JUDGMENT
1. Kikkar Singh son of Jarnail Singh son of Sohan
Singh, a young boy of 25 years, at the time of trial,
resident of village Katianwall, has filed the present
criminal appeal and it has been directed against the
judgment and order dated 13.10.1995 passed by the Court of
Additional Sessions Judge, Faridkot, who convicted the
appellant under Section 302 of the Indian Penal Code and
sentenced him to life imprisonment and to pay a fine of
Rs. 2, 000/-. In default of payment of fine, the appellant
was directed to undergo R.I. for three months for
allegedly committing the murder of Gurcharan Singh alias
Channa who was also a young boy of 22 years at the time of
the occurrence which took place on 30.12.1990 i the
revenue limits of village Dabwali Dhab.
2. Appellant Kikkar Singh was chargesheeted under
Section 302/34 IPC on the allegations that on 30.12.1990
(in the chargesheet wrong date has been mentioned as
25.12.1990) in the area of village Dabwali Dhab, in
furtherance of the common intention with his co-companion
Parkash Singh alias Pasha ( proclaimed offender)
intentionally caused murder of Gurcharan Singh alias
Channa son of Makhan Singh.
3. The FIR in this case was lodged by Makhan
Singh, who is none-else, but the father of the deceased,
before SHO Raghbir Singh, Police-Station, Sadar Malout and
the complainant made a statement to the effect that he is
a resident of village Dabwali Dhab and has put up his
Dhani in the fields in which he is residing along with his
family members. Last night of 30.12.1990, he along with
his brother Lakha Singh son of Teja Singh and his son
Gurcharan Singh alias Channa, was sleeping in a separate
room as usual. At about 8.30 P.M. two persons came at
the Dhani and those persons had wrapped themselves with
Lohies. One of them was clean shaven. He was of a medium
structure and moderately built and was having small size
gun in his hand. The other person was tall having a beard
and long hairs. He was moderately built and he was armed
with a big size gun. At that time, the kerosene oil lamp
was burning in the Dhani. Those two persons called the
name of the complainant and enquired from him as to where
his son Gurcharan Singh was. Upon this the complainant
replied that he along with his family is sleeping in the
other room. Thereafter, the complainant got his son woke
up, as a result of which Gurcharan Singh came out of the
room. One of the persons who was a Sikh gentleman them
said that Gurcharan Singh had violated the sanctity of the
Amrit. Thereafter, the other man (clean shaven) fired
shots hitting on the right side of the ear, neck, jaw and
back side of the shoulder of Gurcharan Singh. As a result
of those fire arm shots, the deceased fallen down on the
ground and thereafter, both those assailants went away
from the Dhani by raising threats that in case the
complainant party informed the police, the entire family
would be liquidated. After the departure of the
assailants from the spot, the complainant verified and
found that his son Gurcharan Singh alias Chhana has since
expired. It is the case of the complainant that out of
the fear during the night, they did not go to the
police-station in order to lodge the report. In the
morning of 31.12.1990. he after leaving his other/son
Hakam Singh by the side of the dead body in order to guard
it, he along with his brother Lakha Singh had come to the
police-station in order to lodge the first information
report. Giving the motive for the murder, it has been
alleged by the complainant that unidentified persons had
murdered his son Gurcharan Singh as the latter violated
the sanctity of the Amrti. FIR was recorded over and
explained to the complainant Shri Makhan Singh who
thumb-marked the same in token of its correctness and was
attested by S.I. Raghbir Singh. The Thanedar made
endorsement underneath the said statement and thereafter,
he along with the police-party and the complainant went to
the place of occurrence. Investigation was taken up by
Inspector Raghbir Singh who prepared the rough sit plain
of the place of occurrence. He also prepared the inquest
report and the dead body was handed over to the constable
for post-mortem examination. During the course of
investigation, it was found that Hakam Singh brother of
the deceased had recognised and identified the assailant
as Kikkar Singh. Resultantly, he was arrested on
28.1.1991. On interrogation of Kikkar Singh, it was
revealed that companion of Kikkar Singh was one Parkash
Singh alias Pasha but he could not be arrested and was
declared proclaimed offender.
4. It may be mentioned here that when the spot was
inspected by the Investigation Officer, he took into
possession the blood stained earth vide recovery memo
Ex. PG and he further found six empty cartridges of A.K.47
assault rifle. He made a sealed parcel o the empty
cartridges by using his own seal and those were taken into
possession vide memo Ex.PH. After the post-mortem
examination, the clothes of the deceased were also taken
into possession.
