Sukhdev Singh @ Sukha Fauji vs State of Punjab

L.N. Mittal, J.—This is criminal appeal by convict Sukhdev Singh @ Sukha Fauji.

Prosecution case is that on 22.10.2003, Rajinder Kumar-complainant along with his cousin Inderjit was going from Zira to Ferozepur. At about

6.15pm, they reached near village Markhai. Two persons came on a motorcycle from behind them and overtook their scooter and signalled the

complainant to stop the scooter. When the complainant stopped the scooter, pillion rider of the motorcycle (subsequently identified as accused-

Appellant Sukhdev Singh @ Sukha Fauji) alighted from the motorcycle and asked the complainant and Inderjit to handover everything in their

possession along with key of the scooter and also threatened to shoot them dead in case of refusal. The complainant refused to handover the key

of the scooter. Thereupon, accused Sukhdev Singh took out pistol and fired a shot hitting the complainant on his right waist. The complainant and

his companion Inderjit raised alarm. Thereupon both the culprits fled away on their motorcycle. The complainant reported the matter to the police

on 23.10.2003 by making statement. Thereupon FIR was registered and investigated. The complainant was got medico-legally examined on

30.10.2003. One Jagtar Singh stated during investigation that Sukhdev Singh, Satnam Singh and Nirvair Singh had hatched conspiracy to commit

decoities and robberies to be committed by Sukhdev Singh and Satnam Singh. Accused Sukhdev Singh was in custody in some other case when

on 10.12.2003, his custody was obtained in this case and he was formally arrested in this case. Accused Sukhdev Singh refused to join test

identification parade. Accused Nirvair Singh was arrested later on. Accused Satnam Singh could not be arrested. He was since absconding. On

completion of the investigation, police presented report u/s 173 of the Code of Criminal Procedure (Cr.P.C.) for prosecution of Sukhdev Singh

and Nirvair Singh under Sections 307, 386 and 397 read with Section 511 and Section 120-B Indian Penal Code and Sections 25 and 27 of the

Arms Act whereas separate proceedings for arrest of Satnam Singh accused were going on.

Charge under Sections 307, 398 and 393 against Sukhdev Singh accused and u/s 120-B Indian Penal Code against Nirvair Singh accused was

framed. Both the accused pleaded not guilty and claimed trial.

nIn support of its case prosecution has examined six witnesses.

Rajinder Kumar-complainant PW-1 and Inderjit PW-2 both broadly stated according to prosecution version. Jagtar Singh PW-3 turned hostile

and was cross-examined by learned Public Prosecutor, but the witness denied the prosecution version.

SI Mukhtiar Singh PW-4 and ASI Inderjit Singh PW-5 stated about investigation of the case conducted by them.

Dr. Jaswinder Singh PW-6 stated about medico-legal examination of the complainant. There was a triangular wound caused by fire arm. There

was also a healed wound.

Both the accused in their examination u/s 313 Code of Criminal Procedure denied all the incriminating circumstances appearing against them in

the prosecution evidence and claimed to be innocent. No. evidence was lead by them in their defence.

Learned Additional Sessions Judge, Fast Track Court, Ferozepur vide impugned judgment dated 21.08.2004 convicted the accused Sukhdev

Singh u/s 393 read with Section 398 Indian Penal Code and u/s 307 Indian Penal Code and acquitted accused Nirvair Singh. After hearing the

parties on quantum of sentence, learned trial Judge vide impugned order of even date sentenced the convict Sukhdev Singh to undergo rigorous

imprisonment for 7 years and to pay fine of Rs. 1,000/-and in default thereof, to undergo further rigorous imprisonment for 3 months for each of

the two offences. Both the sentences were ordered to run concurrently. Feeling dissatisfied, convict Sukhdev Singh has filed the instant criminal

appeal.

I have heard learned Counsel for the parties and perused the case file with their assistance.

