DATE : 27-06-1997  1998-(104)-CRLJ -0218 -J&K

JUDGE(S) : Bilal Nazki  D Sharma JAMMU AND KASHMIR HIGH COURT

JUDGMENT

G. D. SHARMA, J. :- The appellant, Santokh Singh, an octogenarian (89 years old), has been awarded capital punishment by the learned Ist Additional Sessions Judge, Jammu for murdering two young real brothers who were his nephews.

2 The genesis of the incident is the internecine quarrel which took place on 27-5-1954 (43 years ago). On a trivial incident regarding the non-payment of a paltry amount of Rs. 5/-, the deceased Kahan Singh and Chain Singh were brutally done to death. The prosecution case is that the deceased Kahan Singh owed Rs. 5/- to one Lalman – a shopkeeper of the town of Samba. On Jeth 15, 2011 Bikrmi i.e. on the day of occurrence, the said Lalman came to the house of the deceased Kahan Singh and demanded the payment of the debt of Rs. 5/-. Kahan Singh pleaded the liquidation of the debt by stating that he had made the payment through the appellant but the said creditor denied its receipt. For verification, contesting parties called the appellant on the spot who admitted the receipt of Rs. 7/- from Kahan Singh but showed that the amount was given for making purchases of tabacoo and cigarette from the bazar for him. Deceased Kahan Singh admitted the receipt of only one packet of cigarette from him in lieu of this sum of money and claimed the balance amount. The heated arguments gave rise to frayed tempers. Deceased Kahan Singh went into bellicose mood and he violently pushed the appellant who fell on the ground. He also hurled a volley of abuses on him. Abhey Singh (brother of the deceased Kahan Singh) emerged on the spot and with his intervention, the warning parties were separated. The other brother of the deceased namely, Talab Singh also reached the spot who held out an olive branch as he made payment of rupees five from his own pocket to the creditor Lalman and bade him goodbye. The deceased Kahan Singh was constructing a house and needed timber. After some-time, he in the company of his brother Chain Singh set out to their fields to fetch the same on the back of their camel. The appellant could not bear with the insult and was smarting under humiliation. He resolved to take revenge and came out from his house after arming himself with a 303 gun. He waylaid the deceased by camouflaging himself under “Phly” Tree and when the deceased reached within the firing range of his gun, he opened the fire. The first fire was aimed at Chain Singh who was hit in the chest and he fell down stone dead. The second fire of the gun was made at Kahan Singh who received the injury in his stomach and fell down in a pool of blood. The occurrence was witnessed by Jagdish Singh and Parveen Singh. The latter informed Talab Singh (brother of the deceased) about the incident who in the company of Jagdish Singh immediately went to the spot and lifted Kahan Singh who was gasping for breath. He was brought to home where he succumbed to the injury within 3/4 hour. He had made dying declaration which implicated the appellant. Prosecution witnesses namely, Abhey Singh (brother of the deceased) and Gunjar Singh had also seen the appellant running from the spot when he was carrying the gun in his hands. He had held threat to do away with the life of Abhey Singh. On the same day. Thakara Singh and Chandu Chowkidar lodged an oral report of the incident in the Police Station, Samba whereunder, F.I.R. No. 7 of Samat 2011 case was registered for the commission of offence under section 302, R.P.C. The appellant had absconded and in his absence final report for the commission of offence under section 302, R.P.C. was submitted before Munsiff Magistrate First Class, Samba. He initiated proceedings under Sec. 512, Cr.P.C. against the appellant and in his absence recorded the statements of prosecution witnesses namely, Abhey Singh, Talab Singh, Surman, Chandu, Jagdish Singh, Gunjar Singh, Sarda Ram, Lalman, Ludermani, Dr. P. R. Prabbakar and Bakshi Dhan Raj, S.I. of Police. After appreciating the evidence, on 14-5-2011 (Bikrmi) the learned Munsiff Magistrate passed the committal order and held that the appellant had intentionally murdered the deceased. In the absence of the appellant, the case could not be committed to the Court of learned Sessions Judge but was consigned to the records. Non-bailable warrant of arrest was issued against him which remained in operation and could only be executed in the year 1987. On 3-8-87, the police produced the supplementary challan in the Court of learned Sub-Judge, JMIC, Samba who vide his order dated 3-9-87 committed the case to the Court of learned Sessions Judge, Jammu, who transferred the same to the Court of learned First Additional Sessions Judge, Jammu. The appellant was charged for the commission of offence under section 302, R.P.C., the contents whereof were read over and explained to him. He pleaded not guilty and the prosecution examined Talab Singh, Sarda Ram, Dr. P. R. Parbhakar and Parveen Singh as prosecution witnesses. Kuldip Raj, Selection Grade Constable was also examined to prove the fact that the prosecution witnesses namely, Chandu Ram, Jagdish Singh, Abhey Singh and Gunjar Singh had died. The appellant, in defence examined Golay Ram, Dinku, Narsing Singh and Bishen Dass as his witnesses. The learned trial Judge has convicted the appellant under Section 302, R.P.C. and sentenced him to be hanged by neck till death. This judgment has been challenged on the following grounds :-