5. The investigation Officer sent the dead body of
Gurcharan Singh alias Channa to the hospital for
post-mortem examination vide separate request Ex. PC and
Dr. Lakhbir Singh PW-1 conducted the post-mortem
examination on the dead body of the deceased and found the
following injuries on his person:
1. Penetrating lacerated wound was present with
inverted margins 1/2 cm in diameter
blackening of skin around the wound was
present on face. It was 4 cm left to the
outer canthes of left eye.
On dissection underlying bone and major
blood vessels were lacerated, clotted blood
was present. Brain matter was lacerated. ON
its exit the occipital bond was fractured
forming a wound 6 cm x 5 cm with everted
margins on right side of scalp just behind
the right year.
2. Penetrating lacerated wound 1/2 cm in
diameter was present just below the lobule of
left ear with inverted margins with
blackening of skin around the wound. Clotted
blood was present.
On dissection underlying tissues and major
blood vessel were lacerated and had made a
exit forming a wound 5×4 cm on the right side
of the face with everted margins just below
the right ear fracturing the right mandible.
3. Lacerated penetrating wound 1/2 cm in
diameter with inverted margin and blocking
of skin around it, (SIC) cm above the left
elbow on the front of the left arm. On
dissection underlying muscles and blood
vessels were lacerated. Clooted blood was
present. Resulting wound 3×4 cm on the
back of left arm, 6 cm above left elbow
joint with everted margin.
4. Lacerated wound 1/2 cm in diameter on
front of right side of chest, 17 cm below
right nipple. Blackening around the wound
was present. Underlying muscles and blood
vessel and liver was lacerated. Clotted
blood was present. It had made a wound of
exit 3 x 2 cm on back of right chest, 4 cm
right to the midline with everted margins.
All other organs were healthy”.
6. The stomach contained 200mls of semi-digested
food, death in the opinion of the doctor was due to shock
and haemorrhage resulting from the above injuries caused
by fire arms. It has also been opined by the doctor that
all the injuries wee ante mortem in nature and were
sufficient to cause death in the ordinary course of
nature. The probable time that elapsed between the
injuries and death was immediate and between death and
post mortem it was within 24 hours. Ex. PB is the correct
carbon copy of the post-mortem report and bears the
signatures of this doctor, Ex. PD was inquest report
running into 18 pages which was sent along with the dead
body for the purpose of post-mortem examination. It may
also be mentioned here that from the arrest of the
appellant, no weapon was recovered by the Investigating
Officer, finally, on the completion of the investigation
of the case, accuses was challenged in the court of Area
Magistrate under Section 302/34 of the Indian Penal Code
by showing Parkash Singh as a proclaimed offender,
learned Magistrate Muktsar supplied the copies of the
documents to the accused as relied upon by the prosecution
under the law and vide commitment order dated 25.9.1991
committed the accused to the Court of Session to face the
trial under Section 302/34 of the Indian Penal Code.
7. On 11.10.1991, the learned trial Court framed a
charge under Section 302/34 of the Indian Penal Code
against Shri Kikkar Singh appellant. It was read over and
explained to him and the appellant pleaded not guilty to
the charge and claimed a trial.
8. In order to prove the charge, the prosecution
examined Dr. Lakhbir Singh PW-1 who conducted the
post-mortem examination on the dead body of the deceased.
The observations of the doctor have already been
reproduced by us in the earlier portion of this judgment.
9. PW-2 is Shri Makhan Singh complainant, and PW-3
is Hakam Singh son of Makhan Singh and PW-4 is Lakha Singh
the brother of the complainant. PW-4 is Shri Surrender’
Singh D.S.P. who simply deposed that on the completion of
the investigation of the case, he submitted the final
report under Section 173 Cr.P.C. and PW-6 is the
Investigating Officer. This witness also deposed that
Hakam Singh had not named the accused in the First
Information Report. The Investigation Officer also did
not make a mention of the name of the accused in the rough
site plan Ex. PJ as he was not named by the witnesses
Further, the accused was not named in the statement of
Lakha Singh and Makhan Singh under Section 175 Cr.P.C. A
categorical suggestion was put to this witness that
supplementary statement of Hakam Singh was recorded on
6.1.1991 just to work out the crime. PW-7 is Head
Constable Bhajan Singh who simply took the dead body of
the deceased for the purpose of post-mortem examination.
Finally the prosecution tendered in evidence the affidavit
Ex. Pa and Ex. PM of the formal witnesses and closed the
case.
10. The statement of the accused was recorded under
Section 313 Cr.P.C. and all the incriminating
circumstances appearing in the prosecution evidence were
put to the accused. Accused denied those circumstances
and stated that he has been falsely implicated at the
instance of Bagicha Singh Sar panch of village Katian Wali
who is the relative of PW Makhan Singh and Hakam Singh
because he had some money dispute with Bagicha Singh
Sarpanch.
