JUDGMENT

On the night intervening between 7th and 8th October, 1991 in the wee hours at about 12.30 in the midnight, some unknown persons who were stated to be armed with guns came over the roof of the house of Bhag Singh, ASI and attacked the inmates thereof by opening fire and killing six persons, Bhagwan Kaur, Gurmeet Singh, Darshan Singh and Parson Singh and another Gurmeet Singh and Sukhdev Singh, while Jit Singh and Manpreet Singh sustained serious injuries on account of bullet shots received by them. In addition, the marauders burnt the house, scooter and several other valuable articles.

2. On a report being made in the police station, investigation was taken up and a charge sheet was laid against three persons of offences under Section 302, 307, 436 IPC read with Section 3 of the TADA. However, Jaswant Singh, Sukhwinder Singh, the first two accused, could not be apprehended nor did they appear even after the court proclaimed them to be offenders. In their absence, the third accused, Karmajit Singh, alone was tried for the charges as stated earlier. The accused pleaded not guilty and claimed to be tried. Several witnesses were examined and statement under Section 313 Cr. P.C. was also recorded.

3. A careful perusal of the evidence on record clearly indicates that the incident, as alleged, did take place on the fateful night of 7th and 8th October, 1991, as a result of which, six persons were killed and others injured; that fire was set to the house and several other valuable articles were destroyed. These facts are also not seriously disputed in view of the abundant evidence on record in the shape of the testimony of members of the family of Bhag Singh, police witnesses and medical evidence.

4. The only evidence available to connect the accused with the alleged crime is the testimony of two witnesses, Ajit Singh, PW3 and Ramji, PW4. The learned Designated Judge has examined their evidence tendered in court and concluded as follows:

"... In this case, there are two eye witnesses to the occurrence. They are Ram Ji and Ajit Singh, PW3 and PW4. Both of them have narrated the prosecution story in their examination-in-chief and both of them have stated specifically that the accused now present in court, was one of those persons, who did the firing and both of these PWs have identified this accused as one of the assailants among several persons present in the house of the complainant....."

"...It is argued that these PWs cannot be relied upon as they did not disclose the fact of seeing the incident to any one else. This argument has no force because the statement of Ram Ji and this PW were recorded P.M. 8.10.1991 itself when the FIR was registered on the basis of the statement of Bhag Singh, which is Ex.PA....."

"....In the present case, accused was identified by the PWs and the identified him and on the basis of identification at the spot of occurrence, they identified him in the court also. In such situation, the absence of test identification parade will not be material..."

".....In the present case, PWs are definite that the present accused in the court was one of the assailants and so much so PW4 at the earliest gave the name of the present accused to the police in the statement recorded by it and that is why in the cross examination of PW4 a suggestion was made. "It is incorrect that the accused was not one of the assailants, who did the firing in your house". By this suggestion, in fact, what was narrated by this PW in the course of investigation, has been rather suggested to have been admitted by the opposite party."

"...In the present case, it is also note worthy that these PWs have no enmity of any kind with the accused so as to involve him falsely or implicate him in this case without any reason of basis. So these witnesses PW3 and PW4 in my opinion were the eye witnesses to the occurrence and they had properly identified the assailants and this is based on proper appreciation of their statements. Merely because the PWs did