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2023 DIGILAW 1961 (PNJ)

Sukhwinder Singh v. State of Punjab

2023-06-02

B.S.WALIA, LALIT BATRA

body2023
Prayer in this second application under Section 389 Cr.P.C. filed by applicant/appellant No.5-Jagtar Singh @ Tara son of Megh Singh, is for suspension of his remaining sentence. 2. Applicant/appellant No.5 has been convicted for the commission of offence punishable under Sections 302, 323 and 325 IPC read with Section 149 IPC and Section 30 of Arms Act and sentenced inter alia to undergo rigorous imprisonment for life with fine. 3. Learned senior counsel for applicant/appellant No.5 vehemently urged that allegedly on 19.08.2016 applicant/appellant No.5 alongwith co-accused while armed with deadly weapons constituted unlawful assembly and in prosecution of common object of said assembly committed murder of Bant Singh and Jagdev Singh and caused injuries on the persons of Nirbhai Singh and Jodha Singh and further permitted co-accused Malkiat Singh to use his licensed fire-arm (.315 bore rifle) in the commission of above said offence, however, there is no iota of truth in the above said allegations. Applicant/ appellant No.5 has been falsely implicated and wrongly convicted on the basis of evidence which is materially discrepant/deficient and does not satisfy the legal requirements. As a matter of fact, .315 bore rifle allegedly used by co-accused Malkiat Singh is licensed weapon registered in the name of co-accused Jagtar Singh son of Gurbachan Singh (since acquitted) and further the same was got recovered by said accused on 23.08.2016, as is evident from recovery memo (Ex.P-32), whereas applicant/appellant No.5 has no concern/nexus with the alleged fire-arm (.315 bore rifle) or recovery thereof. During investigation, police had also recovered Arms Licence of co-accused Jagtar Singh son of Gurbachan Singh and then Office of District Magistrate, Barnala, vide Memo No.1626 dated 15.09.2016 (Ex.P-49) had certified that said licence was issued in the name of Jagtar Singh son of Gurbachan Singh and besides .315 bore rifle, one .32 bore revolver was also registered on the said licence. He further urged that while dealing with the case of applicant/appellant No.5-Jagtar Singh son of Megh Singh, learned Trial Court had wrongly appreciated the above said factual position, whereas fire-arm (.315 bore rifle) belonged to co-accused Jagtar Singh son of Gurbachan Singh (since acquitted) and further the same was got recovered at the instance of Jagtar Singh son of Gurbachan Singh. Applicant/appellant No.5 has been wrongly held to be the licence holder of .315 bore rifle, which fire-arm was wrongly stated to be handed over by him to co-accused Malkiat Singh for the commission of offence in question. In this scenario, actual culprit-Jagtar Singh son of Gurbachan Singh was wrongly acquitted of said charge and as such criminal liability has been wrongly shifted upon applicant/appellant No.5. He further urged that allegedly one Baseball Bat was got recovered at the instance of applicant/appellant No.5, however, no injury either on the persons of Bant Singh (since deceased) and Jagdev Singh (since deceased) or on the persons of injured namely Nirbhai Singh and Jodha Singh was attributed to applicant/appellant No.5. Sentence of co-convicts namely Harjit Singh @ Jeet, Sukhwinder Singh and Megh Singh has already been suspended by this Court, vide order dated 25.04.2022 passed in CRM-12355-2022 in CRA-D-194-2021 (Annexure A-1) and order dated 28.02.2023 passed in CRM-45900-2022 and CRM-48272-2022 in CRA-D-199-2021 (Annexure A-2) respectively. Applicant/appellant No.5 is not involved in any other case except instant one. He further urged that applicant/appellant No.5 has already undergone actual custody of 02 years, 03 months and 04 days and since it will take time for final hearing of the main appeal, thus, he deserves the concession of suspension of his remaining sentence. 4. Learned State counsel assisted by learned counsel for the complainant while opposing instant application has vehemently argued that in view of gravity of offence and attributed role of applicant/appellant No.5 in the commission of offence, he does not deserve the concession of suspension of his remaining sentence. However, learned State counsel has conceded that as per Custody Certificate dated 25.05.2023, applicant/appellant No.5 has already undergone actual custody of 02 years, 03 months and 04 days. 5. We have heard learned counsel for the parties and carefully gone through the record of the case. 6. Keeping in view rival contentions, as discussed above, there are debatable issues as to the involvement of applicant/appellant No.5 in the case to be considered at the time of disposal of the appeal. Applicant/appellant No.5 has already undergone actual custody of 02 years, 03 months and 04 days. Sentence of co-convicts namely Harjit Singh @ Jeet, Sukhwinder Singh and Megh Singh has already been suspended by this Court. The appeal is not likely to be heard in the near future. Applicant/appellant No.5 has already undergone actual custody of 02 years, 03 months and 04 days. Sentence of co-convicts namely Harjit Singh @ Jeet, Sukhwinder Singh and Megh Singh has already been suspended by this Court. The appeal is not likely to be heard in the near future. Therefore, without commenting on the merits of the case lest it may prejudice the outcome of the appeal, we are inclined to accept the present application. 7. Accordingly, instant application is allowed and the remaining sentence of applicant/appellant No.5 is suspended during the pendency of the appeal. Applicant/appellant No.5- Jagtar Singh @ Tara son of Megh Singh is ordered to be released on bail subject to his furnishing personal bond and surety bond to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate, Barnala, as the case may be. Application allowed.