11. When called upon to enter into his defence, the
accused did not lead any evidence.
12. Learned Additional Sessions Judge.
Faridkot, virtually in one para judgment, came to the
conclusion that appellant was responsible for the murder
of Gurcharan Singh and he sentenced the appellant in the
manner as stated above and aggrieved by his conviction and
sentence, the present appeal.
13. We have heard Shri T.P.S. Mann, learned counsel
appearing on behalf of the appellants and Shri G.S. Gill,
Sr. DAG, Punjab, appearing on behalf of the respondent and
with their assistance have gone through the record of the
case.
14. Before we deal with the submissions raised by
the counsel for the parties, we want to reproduce the
reasons given by the learned trial Court in para No.16 of
the judgment, as in our opinion the cryptic judgment
written by the learned Additional sessions Judge and
confining his discussion in one para, was not only unjust,
improper but it shows that the proper law on the point of
identification has not been appreciated by the learned
trial Court. Para No. 16 of the judgment of the trial
Court is reproduced as under:-
“16. The learned defence counsel has argued
that in F.I.R. there is no mention of the name
of the accused and it is at a later stage that
the accused has been falsely implicated in the
present case at the instance of one Bagicha
Singh Sarpanch of village Katianwali. This
argument is devoid any force. The accused has
been duly identified by the eye witnesses and
it is in evidence that at that time there was
light of the lamp min the house when the
accused entered the house of the complainant
and shot Gurcharan Singh dead by firing at him.
Those days when the present occurrence took
place, were the days of terrorism and fear was
writ at large in the hearts and minds of the
people in general. No body wanted to open the
mouth against the terrorists who indulged in
indiscriminate firing and shooting whosoever
came before them. So, it is not surprise that
the FIR was lodged by the complainant as blind
FIR without naming any accused. Accused Kikar
Singh was later on arrested and he has been
fully identified by the sufferers who appeared
in the witness box as witness. No enmity
against the complainant or any PWs has been
attributed by the accused. Therefore, I am not
inclined to disbelieve the statements of the
eye witnesses against the accused which are
fully corroborated by the medical evidence and
circumstantial evidence, as such the arguments
of the learned defence counsel are rejected”.
15. It is blind murder. The occurrence has taken
place in the house of Makhan Singh, we are not doubting
the presence of Makhan Singh, his son or brother but we
are doubting the veracity of these witnesses whether they
were in a position to identify the assailants or not.
16. Let us can through the case of the prosecution
and the evidence led by it from the very beginning, the
case set up by the complainant before the police was that
on the night of occurrence, he along with his brother
Lakha Singh and his son of Gurcharan Singh was sleeping in
a separate room as usual and at about 8.30 P.M. two persons
came at the Dhani wrapped in Lohis. Out of them one was a
clean shaven and the other was having a beard and long
hairs. It is the case of the complainant that in his
presence and in the presence of Lakha Singh Shri Gurcharan
Singh was murdered and after the occurrence he left behind
his other son Hakam Singh bear the dead body and he along
with lakhs Singh came to the police-station in order to
lodge the report. Even the trio would agree that this
murder was committed during the days when terrorism was at
peak in the State of Punjab and this is even admitted by
the learned trial Court in para No. 16 of the Judgment. In
the FIR which is also exhibited as PA, the name of the
Kikar Singh or his companions Parkash Singh, have not been
mentioned. Rather the case set up by the complaint is
that the assailants when came in the Dhani had wrapped
themselves with Lohies suggesting that the assailants
wanted to conceal their identity lest they may not be
identified by the inmates of the house. It is also the
admitted case of the prosecution that Shri Kikkar Singh
appellant when arrested by the police has not been got
identified by the complainant Shri Makhan Singh or his
brother Lakha Singh. The supplementary statement which
has been recorded is dated 6.1.1991. Makhan Singh
appeared as PW-2 for the first time in the trial Court.
He started saying that Kikar Singh appellant fired a shot
upon his son which hit on the neck of Shri Gurcharan Singh
and he fired more shots upon Shri Gurcharan Singh hitting
on his jaw, shoulders and others parts of the body and
thereafter, Kikar Singh accused and his companion went
away by giving threats that in case the matter was
reported to the police the entire family would be
finished. In the cross-examination, it has been admitted
by Shri Makhan Singh that he knew Kikar Singh before this
occurrence and he did not name the accused to anybody.