1. The learned trial Judge has believed those witnesses whose testimony was recorded in the absence of the appellant. Such an evidence is inadmissible and any finding based thereon is illegal.

2. The prosecution evidence was replete with material contradictions but the trial Judge has wrongly ignored them.

3. The motive behind the murder is not established and there could be no murder without any motive.

4. The trial Judge has wrongly disbelieved the defence witnesses.

5. While awarding the death sentence, the trial Judge has wrongly relied upon the ratio of the judgment of Raj Gopal Nayers’ case. The facts and the circumstances of both the cases are different.

3. Heard the arguments.

4. The learned defence counsel at the outset has contended that the proceedings under Section 512, Cr.P.C. were not taken against the appellant in accordance with law and the evidence of the witnesses recorded in his absence cannot be read against him. This plea is not borne out from the record which reveals that on 4-4-2011 (Bikrmi), constable Sita Ram was examined in the Committal Court who had stated that in execution of the warrant of arrest issued against the appellant, he searched to locate him but failed in his attempts. He had categorically stated that there was no immediate prospect of arresting him. This statement was believed by the committing Magistrate who ordered that proceeding under section 512, Cr.P.C. were initiated against him and directed the prosecution to produce the prosecution witnesses on the next day i.e. on 5-4-2011 (Bikrmi). On this day, the statements of prosecution witnesses namely, Abhey Singh, Talab Singh, Surma, Chandu, Jagdish Singh, Gunjar Singh, Sarda Ram, Lalman, Ludermani, Dr. P. R. Prabhakar and Bakshi Dhan Raj, SI were recorded. The Prosecuting Officer had given the statement that the remaining witness namely, Parveen Singh will be examined in the Sessions Court. The requirements for initiating proceeding under Section 512, Cr.P.C. are that it must be proved that an accused person has absconded and there is no immediate prospect of arresting him. The Court competent to try or commit for trial such person for the offence complained of may, in his absence examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the enquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

5. The Additional Public Prosecutor in the trial Court had made the application that the statements of those prosecution witnesses who have died may be transferred from the record of the Committal Court. The defence counsel had filed the objections and pleaded that the application was not maintainable as the amended Code of Criminal Procedure does not permit any such transfer. The trial Court had ordered the production of that witness who could depose about the death of the witnesses. Accordingly, the prosecution examined Kuldip Raj, SGC who stated on oath that prosecution witnesses namely, Chandu Ram, Jagdish Singh, Abhey Singh and Gunjar Singh had died. The defence was given the opportunity to cross-examine the witness but this opportunity was not availed of. The trial Court in its order dated 9-6-88 had held that the above stated witnesses had died and directed the prosecution to produce the remaining witnesses. When the defence did not put any question to Kuldip Raj, SGC in cross-examination that means that the appellant had no doubt about their death. Even in his statement recorded under Section 342, Cr.P.C., the appellant was specifically asked that these witnesses had died and what he had to say about that fact. The reply of the appellant was that he had nothing to say. On these admitted facts, the depositions of these witnesses can be given in evidence against the appellant and the argument that the evidence was inadmissible loses its significance.

6. The learned counsel for the appellant has further contended that the trial Judge recorded the statements of the appellant at two occasions i.e. on 13-12-1988 and on 21-11-1989 and at no time, he was enabled to explain the circumstances appearing in the evidence against him. In the presence of such illegality, his conviction and sentence cannot be sustained. In support of his contention, the counsel has cited the case of S. Harnam Singh v. The State (Delhi Administration), AIR 1976 SC 2140 : (1976 Cri LJ 913). In this case, the Apex Court has held (Para 22) :

“that Section 341, Cr.P.C. casts a duty on the Court to put, at any enquiry or trial, questions to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Therefore, each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so, amounts to serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact, occasion a failure of justice, it is curable under section 537 of the Code.”

