AMARJIT SINGH v.

STATE OF HARYANA (Criminal Appeal No.739 of 2007)

NOVEMBER 18, 2009* [Harjit Singh Bedi and Dr. B.S. Chauhan, JJ.]

2010 (1) SCR 572

The following Order of the Court was delivered

ORDER

1. These appeals by way of special leave arise out of the following facts:-

1.1. Avatar Singh, accused, since acquitted, had taken an unauthorised  

connection from the electricity main line for the purpose of energising his tube  

well  situated  in  village  Bassi  about  12  kms.  away  from  Police  Station  

Assandh.  On  2nd  July  1998,  the  officials  of  the  Electricity  Department  

accompanied by some police officers came to the tube well and removed the  

unauthorised  line  and  took  the  wire  away.  Avatar  Singh  suspected  that  

Joginder Singh P.W.1, who had a Dera at a very short distance away, had  

made the complaint to the Department which had brought the officers of the  

Department to his Dera. Due to this grudge, Amarjit Singh armed with a shot  

gun, Amrik Singh and Kashmir Singh all sons of Jarnail Singh attempted to  

stop the tractor trolley belonging to Joginder Singh P.W.1, while it was being  

driven to the fields with fertilizer.  Nishan Singh – P.W. 3 son of Mohinder  

Singh was driving the tractor trolley of Joginder Singh was also accompanied  

by  Palaram -  P.W.  2  son  of  Fakiria  one  of  Joginder  Singh's  Siris  (crop-

sharers). It appears that as a fall out of this incident two applications were  

filed in Police Station, Assandh by both the groups accusing each other of  

having  misbehaved in  the  morning.  The same evening at  about  4:00p.m.  

Joginder Singh – P.W. and his brother Gurnam Singh deceased who were  

present at their Dera in their fields. In the meanwhile Avatar Singh armed with  

a sota,  Sher  Singh and Amarjit  Singh armed with  a DBBL gun each and

Avatar Singh with gandasa came to the place in a tractor. On reaching the  

Dera, Sher Singh fired a shot with a DBBL gun on Joginder Singh hitting him  

on the finger of his right hand and a second shot hit him on his right thigh.  

Amarjit Singh also fired a shot at Gurnam Singh which hit him on his chest  

instantly resulting in his immediate death. Although Joginder Singh thereafter  

attempted to snatch the gun from the hands of Sher Singh as a result  of  

which, it broke into two pieces. This incident was witnessed by P.W. 2 Pala  

Ram and Nishan Singh – P.W. 3. Joginder Singh was removed in a tractor-

trolley  to  the  Sant  Hospital  at  Assandh  and  on  account  of  his  serious  

condition  was  referred  to  the  General  Hospital,  Karnal  and  was  admitted  

therein. The dead body of Gurnam Singh was, however, left at the place of  

incident. Joginder Singh's statement, Exhibit PA was recorded in the General  

Hospital, Karnal at about 9:15a.m. on the 4th July, 1998 and on its basis, the  

formal FIR was registered at Police Station, Assandh, at 10:30a.m. by Sube  

Singh – P.W. 5, Inspector of Police. The police after investigation did not file a  

charge sheet against the accused on the plea that the case that had been  

foisted on them was false. Joginder Singh thereupon filed a complaint Exhibit  

PC in the court of the Judicial Magistrate, Karnal, against Avtar Singh, Sher  

Singh, Amarjit Singh, Amrik Singh and Kashmir Singh for offences punishable  

under  Sections  302/307/148/149 IPC on 16th  July,  1998.  At  the  trial,  the  

prosecution in support of its case, relied on the evidence of Joginder Singh –  

P.W. 1, an injured witness, Pala Ram – P.W. 2, Nishan Singh – P.W. 3 who  

was an associate of the complainants, Dr. Raj Kumar - P.W. 4, Ram Kumar –  

P.W.  5,  Dr.  Shyam Wadhwa _  P.W.  6  who had  carried  out  the  medical  

examination  of  Joginder  Singh  and  the  post  mortem  on  the  dead  body,  

Naveen Kumar – P.W. 7 and S.K. Makkar – P.W. 8. The defendants also  

produced 7 witnesses in defence including Dr. Raj Kumar (earlier P.W. 4 now  

as D.W. 1) to depose that he had examined one Gurlal Singh on 4th July,  

1998  at  6:45p.m.  in  Primary  Health  Centre,  Assandh and  had  found  him  

seriously injured with a dislocation of the teeth and a fracture of the mandible,

