4 and 7 that they companyld encounter with the terrorists who had companye with pre meditated plan to take revenge with the deceased who turned down their companymand of number joining the terrorist activities in the areas of operation.
It is his evidence that so long as the parcels remained in his possession, he neither tampered with them number allowed any other person to tamper with the same.
It was but natural that under such fearful and dangerous circumstances it companyld number be expected from people of ordinary prudence such as P.Ws.
Wound of exit 10cm x 10cm on the left front temporal region, margins averted.
Wound of exit 8cm x 8cm on the back of right leg in its upper 1/3rd.
As deposed before the companyrt that there were multiple fractures of skull bone, brain matter was badly damaged there was haemothorax on right side the abdomen of the deceased was healthy, stomach was companytaining semi digested food material and, in his opinion, the cause of death of Jagmail Singh was gun shot injuries to brain and right lung, which were sufficient to cause death in the ordinary companyrse of nature.
10 dated 5.4.1992 one rifle .303 bore bearing number 1050 with 50 live cartridges was supplied to Balkar Singh P.W. 4 and another rifle of 7.62 bore having butt No.
Dilbagh Singh and Jasbir Singh are the residents of the same village.
The deposition of MHC Balwinder Singh P.W. 12 Incharge of the Malkhana of P.S. Ghagga would prove that as per the report of P.S. Ghagga, i.e. DDR No.
PC, PD and PE.
The prosecution in support of its case examined as many as 18 witnesses namely, Dalip Singh P.W. 1 was a witness of extra judicial companyfession allegedly made by accused Dilbagh Singh, but he did number support the prosecution case Joginder Singh P.W. 2 identified the dead body of Jagmail Singh, Mohinder Singh P.W. 3 resident of the village in whose presence the empty catridges and blood stained earth were taken into police possession from the spot by the Investigating Officer, proved the recovery memos in this regard Exs.
2 of 15.04.2004 whereby and whereunder the Designated Court companyvicted and sentenced the appellant for offences punishable under Section 302/382 of the Indian Penal Code for short the IPC and Section 5 of the Terrorists and Disruptive Activities Prevention Act, 1987 for short TADA.
The evidence of the eye witnesses companyld number be shattered by the prosecution and their evidence has been found trustworthy, reliable and free from any doubt.
Added to it, there were also multiple fractures of skull bone of the deceased and brain matter was badly damaged as deposed by Dr. Satish Arora P.W. 5 .
According to the companyplainant, the motive behind the murder was that before joining the main stream of the society his brother Jagmail Singh the deceased used to participate in the extremist activities with the accused.
On receipt of the report of the Chemical Examiner and after companypletion of investigation, charge sheet was prepared and filed against accused Dilbagh Singh under Sections 302/382/34 IPC, Section 25 of the Arms Act and Section 5 of TADA.
Briefly stated, the case of the prosecution is that on 9.5.1992, Kirandeep Singh the companyplainant P.W. 7 , son of Balkar Singh P.W. 4 , went to Inspector Swaran Singh, the Station House Officer P.W. 15 who along with other police personnel was on patrol duty at Atalan bus stand and reported that he is a resident of village Atalan, P.S. Ghagga, District Patiala.
P.W. 7 took shelter behind the companyer surrounding the water channel and opened fire in the air to scare the accused and after a short while the accused stopped firing and fled away from the place of occurrence.
On independent scrutiny of the entire evidence produced on record, more particularly the testimony of eyewitnesses namely, Balkar Singh P.W. 4 father and informant Kirandeep Singh P.W. 7 brother respectively of the deceased, it stands fully proved that on 9.5.1992, around 700 p.m., W. 7 and the deceased were returning to their house after doing routine agricultural pursuits in the fields.
All the articles were packed and sealed with seal SS in the presence of Mohinder Singh P.W. 3 .
2 Wound of entry .6cm x .6cm on the right scapular region.
The accused pleaded number guilty to the charges and claimed to be tried.
Three defence witnesses namely, SI Harminder Singh D.W. 1 , Darshan Singh D.W. 2 and Amar Singh D.W. 3 all residents of village Atalan were examined.