7. A reference to Section 342, Cr.P.C. reveals that it has been incorporated in the statute for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him and the Court may at any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court considers necessary. But the Court has the limited scope to use this discretion not at all the time when the proceedings are before it but only after the witnesses of the prosecution have been examined and before the accused is called on for his defence. In the present case, the appellant was examined after the prosecution had examined its witnesses. The first examination was made on December 13, 1988. After this, a controversy had arisen as to how for the depositions of those witnesses who had died after deposing before the Committal Court could be read in evidence. On 23-3-89, the prosecution examined Kuldip Raj, Selection Grade Constable to prove the fact that witnesses Chandu Ram, Jagdish Singh, Abhey Singh and Gunjar Singh had died. The Court accepted this version and gave a finding that they had died. On the discovery of this new fact, the Court had felt it necessary to examine the appellant again. Accordingly, on 21-11-89, the examination of the appellant was made and he was also asked this aspect of the case. Besides that he was made to explain all the circumstances appearing in evidence against him. The appellant had put up a defence of alibi as according to him, at the time of the occurrence he was in village Ramnagar Tehsil and District Lakhanpora of the State or Uttar Pradesh where he had started tilling the land. His only explanation was that the ancestors of the deceased had enmity with him so this false case was foisted against him. He had even denied that he remained absconding for 35 years and in execution of the arrest warrant issued against him, he was produced in the Court. From the perusal of the record of the examination of the appellant, it is found that each material circumstance appearing in evidence against him was put to him specifically, distinctly and separately. The learned counsel has failed to show how the appellant has been prejudiced by not putting any relevant circumstance to him. In the absence of any irregularity, it cannot be said that there is an occasion which has caused failure of justice. The argument of the learned counsel is devoid of legal force and does not hold good.

8. The other argument advanced by the learned defence counsel is that mandatory provisions of Section 173, Cr.P.C. have not been complied with as the appellant was not given any copy of the documents which accompanied the final report submitted to the Committal Court. That this omission has vitiated the proceedings. It may be noted that this argument has been taken up for the first time at this stage. Even the memo of appeal does not contain any such ground. In the order dated 5-10-87 passed by the learned trial Judge, the prosecution was directed to supply the copies of the documents to the defence counsel within weeks’ time. Afterwards, the case was adjourned for five dates of hearing for the reasons recorded therein. On 23-11-87, the arguments of the prosecution and the defence counsel regarding framing of charge were heard and the appellant was charge-sheeted for the commission of offence u/S. 302, RPC. In case the defence counsel was not given any copy of the documents he would not have argued the case without raising a plea of his inability to appreciate the facts. His participation in advancing the arguments shows that he had received the requisite copies. Now it is too late in the day to advance such an argument which is an after thought and has no bearing with the factual matrix of the case.

9. The learned defence counsel has vehementally contended that there is no legal evidence which proves the commission of murder against the appellant. The material contradictions in the statements of the prosecution witnesses render the evidence unbelievable. This argument requires a close scrutiny of the prosecution evidence. The prosecution case is that Jagdish Singh and Parveen Singh were the witnesses of the actual commission of the crime, Jagdish has died during the proceedings but his statement had been recorded by the Committing Court under section 512, Cr.P.C. Now, this statement can be given in evidence. From the perusal of his statement, it is found that he had stated that he in the company of Parveen Singh had heard the gun fire and when their attention was drawn to the place of fire, he saw Chain Singh who had been hit by that gun shot. The appellant was holding a 303 gun in his hands and hidden himself below a “Phly” tree. After sometime, the appellant made a second fire from his rifle which hit the deceased Kahan Singh who also fell down. He and Parveen Singh returned from the fields and informed Talab Singh PW (brother of the deceased) about the incident. He again in the company of Talab Singh went to the spot and found Chain Singh lying on the ground. He was facing the ground and bleeding profusely. He was gasping for breath. At a distance of 10 or 12 yards, Kahan Singh was also lying but he was trying to stand up. The bullet had caused the injury in the stomach from where the blood was oozing out. Talab Singh P.W. lifted Kahan Singh and brought him to his house. Chain Singh had died on the spot but Kahan Singh breathed his last after 3/4 hour. The evidence of other eye-witness namely, Parveen Singh was not recorded by the Committing Court. The prosecution on 7-10-88 examined him in the trial Court. He feigned ignorance about the incident. As he did not support the prosecution case, so he was declared as a hostile witness.

