IMPORTANT POINT
It would be unsafe to accept evidence of witness whose statement u/s 161 Cr.P.C. was recorded after 4½ months and there was no explanation for that delay.

Headnote:Indian Penal Code, 1860-Sections 302, 302/34, 397 r/w Section 3 of TADA-Deceased, head constable found in injured condition laying on road side on 22nd March 1991-He succumbed to injuries on 2nd May 1991-Conviction of appellants based on circumstance that deceased was last seen alive in company of appellants and dying declaration-Statement of two constables who deposed that deceased while on patrolling with them was taken away by appellants was recorded u/s 161 Cr.P.C. after about 4½ months-It is not safe to accept their evidence in absence of explanation fordelay-Dying declaration was recorded by SHO who admitted that deceased after making the statement became semi unconscious-Deceased had received pallet injuries on spinal Cord-It would be unsafe to accept evidence about dying declaration and to hold that deceased was in fit condition to make dying declaration-Conviction is unsustainable. (Paras 7 & 8)

JUDGMENT

S.P. Kurdukar, J.-This Criminal Appeal under Section 19 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short TADA ) is filed by the appellants accused challenging the legality and correctness of the impugned judgment and order of convictions dated 15th February, 1996 passed by Addl. Judge, Designated Court, District Jail, Nabha, under Sections 302/34 and 397 of the Indian Penal Code as also under Section 3 of TADA.

2. The prosecution story as unfolded at the trial is as under :-

Jagjit Singh, SHO (PW6) attached to the police station, Sadar, on 22-3-1991 was posted on patrolling duty in the jurisdiction of Bahadurgarh Town alongwith constables Mohinder Singh (PW 4), Sohan Singh and Madan Lal (PW 5). While they were on duty near the gate of Escort & Soetze Factory, Bahadurgarh, Paramjit Singh (A-1) and Satnam Singh (A-2) came there and told that they intended to have room on rent and for that purpose they requested Sukhdev Singh (since deceased) to accompany them so that they will have a drink and then find out the suitable room on rent. Saying so, according to the prosecution, both the accused and Sukhdev Singh left in the direction of Mandirwali Pulli. It is alleged by the prosecution that one gentleman on bicycle informed Mohinder Singh (PW 4) and Madan Lal (PW 5) who were on patrolling duty that a person in the police uniform was laying in an injured condition near Mandirwali Pulli. Thereafter, Jagjit Singh, SHO (PW 6) went to the place of occurrence and found Sukhdev Singh was lying with bleeding injuries. Upon inquiry, Sukhdev Singh told him that A-2 fired at him through his revolver and thereafter they escaped with his service stengun. The detailed statement of Sukhdev Singh (since deceased) was then recorded by Jagjit Singh, SHO (PW 6) and marked as Ex.PD/1. On the basis of this statement, a crime was registered under Sections 307/34 IPC; 3, 4, 5 and 6 of TADA and 25 of the Arms Act. Sukhdev Singh was then shifted to Rajendra Hospital, Patiala for medical treatment. During investigation, blood stained earth was collected from the spot in a small tin box and after sealing the same, it was sent to the Chemical Analyser. Sukhdev Singh, while in the hospital succumbed to his injuries on 2nd May, 1991. Dr. Jagjir Kumar (PW 9) carried out the post mortem examination and his report is at Ex. PB/1. It is noticed from the record that both the accused were arrested on 25th April, 1991 in another crime and were shown to have been arrested in the present crime on 28th April, 1991. After completing the investigation, both the accused were put up for trial for the offences punishable under Sections 302/307/382/394/397/34 of the Indian Penal Code as also under Section 25 of the Arms Act and under Sections 3, 4, 5 and 6 of TADA.

3. The appellants accused denied the accusations levelled against them and claimed to be tried. According to them, they have been falsely implicated because of enmity. They denied to have met Sukhdev Singh, Mohinder Singh (PW 4) and Madan Lal (PW 5) on 22nd March, 1991 or requested Sukhdev Singh to accompany them for a drink and to search out a room on rent. They pleaded that they are innocent and they be acquitted.

4. At the outset, it may be stated that the entire prosecution case rested on circumstantial evidence. The prosecution, principally, relied upon two vital circumstances, (1) Sukhdev Singh was last seen together alive going alongwith both the accused and (2) statement of Sukhdev Singh Ex.PD/1. In addition to the above, it also relied upon the evidence of formal witnesses and the medical evidence to prove the cause of death.

5. The Addl. Judge, Designated Court, on appraisal of oral and documentary evidence on record held that the prosecution proved both the vital circumstances mentioned hereinabove as also other circumstances which complete the chain of circumstantial evidence. Consistent with these findings, the Trial Court convicted A-2 under Section 302 of the Indian Penal C

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1996 Supreme(SC) 2116

IMPORTANT POINTIt would be unsafe to accept evidence of witness whose statement u/s 161 Cr.P.C. was recorded after 4½ months and there was no explanation for that delay.

IMPORTANT POINT
It would be unsafe to accept evidence of witness whose statement u/s 161 Cr.P.C. was recorded after 4½ months and there was no explanation for that delay.