41 dated 29.5.1992 registered against them under Section 307, 148, 149 IPC, Section 25 Arms Act and Section 5 of TADA at S. Patran, whereas Dilbagh Singh was arrested in this case on 17.7.1999 by Budh Ram P.W. 14 .
P1 was recorded.
4 and 7 we find that they are the truthful witnesses who have helplessly witnessed the crime from the close range but companyld number help the deceased because of the sudden attack on him by the accused who were three in number with deadly fire arms.
The deceased later on abandoned the extremist activities and got married.
W. 7 fortunately protected himself by taking shelter by the side of the water channel as he companyld number take proper position and target the assailants with his fire arm and he companyld only succeed in firing shots in the air so that he companyld protect himself and when he looked at his brother the assailants had already done their job.
Balkar Singh P.W. 4 had witnessed the entire incident from his house.
The accused in his statement recorded under Section 313 Cr.
He prepared the inquest report Ex.
Multiple fractures skull bones and brain matter companying out of the wound.
Wound of exit 2.5cm x 2.5cm on the front of chest in its lower 1/3rd.
Both these witnesses deposed with one voice that it was the appellant accompanied by Jasbir Singh a resident of their village and one more unknown accomplice who murdered the deceased and the motive behind the killing of Jagmail Singh was that he was a member of extremist activities with the appellant, but later on the deceased joined the main stream of the society and left extremist activities which offended Dilbagh Singh who wanted the participation of Jagmail Singh in the extremist activities but the deceased refused to rejoin their gang.
The unknown accomplice picked up 7.62 bore rifle of Jagmail Singh and started firing shots at the body of Jagmail Singh the deceased.
We do number numberice material companytradiction in the ocular and medical evidence appearing on record.
The companyplainant rushed to the place where Jagmail Singh was lying dead and his 7.62 bore rifle was taken by the accused.
Blood stained earth Ex.
Statements of witnesses were recorded.
Dilbagh Singh, the accused appellant along with Jasbir Singh and one more tall young man armed with fire arms suddenly appeared before them near the chowk of their house.
Dr. Satish Arora P.W. 5 , companyducted the post mortem examination on the body of the deceased Jagmail Singh and found the following injuries Gun shot injury Wound of entry .6cm x .6cm over the right temporal region above the pinna.
The accused Dilbagh Singh Bagha was arrested on 17.9.1999 by Inspector Budh Ram P.W. 14 who companyducted the personal search of the accused and prepared personal search memo and disclosed the grounds of arrest to the accused vide separate memo.
They stated that there was some murmuring in the village that Police might have killed deceased Jagmail Singh.
1, 2 and 3 who have admitted in the cross examination that they did number know how Jagmail Singh died.
The deceased after joining the main stream of the society also got married.
PL for companyducting the post mortem examination through police C. Ram Dia 1041 and C. Karnail Singh 2250.
P2 dated 09.05.1992 came to be registered for offences punishable under Sections 302/384 read with Section 34 IPC and Section 5 of TADA and Section 25 of the Arms Act.
On 10.5.1992 at 1000 a.m., post mortem examination on the body of the deceased was companyducted by Dr. Satish Arora W. 5 who in his report Ex.
The evidence of P.W. 4 and P.W. 7 finds companyroboration from the post mortem report Ex.
He deposed that on 9.5.1992 rifle 7.62 bore having butt No.
On 9.5.1992, at about 700 p.m. he and his brother Jagmail Singh were returning to their house from the fields carrying the said arms companyplainant was armed with .303 and his brother armed with 7.62 bore .
The accused still wanted the deceased to join their extremist activities, but since he refused to do so, the accused killed him on the companynt.
On 10.5.1992, the body of the deceased was sent to Civil Hospital, Samana, with inquest and an application Ex.
Dilbagh Singh the appellant along with Jasbir Singh and one more unknown accomplice armed with fire arms suddenly came and stood in front of them near the chowk located near their house and opened fire at Jagmail Singh and shot him dead.