10. Talab Singh, who is the real brother of the deceased has appeared as a witness in the trial Court and affirmed the deposition of Jagdish Singh P.W. when he stated that the incident was reported to him by Jagdish Singh and Parveen Singh. He admits to have hurriedly gone on the spot and seen the appellant running away. Both the injured had received gunshot injuries and were lying in pools of blood. Kahan was alive and he had narrated the incident to the effect that he as well as his brother Chain Singh were injured by the appellant with gun fires.

11. Sarda Ram has also appeared as a witness in the trial Court and stated that on the day of the incident, the deceased Kahan Singh had engaged him as a carpenter. Altercation between Kahan Singh and the appellant had started in his presence which had developed into physical scuffle. In his presence, the deceased had gone to fetch the timber from their fields and he had also heard gun fires. He is also categorical in stating that he had heard Jagdish Singh and Parveen Singh saying that the appellant had fired gunshots from the rifle on the deceased and ran away from the spot.

12. The prosecution has also examined Dr. P. R. Parbhakar. He has performed the autopsy on the dead body of the deceased. He was examined in the Committal Court as well as his statement has been recorded in the trial Court. In his opinion, the deceased had died of shock and haemorrhage due to gunshot injuries.

13. Now, there remains the testimony of Abhey Singh, Gunjar Singh and Chandu Ram. These witnesses after deposing before the Committal Court have died. Abhey Singh had seen the appellant running away from the spot and he was carrying a gun in his hands. The appellant while running had threatened him also and at the advice of Gunjar Singh PW, he concealed himself from the view of the appellant. He had met the deceased Kahan Singh before life had ebbed in him. Kahan Singh had named the appellant to have caused the gunshots to him as well as to Chain Singh. Gunjar Singh had also seen the deceased from a distance of 2/3 “Jareebs” while he was running after carrying the rifle in his hands. He had visited the spot. Jagdish Singh and Parveen Singh PWs had told him that the appellant had fired the gunshots at Kahan Singh and Chain Singh. He had also met Kahan Singh who before his death had narrated the incident to him and implicated the appellant. Chandu Ram was the Chowkidar of the village. Immediately, after receiving the information of the occurrence, he in the company of Thakara Singh went to the Police Station and lodged the F.I.R. He has also stated that Jagdish Singh had told him that the appellant had killed the deceased. In the presence of such evidence which is of impeccable nature, it cannot he said that the account given by the witnesses suffered from material contradictions and it was not worthy of any credence. The argument advanced by the learned counsel is only an argument of despair.

14. Be that as it may, the defence which the appellant has taken to prove his innocence goes in a way to implicate him with the crime. In his statement under section 342, Cr.P.C. he has set up a plea of alibi that at the time of the incident, he was in his village of migration namely Ramnagar Lakhanpura-Ekhree in the State of U.P., where he had started tilling the land. His defence witness namely, Golay Ram who is a resident of the same village has stated that when about 40 years ago the appellant came to their village, he was clean shaved and had told him that he was a domicile of the State of Punjab. His other witness of the same village is Dhinku who has stated that the appellant after settling himself for ten years in the village, converted himself as a Sikh and raised a family. The appellant has not tendered any explanation as to why he left his family members and the native place for good. A criminal trial is not an inquiry into the conduct of the person charged with the crime. However, conduct of the accused immediately after the occurrence is a relevant fact u/S. 8 of the Evidence Act. In this connection, that a piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. In the instant case, there is no reasonable explanation for the sudden disappearance of the appellant from his home, leaving the family including wife and the child in lurch and starting a new life in a far off village by converting himself as a Sikh and concealing the real identity and raising a new family are the factors which destroy the presumption of innocence and speak volumes in favour of his guilt.