However, he told the name of the accused to the police in
the FIR the name of the accused is not mentioned. The
case set up by the witness at the trial is that he knew
the accused before this occurrence. It is also the case
set up by the prosecution that ear then lamp was burning in
the house. Under these circumstances, what was the
difficultly on the part of the witness Shri Makhan Singh
not to disclose the name of the appellant or his companion
before the police on 31.12.1990 when the FIR was recorded
in the police-station. He further admits that Kikkar Singh
was not got identified from him. He was successfully
confronted with the contents of the FIR because in the FIR
there is no mention that his other son Hakam Singh was
present in the house.
17. Be that as it may even we believe the presence
of Hakam Singh at the house being family member still the
point for identification will be a predominant factor for
our consideration. The reading of the FIR would show that
it was lodged in the police-station vide DDR No. 6 at 10.00
A.M. but this registration of the FIR is also falsified
from the statement of Makhan Singh. As per the statement
of Shri Makhan Singh, the police came to his house at
about 7/7.30 A.M. It is also the case of the prosecution
that the inquest proceedings were prepared at the spot.
But again it does not appear to be correct but as per the
statement of Shri Makhan Singh the police took the dead
body of his son Gurcharan Singh to the police-station and
then to the hospital. Even at the time of the preparation
of the inquest report on 31.12.1990, the name oft he
accused were not disclosed. Thoughshir Makhan Singh has
tried to show that police had obtained his
thumb-impression on some document but he is not in a
position to tell the description/detail of that document.
A very vital fact has been admitted by Shri Makhan Singh
in his cross-examination when he deposed that police had
arrested the appellant on the next day of the occurrence
i.e. on 31.12.1990. Meaning thereby that the police
wanted to fix this appellant by one way or the other in
order to solve the crime. If the police had taken the
accused into custody on 31.12.1990, what was the
difficulty on the part of the Investigating Officer in not
asking the appellant to conceal his face as his
identification was to be got conducted from the witnesses
namely Makhan Singh, Lakha Singh or Hakam Singh. On the
contrary, the case set up by the Investigating Officer is
that accused was arrested on 28.1.1991. The supplementary
statement which was recorded by the Investigating Officer
of the witnesses is dated 6.1.1991. If the identity of
the accused was known to the witnesses on the night of the
occurrence, their names should have firstly come in the
FIR; secondly in the inquest report, thirdly in the
summary of inquest report and fourthly in the document
prepared by the Investigating Officer at the spot or so
much so even on 31.12.1990, if entire allowance is given
to the prosecution witnesses that on account of fear they
did not tell the names of the assailants to the
Investigating Officer at the time of the lodging of the
FIR. After discussing the statement of PW now, we switch
over to the statement of Hakam Singh who is the real
brother of the deceased. Though this witness tries to
implicate the appellant in his substantive statement/yet
we are not in a position to accept his statement because
in the earlier statement recorded by the Thanedar on
31.12.1990 the witness has stated that some unknown
persons fired upon his brother. The witness had the
cheeks to deny that his statement on 31.12.19990 has not
been recorded. The fact is that his statement was
recorded and his supplementary statement was also recorded
on 6.1.1990. In the cross-examination, the witness also
admits that he knew the accused earlier as he used to sell
illicit liquor prior to the occurrence. If this was the
situation there was no bar on this witness to depose about
the name of the culprit before the police on 31.12.1990.
He could pass on that vital information about the identity
of the accused to his father or to his uncle. The very
fact that appellant was not named in the FIR or subsequent
to the FIR, would show that the identity of the
appellant is a doubtful affair.
18. The things do not rest here. Makhan Singh
admits in the cross-examination that accused was
identified at the spot. If this was the correct state of
affairs then the only inference which can be drawn is that
by not mentioning the name of the appellant or his
companion in the FIR, is vital and big blow to the case of
the prosecution, Makhan Singh’s statement to the effect
that accused was named before the police by his father
also appears to be incorrect because Makhan Singh in his
police FIR does not name any of the culprits. It is not
the case of the prosecution nor it has been so projected
either before us or at the trial Court that the
investigation in this case was partial. It could not be
possibly partial because the accused was not known to
anybody and it is the case of the prosecution that Shri
Kikkar Singh was apprehended somewhere on 28.1.1991. In
the statement Ex. PA the name of Kikkar Singh is not
mentioned. The substantive statement of the witness that
Kikkar Singh fired many shots upon his brother has been
successfully confronted by the defence in the trial Court.