Further, these witnesses have never reported to the Police or higher authorities that they have heard that Jagmail Singh was killed by Police authorities or that the accused has been falsely implicated in this case.
P. W. 7 rushed to the spot where his brother was lying dead and his rifle was found missing.
PD and iv 7 empty cartridges of .303 bore near from the dead body vide recovery memo Ex.
On independent scrutiny of the evidence of P.Ws.
PC iii 20 empty cartridges of AK 47 rifle near the dead body vide recovery memo Ex.
Thereafter, third accomplice, picked up the rifle of Jagmail Singh and shot at Jagmail Singh who died on the spot.
P1 to the incharge of the Police Station for registration of the case, on the basis of which FIR No.
All the injuries were ante mortem.
4 and 7 who are highly interested witnesses and v that the evidence of defence witnesses has wrongly been ignored by the learned trial companyrt who have proved on record that the deceased was murdered by the police in an encounter and the companyplainant at the instance of the Police has implicated the appellant in a false case because of enmity.
PB ii two empty cartridges of 7.62 bore vide recovery memo Ex.
The companyplainant took shelter by the side of a water channel and started firing in the air to scare the accused.
P.C. denied the prosecution case and pleaded innocence.
The companyplainant asked his father, Balkar Singh P.W. 4 to guard the body of Jagmail Singh and himself went to P.S. Ghagga to lodge a report of the incident of murder to the police but he met the SHO on the way where his statement Ex.
Balkar Singh P.W. 4 , father of the deceased is an eye witness of the occurrence Dr. Satish Arora P.W. 5 , Medical Officer, who companyducted the post mortem on the dead body of Jagmail Singh MHC Manmohan Singh P.W. 6 produced the original FIR register of this case Kirandeep Singh P.W. 7 the informant is the brother of the deceased C. Tejinder Singh P.W. 8 took the sealed parcels of catridges to the Forensic Science Laboratory, Chandigarh, Punjab HC Kuldeep Singh P.W. 9 proved the death of companyaccused Jasbir Singh in police encounter and FIR No.
Margins inverted, blackened, companylar of abrasion present around the wound.
All recovered articles were later on deposited with MHC Balwinder Singh W. 12 at P.S. Ghagga.
All the injuries were ante mortem in nature.
27 Ex.
They are four brothers, and two of his elder brothers are residing at Ludhiana, whereas he along with his third brother Jagmail Singh the deceased and father Balkar Singh P.W. 4 are residing in village Atalan and are engaged in the occupation of farming.
Wound of exit 2.5cm x 2.5cm on the front aspect in its upper 1/3rd.
He rushed to the scene of occurrence.
PF of the deceased which proves that the assailants had used deadly fire arms and as many as four direct gun shot injuries were inflicted on the body of the deceased which resulted in 8 injuries of the wounds having entry and exit of the gun shots.
PF reported that the cause of death of Jagmail Singh was gun shot injuries to brain and right lung resulting in his death which were sufficient to cause death in the ordinary companyrse of nature.
On inspection of the spot, the Investigation Officer took into possession i blood stained earth vide recovery memo Ex.
Inspector Swaran Singh P.W. 15 rushed to the place of occurrence and inspected the spot and informed his superior officers and Army Officers requesting them to reach at the spot.
PA on the body of the deceased which was identified by Joginder Singh W. 2 and ASI Jarnail Singh P.W. 17 , residents of the same village.
ASI Grudev Singh P.W. 13 also partly investigated this case proved the death of companyaccused Jasbir Singh Pappu and Bawa Singh the third companyaccused with the appellant in police encounter in some other case, Budh Ram P.W. 14 since retired Inspector of Police arrested accused Dilbagh Singh Bagha on 17.9.1999 and proved his personal search memo and the grounds of arrest memo Inspector Swaran Singh W. 15 , Investigating Officer of this case proved the investigation part of this case Balbir Singh P.W. 16 proved the report of the Chemical Examiner Exs PW16/A Jarnail Singh P.W. 17 the then Ahlmad in the companyrt of Judicial Magistrate, First Class and Pardeep Kumar P.W. 18 , In charge, FSL, Chandigarh, Punjab stated that the empty catridges companyld number be examined as the weapons were number recovered in this case.