15. The learned defence counsel has advanced a novel argument when he challenge the veracity of material prosecution witnesses and especially that of eye-witnesses. According to him, their names should have figured in the F.I.R. and as this has not happened, so no reliance should be placed upon them. This argument is devoid of any legal force as the law does not require that the names of such witnesses should always find a place in the F.I.R. This settled proposition of law has recently been reiterated by the Apex Court in the cases of Baldev Singh v. State of Punjab, AIR 1996 SC 372 and Rattan Singh v. State of Himachal Pradesh, AIR 1997 SC 768 : (1997 Cri LJ 833). In the case of Baldev Singh (supra), it has been held (at p. 375 of AIR) :-

“FIR is not substantive piece of evidence. Non-mentioning of some facts or vague reference to some others not fatal.”

In the case of Rattan Singh (1997 Cri LJ 833) (supra), the Apex Court has held (at p. 836 of Cri LJ) :-

“Criminal Courts should not be fastidious with mere omissions in the First Information Statement, since such statement cannot be expected to be a chronicle of every details of what happened, nor to contain an exhaustive catalogue of the events which took place ……. The person who furnishes first information to authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often the Police Officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is the voluntary narrative of the informant without interrogation which usually goes into such statement. So any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all.”

16. In the present case, the F.I.R. was lodged by Chandu Ram, Chowkidar who was accompanied by Thakara Singh. They were not the witnesses of the actual commission of the crime. It is not the case of anybody that the informant had suppressed the material facts. Chandu Chowkidar had received the information of the incident through a third person and he in a natural and straight forward manner, laid the same in the Police Station. Such type of argument in the given circumstances, has no relevance.

17. At the last leg of his argument, the learned counsel has contended that the appellant who is an old man of 89 years and a sick person did not deserve the imposition of death sentence. The offence was committed in the year 1954 when he was under the fit of rage and thereafter, he had to leave his home and hearth including wife and a child. He entered into a new order of life by embrassing Sikhism. He again married and was leading a peaceful normal family life. The death sentence was awarded five years ago and he has been lying ever since under threat of execution. He is made to suffer the most excruciating agony and anguish. This argument of the learned counsel has to be appreciated in the light of the rule as laid down by the Apex Court in Bachan Singh’s case, AIR 1980 SC 898 : (1980 Cri LJ 636). The matter again came up for consideration before the constitutional bench of the Apex Court when it had to deal with the case of Trivedi Ben v. State of Gujarat, AIR 1989 SC 1335 : (1990 Cri LJ 1810). While approving the guidelines indicated in Bachan Singh’s case which were ratified in Machhi Singh v. State of Punjab, AIR 1983 SC 957 : (1983 Cri LJ 1457), the propositions which had emerged were enumerated as under :-

(i) “The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In order to apply these guidelines inter alia the following questions may be asked and answered :

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?

If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so.”

18. Applying the above stated guidelines to the facts of the present case, it is gathered that the appellant had perpetuated the crime in a most fiendish and diabolical manner. On a trifling incident, he took away two precious lives of real brothers who at that time were at the prime of their youth. Their family members were made to suffer the mental, emotional and economical pangs and constraints throughout their lives. In order to satisfy his false ego, the appellant not only killed Kahan Singh but his real brother Chain Singh also who had done no harm to him at any point of time. This shows the depraved and savage moral fibre of the character of the appellant. His conduct had stolen the heart of law and he deserved the extreme penalty.

19. The mitigating circumstances in favour of the appellant are that the crime was committed 43 years ago and now he is getting his nemesis at an advanced age when his days are numbered. He cannot walk but was brought in the Court on crutches with the help of the attendants. It is also stated that he is suffering from many ailments including old age infirmities. He is incapable to be a danger to the orderly society. Rather, there is evidence that he had been leading a reformed family life. He had even become a member of Panchayat in village Ramnagar (U.P.). He has lived under the shadow of death from the date of impugned judgment (30-11-92). As between funeral fire and mental worry it is the latter which is more devastating. The balance sheet of aggravating and mitigating circumstances has thus been drawn and after according maximum weightage to the mitigating circumstances they are found to have spoken in favour of the appellant. In this view of the matter, the extreme penalty of death sentence be not inflicted on the appellant. The ends of justice will be served by commuting the death sentence to life imprisonment. Accordingly, the appeal is accepted to the limited extent that sentence of death awarded to the appellant is commuted to life imprisonment. Furthermore, the Jail Authorities shall take note of his advanced age and the present state of health. In case these factors weigh in giving some further concession to the appellant, as sympathetic view under law be taken. The accompanying reference No. 42/92 made by the learned trial Judge accordingly stands disposed of.

Order accordingly.

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