he was steadfast. He asserted that “the occurrence had taken place at about 12 noon.” He had reached the Police Station soon thereafter. While he was still at the Police Station the “police party was despatched to the scene of occurrence immediately ……..” After the recording of the F.I.R., an ASI and two constables had also accompanied him to the spot.
10. The statement of the complainant is corroborated by his brother Mohinder Lal (P.W. 3). He is the father of the deceased. He had reached the shop with the meals. On reaching, he had found that Jagdish Singh had been shot dead. Subash Chander had told him that “Hira Singh and Maghar Singh had come to the shop and Maghar Singh had shot him dead.” In cross-examination, he asserted that even the villages to which both the accused belonged had been disclosed to him.
11. P.W. 4 ASI Satpal Singh stated that he had arrested Maghar Singh after he had been produced before him by his father. Joginder Kumar, DSP (P.W. 5) had recorded the F.I.R. Ex. PD. Draftsman Sunder Singh (P.W. 6) had prepared the site plan. Shiv Dayal (P.W. 7) appeared to state that Hira Singh had died and F.I.R. No. 80 had been registered on August 20, 1991. The Public Prosecutor had also tendered in evidence the affidavits of Head Constable Rachhpal Singh and Constable Manjit Singh. These were taken on record as Exhibits PJ and PK respectively.
12. The accused was examined under Section 313, Cri.P.C. The evidence was put to him. He denied the allegations.
13. This is the entire evidence.
14. We have heard Mr. D. S. Rajput, counsel for the appellant. He has contended that the incident having taken place at 12 noon, the First Information Report could not have been recorded at 12.20 p.m. Secondly, the counsel has submitted that affidavits Exhibits PJ and PK were taken on record without giving the appellant any opportunity to controvert the averments which had been made therein. Lastly, it has been contended that the three accused persons having been given the benefit of doubt, the appellant could not have been convicted.
15. The claim made on behalf of the appellant has been controverted by Mr. Randhir Singh, Deputy Advocate General.
16. Admittedly, the incident had taken place in the shop of the complainant. It is in the main bazar. The Police Station is at a distance of approximately 1 mile. It should not have taken more than a few minutes to reach the Police Station. The incident having occurred in the main market, it was quite possible for the complainant to have reached the Police Station immediately and to lodge the report. He would have also been keen to ensure the arrival of the police so that no further loss occurred. The F.I.R. was apparently recorded at 12.20 p.m. This fact is further corroborated by the affidavit of Constable Manjit Singh who states that he had gone to Zira for delivering the special report to the Ilaqa Magistrate. He has categorically asserted that he had come back to the Police Station on the same day. It appears from the record that the special report had reached the Judicial Magistrate at 2.30 p.m. The promptness provides an intrinsic evidence of truthfulness.
17. Mr. Rajput contends that the affidavit was taken on record without affording any opportunity to the appellant to cross-examine the deponent. He submits that the affidavit should be excluded from consideration.
18. It is undoubtedly correct that the interested party is entitled to cross-examine a person who files an affidavit in a proceeding. However, it is equally clear to us that the request in this behalf has to be made by the concerned party. In the present case, the affidavits were tendered on record on August 10, 1995. The trial Court had recorded the following order :-
One P.W. examined. Affidavits of two P.Ws. tendered and the learned Additional P.P. has closed his evidence. For statement of the accused, to come up on 23-8-1995.”
19. The appellant had enough opportunity to make a request to the Court to allow cross-examination of any of the persons whose affidavits had been taken on record. No such request was admittedly made. Thus, it cannot be said that there was denial of opportunity.
20. Mr. Rajput contends that a perusal of the zimni order would show that the counsel for the appellant was not present in Court on that day. Thus, no request was made.
21. We are unable to accept this contention. Firstly, it appears from the record that the statement of Shiv Dayal (P.W. 7) had been recorded on August 10, 1995. The witness was cross-examined on behalf of all the accused. It is, thus, clear that the counsel was present and had actually cross-examined the witness. Furthermore, a perusal of the record in Gurmukhi shows that Mr. TS Gill, counsel for the appellant was actually present in Court on August 10, 1995 and had cross-examined the witness. Secondly, even if it is assumed that the counsel has not present on August 10, 1995, there was sufficient time for the appellant and his counsel to make an application during the period from August 10, 1995 to August 23, 1995 which was the next date of hearing. It deserves notice that in fact, the statements of the accused persons were recorded on September 9, 1995. Till then, no application was filed by any one for an opportunity to cross-examine Constable Manjit Singh whose affidavit had been taken on record. In view of these facts, we find that there was no failure of justice.
22. Mr. Rajput then contended that the main accused having been given the benefit of doubt, the appellant should have been acquitted.
23. We are unable to accept even this contention.
24. A perusal of the record shows that the FIR had been recorded within minutes of the occurrence. The name of the appellant was clearly given out at the earliest opportunity. Even during the course of evidence before the trial Court, the witness had categorically asserted that Maghar Singh was the person who had fired a shot at Jagdish Singh. The statements of Subash Chander (P.W. 2) and Mohinder Lal (P.W. 3) are clear and consistent. Nothing has been brought out in their cross-examination which may cast any doubt regarding the role of the appellant. So far as the other accused persons are concerned, no role had been attributed to them. It was only alleged that Jaspal Singh and Harbhajan Singh were angry on account of certain business transactions. No evidence in this behalf had been clearly produced. Still furthere, Chanan Singh was only alleged to have given a signal with his eyes. In view of the fact that the allegations were not definite and a clear role had not been assigned to any of the accused, the trial Court had considered it proper to give them the benefit of doubt. In so far as the appellant is concerned, the trial Court had come to the conclusion that the charge was proved. We find no infirmity in the view taken by the trial Court.
25. Lastly, it has been contended that the sentence should be reduced. We find no ground to uphold such a claim.
26. No other point has been raised.
27. We find no ground to interfere.
28. Resultantly, the appeal is dismissed
29.Appeal dismissed.