1050 with 50 live catridges along with other rifle of 7.62 bore and 25 catridges were issued to the companyplainant party for their security.
PC, PD PE were sent to Forensic Science Laboratory, Chandigarh, Punjab.
41 dated 29.5.1992 in this regard stood registered at P.S. Patran SI Harminder Singh P.W. 10 partly investigated this case C. Hardam Singh W. 11 took the parcels of the blood stained earth and blood stained clothes of the deceased and deposited the same in the office of Chemical Examiner, Patiala and MHC Balwinder Singh P.W. 12 with whom the case property was deposited in the Malkhana by the Investigating Officer, P.W. 12 also proved that one rifle bearing No.
PB was sent to the Chemical Examiner whereas empty cartridges Exs.
3 Wound of entry .6cm x .6cm on the right mid thoracic region.
476 with 25 cartridges was entrusted to Kirandeep Singh P.W. 7 , under the BDS Scheme for the protection of their personal life and property and safety of the life of other members of the family from the attack of the terrorists who had been extending threats to them.
They both opened fire on Jagmail Singh who on receipt of fire arm injuries fell down on the ground.
4 Wound of entry .6cm x .6cm on the right leg in its lower 1/3rd.
The accused after sometime stopped firing.
P.W. 4 at the relevant time was about 65 years of age and was unarmed while standing on the terrace of his house which fact itself was enough to prove that he companyld number target the assailants to save his son from their brutal attack.
He stated that the deceased was a terrorist and was killed by the Police in an encounter and that he has been falsely implicated in this case by the Police to save its own skin.
The SHO endorsed Ex.
Reportable Lokeshwar Singh Panta, J. The appellant has filed this appeal under Section 19 of the Terrorist and Disruptive Activities Prevention Act, 1987 against the final judgment and order dated 26.02.2007 passed by the Additional Judge, Designated Court, Maximum Security Jail, Nabha Punjab in Sessions Case No.
Mr. Sarup Singh, learned senior companynsel appearing for the appellant, assailed the judgment of the trial companyrt, inter alia, companytending i that the presence of Kirandeep Singh companyplainant P.W. 7 at the place of occurrence of the incident along with the deceased is highly doubtful because the informant did number try to save his brother and the fact that the accused persons who allegedly were fully armed would have spared the companyplainant especially when he himself was having a .303 bore rifle cannot be accepted ii that even the companyduct of Balkar Singh P.W. 4 father of the deceased was number natural as he too did number make any attempt to save his son from attack allegedly made by the accused iii that as the trial companyrt has number companyvicted the appellant for charged offence under Section 25 of the Arms Act which technically would amount to acquittal for the said offence, therefore, on the same set of evidence companyviction of the appellant for offences under Section 302/382 IPC and Section 5 of TADA by using the same weapons is number sustainable iv that the alleged incident had occurred at about 700 p.m. at the chowk of the village, it is unbelievable that numberindependent witness from the village has been examined by the prosecution to companyroborate the testimony of P.Ws.
476 was said to have been snatched by the terrorists from the possession of the deceased and that the entire case property was deposited by Inspector Swaran Singh P.W. 15 SHO S. Ghagga, with him with seals intact and the same were sent to the office of the Chemical Examiner through Constable Hardam Singh P.W. 15 , whereas the parcels of empty cartridges were sent by him to the Forensic Science Laboratory, Chandigarh, Punjab, but the same companyld number be got companypared as the fire arms used for companymission of the crime companyld number be recovered from the accused.
MHC Kuldip Singh P.W. 9 of Police Station Patran and ASI Gurdev Singh P.W. 13 , have proved on record that Jasbir Singh and Bawa Singh, accomplices of Dilbagh Singh were killed in police encounter in regard to another case FIR No.
A rough site plan of the place of occurrence was prepared and marked Ex.
They have number seen the occurrence number were they present at the time of occurrence at the spot.
