State of Punjab vs Tehal Singh and Another

S.D. Bajaj, J.—Father of Pehalwan Singh (now deceased) reported to ASI, Lachhman Singh of Police Station Sadar Ferozepur, at 7.40 p.m., on February 9, 1987 within the precincts of Civil Hospital, Ferozepore, that on February 9, 1987 around 4.30 p.m., while the marriage party of his son Mohinder Singh was in the house of Fauja Singh in village Jalalwala and the marriage of Mohinder Singh was being solemnised with the daughter of Fauja Singh, his youngest son Pehalwan Singh as also the photographer taken alongwith it by the marriage party developed an altercation with Tehal Singh and his son Sulla Singh both accused, over the taking of photographs of the bride and the bridegroom together as also of other relations attending the marriage; whereupon Tehal Singh gave a Lalkara that both of them viz Pehalwan Singh and the photographer should be taught a lesson for departing from the settled practice in this regard amongst Rai Sikhs of the area and his son Sulla Singh took out a Sota and gave a blow with it on the head of Pehalwan Singh which proved fatal. In the course of investigation, it transpired that there had been a melee at the time when Pehalwan Singh (now deceased) sustained the head injury and that the fatal blow on the head of Pehalwan Singh was given by Amir Singh and not by Sulla Singh.

On being charged with the commission of the offence u/s 302 of the Indian Penal Code in the alternative both Sulla Singh and Amir Singh and in respect of the charge u/s 302 read with Section 34 of the Indian Penal Code their co-accused Tehal Singh, all of the three, pleaded ''not guilty'' thereto and claimed to be tried.

Learned trial Court acquitted Amir Singh accused on October 30, 1987 because the prosecution had not produced any inculpatory evidence against him in the course of trial, Even his statement u/s 313 of the Criminal Procedure Code was also not recorded on that score. Vide its impugned judgment dated, December 12, 1987, learned trial Court acquitted the remaining two accused as well by giving the benefit of doubt. Feeling aggrieved from the impugned judgment dated December 12, 1987 of the learned trial Court the State of Punjab has filed Criminal Appeal No. 268-DBA of 1988 in this Court.

We have heard Shri Randhir Singh, A.A.G. Punjab for the appellant State Shn R. S. Ghai, Senior Advocate with Sarv Shri Vinod Ghai and P. B. Santoshi, Advocates, for the respondents and have perused the entire relevant material on record very carefully.

Tehal Singh accused is attributed only Lalkara In terms of the observations made in Fatta v. Emperor A. I. R. 1931 Lah. 63 , Garib Singh and Others Vs. State of Punjab, , Amar Singh Vs. State on Haryana, and Jainul Haque Vs. State of Bihar, , it was difficult, well nigh impossible for the learned trial court to convict him of the constructive liability for murder on the basis of Lalkara allegedly raised by him. The relevant observations read :--

"Allegations of participation by giving lalkara are sometimes made only to show additional overt acts so as to take in at least five persons and make out the ingredients of an offence u/s 149 IPC against all of them

If the appellant had shouted Lalkara, it would be difficult to sustain the conviction

The evidence of exhortation is, in the nature of things a weak piece of evidence. There is quite often tendency to implicate some person, in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim Unless the evidence in this respect be clear, cogent and reliable no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. The evidence adduced at the trial in respect of the part alleged to have been played by the appellant is contributory and far from convincing The appeal was accepted and the conviction was set aside When the prosecution are unable to prove satisfactorily the intention or knowledge of an accused person they generally ascribe to him certain words which he is supposed to have spoken in order to supply the missing proof. This method is more often adopted in cases in which a certain person is sought to be punished for the constructive liability as regards the commission of crime of violence. It is highly unlikely that the accused would be so foolish as to proclaim his intentions before committing the attack as by doing so he was sure to be thwarted by the person present."

Finding of acquittal recorded by the learned trial Court qua him is therefore, affirmed.

Regarding co-accused Sulla Singh, the investigating agency was itself in doubt as to whether fatal blow (solitary injury) on the head of the deceased Pehalwan Singh was given by him or Amir Singh accused charged for murder in the alternative. In the course of his statement u/s 313 of the Criminal Procedure Code Sulla Singh accused stated, "I am innocent. Prosecution witnesses have named me and my father as accused in the case because they did not know anyone else from the bride side." Investigating agency itself being in doubt as to who amongst Sulla Singh and Amir Singh the two accused charged in the alternative for the murder of Pehalwan Singh deceased at the trial was infact guilty, there was no alternative for the learned trial Court except to give accused Sulla Singh, the benefit of doubt; more so when the prosecution witnesses had themselves admitted a melee before the occurrence when photographer on the insistence of Pehalwan Singh (now deceased) started taking photographs of the girls sitting around Tandoor for baking Chapatis to be served to the marriage party, wherein tables, chairs and a part of the Shamiana collapsed and Pehalwan Singh (now deceased) sustained the fatal injury, in this view of the matter, the finding of ''not guilty'' returned by the learned trial Court qua accused Sulla Singh is also affirmed.

In terms of the Supreme Court observations in Bhagwati and Others Vs. The State of Uttar Pradesh, , failure of the prosecution to examine the most material witness in photographer accompanying the marriage party before the learned trial Court persuades us to reject the deposition of all other witnesses examined in the case. The relevant observations read :-

"That every witness mentioned in F. I. R. must be examined by the prosecution in all circumstances and that the failure to do so would lead to the rejection of the evidence of all others."

In result the criminal appeal against acquittal of the two accused filed by the State of Punjab gets completely bereft of any merit therein and is consequently dismissed.