19. The next witness is Shri Lakha Singh, the
brother of the complainant. This witness too deposed that
he knew the accused earlier and that he did not give the
description of the accused as he was not known to him but the
things are otherwise. This witness too has
successfully been confronted with his police statement
Ex. DB. There can be honest mistake with regard to the
identity at the hands of one person. This mistake cannot
be repeated by another person and again repeated by the
third person. The endeavour on the part of t he
prosecution witness at the trial to make out a case of
known eye witness is totally false. It is also the case
of the prosecution that at the time of the arrest of he
appellant he was not found in possession of any fire arm.
If we eliminate the presence of Makhan Singh/Hakam
Singh and Lakha Singh from the spot we are only left with
the medical evidence, we all know that medical evidence
is a corroborative piece of evidence. This aspect alone
is not enough to record a conviction. At the cost of
repetition we may say that the question of identification
is predominant and sole point in this case. The
identification of a culprit for the first time in Court is
valueless.
20. In AIR 1979 SC 1127 Kanan and Ors. v. State
of Kerala, it was held as follows:-
“Where a witness identifies an accused who is
not known to him in the Court for the first
time, his evidence is absolutely valueless
unless there has been a previous T.I. parade
to test his powers of observations. The idea
of holding T.I. parade under Section 9 is to
test the veracity of the witness on the
question of capability to identify an unknown
person whom the witness may have seen only
once. If No. T.I. parade is held then it will
be wholly unsafe to rely on his bare testimony
regarding the identification of an accused for
the first time in Court, Decision of Kerala
High Court reversed”
21. This Court in 1998 (3) RCR (Criminal) 680
Balwan v. State of Haryana held that when material point
for determination in a trial is about identification of
the accused and it is established on the record that no
identification parade was got conducted by the
Investigating Officer then in such a situation the
identity of the accused for the first time in Court is no
identification in the eyes of law and in such a situation
the benefit of doubt should go to the accused. Similar
view was adopted by the High Court in 1999(3) RCR
(Criminal) 326 Devinder Singh v. State of Haryana.
22. The learned trial Court in the quoted para has
recorded the conviction by relying upon the sole factor
that the appellant Kikar Singh was identified in the Court
and that the prosecution witness has no axe to grind. Both
the reasons are shallow and not legally tenable. The
learned trial Court has forgotten a very vital fact that
this occurrence had taken place during the days when
terrorism was at peak in the State of Punjab which was
burning due to the activities of the terrorists and
extremists. Such like offences used to be committed at
random and with impunity with no motive but to create
terror in the mind of innocent persons’ hundreds of
innocent men or women and children became the target at
the hands of terrorists whose main object was to break the
law and order situation in the present State but there was
no immediate motive on the part of such assailants. The
law Courts are subsurvient to the law of evidence. On
mere allegations howsoever strong may be, conviction
cannot be recorded. Those allegations have to be
translated into proof as per the law of evidence. In
Shaik Umar Ahmad Shaikh and Anr. v. State of
Maharashtra JT 1998 (3) SC 535, the Honble Supreme Court
has ruled that no doubt, the evidence of identification
parade is not a substantive evidence, but its utility is
for purposes of corroboration. In other words, it is
utilised for corroboration of the sworn testimony of
witnesses in Court as to the identity of the accused who
are strangers to them. The real and substantive evidence
of the identity of the accused comes when witnesses give
statement in the Court, identifying the accused. When
the accused were already shown to the witnesses their
identification in the Court by the witnesses was
meaningless. The statement of witnesses in the Court
identifying the accused in the Court lost all its value
and could not be made basis for recording conviction
against the accused. The reliance of evidence of
identification of the accused in the Court by the
Designated Court, was an erroneous way of dealing with the
evidence of identification of the accused in the court by
the two eye witnesses and had caused failure of justice.
23. In the present case, it has come from the
statement of Makhan Singh that accused was in the custody
of the police on 31.12.1990 However, the Investigating
Officer says that accused was apprehended on 28.1.1991
meaning thereby that the appellant remained in custody of
the police. In such a situation, a reasonable inference
can always be drawn that the appellant was shown to the
witnesses who could tell a lie for the purpose of taking
revenge.
24. From above discussion, we have tried to show
that the finding of conviction recorded by the learned
trial Court in para No. 16 of the judgment is not
sustainable in the eyes of law. Therefore, we allow this
appeal, set aside the judgment and order of conviction and
sentence and acquit the appellant of the charge framed
against him. He shall be set at liberty forthwith if not
wanted to convicted in any other case. The case property
shall stand confiscated to the state and shall be
destroyed according to rules. Let intimation about this
acceptance of this appeal be sent to the jail authorities
and Chief Judicial Magistrate, Faridkot so that the
appellant may be set at liberty if he is in custody.