Learned Counsel for the Appellant vehemently contended that names of the accused were not mentioned in the FIR and it is not explained as

to how police come to know the names of the accused. It was also argued that the complainant in the witness box mentioned the name of accused

Sukhdev Singh but has not explained as to how he came to know his name. No. evidence has been led to depict as to who was owner of the

motorcycle used in the crime. It was also argued that pistol, the weapon of offence, was not recovered. It was also canvassed that the complainant

was medico-legally examined on 30.10.2003 i.e. after delay of seven days and there is No. evidence to depict that in the meantime, the

complainant obtained any treatment. Blood-stained clothes of the complainant, which were seized by the police, were not sent for chemical

examination nor there is any evidence to depict as to where the said clothes were deposited. It was also pointed out that nothing was taken away

by the culprits although they had ample opportunity to take away the complainant''s scooter and other articles including cash amount.

On the other hand, learned State counsel contended that all the prosecution witnesses have supported prosecution case. Statement of

complainant is corroborated by eye witness Inderjit PW-2. Their statements are further corroborated by blood-stained clothes of the complainant

and also by medical evidence.

I have carefully considered the rival contentions. On careful appraisal of the entire prosecution evidence, it emerges that the prosecution has

been successful in proving the guilt of the Appellant beyond reasonable doubt.

Rajinder Kumar-complainant PW-1 and eye witness Inderjit PW-2 have both stated according to prosecution version. They have also

identified the Appellant being the culprit, who committed the crime and who fired shot on the complainant. There is No. reason why they would

depose falsely against the Appellant or would implicate him in false case. Moreover, the Appellant after his arrest in the instant case was asked to

join test identification parade, but he refused to do so. Consequently, adverse inference would arise against the Appellant. In these circumstances,

identification of the Appellant in the trial Court during trial by the complainant and the eye witness would be sufficient to prove the guilt of the

Appellant. Statements of the complainant and the eye witness Inderjit are further corroborated by blood-stained clothes of the complainant. There

were also corresponding cuts in blood-stained shirt and banyan of the complainant. Their statements are also corroborated by medical evidence.

Testimony of Dr. Jaswinder Singh depicts that the complainant suffered fire arm injury. Thus the prosecution evidence is cogent and credible and is

sufficient to prove the guilt of the accused.

Obviously names of the culprits could not be mentioned in the FIR because they were not earlier known to the complainant and his companion.

However, names of both the accused as well as Satnam Singh cropped up in the statement of Jagtar Singh PW-3 recorded during investigation. It

is immaterial that Jagtar Singh turned hostile during trial. The prosecution has explained as to how names of the accused emerged during

investigation. Evidence regarding ownership of the motorcycle, used in the crime, could not be led, because number of the motorcycle was not

known. The complainant and his companion Inderjit could state the name of the Appellant during trial because he was facing trial and he was

identified by them in the Court. Pistol used in the the crime could not be recovered because the Appellant was arrested in this case on 10.12.2003,

i.e. about 2 months after the occurrence while the Appellant had already been arrested in some other case. In these circumstances, the pistol used

in the crime in the instant case could not possibly be recovered from the Appellant.

Mere delay in medico-legal examination of the complainant would not be sufficient to discard the entire evidence of the prosecution, which is

otherwise credit-worthy. Omission to send the clothes of the complainant for chemical examination would also not create any doubt about the

veracity of the prosecution case, because the blood-stained clothes of the complainant were seized by the police immediately after lodging of the

FIR. The said clothes also have corresponding cuts. The culprits could not succeed in taking away scooter of the complainant or anything else

because the complainant and his companion had raised alarm and therefore, the culprits fled away on apprehension of other persons being

attracted.

For the reasons aforesaid, I find that the prosecution has been successful in proving the guilt of the Appellant beyond reasonable doubt.

Accordingly, impugned judgment of conviction is affirmed. As regards quantum of sentence, Section 398 Indian Penal Code provides

imprisonment for not less than 7 years as the minimum sentence. The said minimum sentence has been awarded to the Appellant by the trial Court.

Consequently, the said sentence does not warrant reduction, being the minimum sentence for the aforesaid offence.

As a necessary corollary of the discussion aforesaid, I find No. merit in the instant criminal appeal, which is accordingly dismissed.