Sahab Singh – D.W. 2 to prove the alibi on Sher Singh, ASI Surjeet Singh –  

D.W. 3 who deposed with regard to the two applications which were said to  

have been filed by the warring parties  on the 3rd of  July,  1998 after  the  

incident  early  that  morning  Inspector  Prem  Singh  –  D.W.  5  who  had  

investigated the murder and deposed that on investigation it had been found  

that the case was false and as a consequence thereof a challan had not been  

filed against the accused who are now facing prosecution on account of the  

complaint and D.W. 6 – Gurlal Singh the injured witness who stated that he  

along with some of the accused had been present in the police station till  

about 3:00p.m. on the 3rd July, 1995 but on the directions of his father, he  

had decided to return home to look after the cattle taking his father's gun  

along with him and as he was on his way to the Dera, he saw Joginder Singh  

and Gurnam Singh standing outside armed with lathis and that as he had got  

down from the tractor he had been assaulted by them which resulted in the  

breaking of his teeth and mandible and that at this stage he had picked up the  

gun from the tractor and shot at Gurnam Singh and Joginder Singh in his self-

defence.  He further  stated that  notwithstanding the injuries caused to him  

Joginder Singh went on wielding lathi blows breaking the gun into two pieces.  

He further stated that after this incident he had reached the police station  

Assandh  on  his  tractor  and  reported  the  matter  to  the  police  and  had  

ultimately  been  sent  to  the  Primary  Health  Centre  for  his  medico-legal  

examination.  He  further  stated  that  he  had  been  referred  to  the  General  

Hospital,  Karnal  and  further  to  the  Post  Graduate  Institute  of  Medical  

Education  and  Research,  Rohtak  on  account  of  his  serious  injuries.  The  

defence also produced D.W. 8 – Dr. Munish Madan, a Lecturer in the Dental  

College of the Post Graduate Institute of Medical Education and Research,  

Rohtak, who confirmed the existence of very serious injuries to the teeth and  

mandible of Gurlal  Singh and that he had been treated in the Institute for  

about 2 months.

1.2. The trial court, however, relying on the evidence of P.Ws.1, 2 and 3  

convicted all the accused under Section 302/149 etc. and sentenced them to  

undergo  a  sentence  of  life  imprisonment  for  murder  etc.  In  reaching  its  

conclusions, the trial court observed that not only was the prosecution story  

as given by the complainants fully proved on facts but the defence version  

given by Gurlal Singh was not worthy of belief for the primary reason that it  

was impossible to come to a firm conclusion with regard to the fact that the  

injuries  had  been  suffered  by  Joginder  Singh,  Gurnam  Singh  and  Gurlal  

Singh in the same incident and the defence story that Gurlal Singh had fired  

two shots in self-defence causing a fatal injury to Gurnam Singh and serious  

injuries  to  Joginder  Singh  could  not  be  believed  as  Gurlal  Singh  was  

physically  handicapped  and  was,  therefore,  not  in  a  position  to  use  his  

weapon in an effective manner. The trial court also concluded the story given  

by him that the gun that he had used had been broken on a persistent attack  

by the opposite party could not be believed as the injuries caused to him were  

so severe which precluded the possibility that he could not have caused the  

injuries to Joginder Singh and Gurnam Singh thereafter. The trial court also  

rejected the alibi set forth on behalf of Sher Singh as the evidence was not  

conclusive and it  was possible that  Sher Singh could have committed the  

crime and then rushed to Ghannori, his place of posting which was only about  

17 kms. away. The trial court, accordingly, accepted the prosecution version  

in toto.

1.3. The matter was thereafter taken in appeal by all the accused before  

the  High  Court.  The  High  Court  made  very  significant  observations  

completely upsetting the conclusions drawn by the trial court and whereas the  

trial court had expressed its doubt as to the presence of Gurlal Singh at the  

place of the murder and as to the manner under which the injuries had been  

suffered by him, the High Court gave a conclusive finding that Gurlal Singh  

had been present at the place of occurrence and had received injuries in the  

incident in which Gurnam Singh had been killed. The High Court, however,

accepted the evidence of P.Ws. 1,2 and 3 and rejected the circumstantial  

evidence with regard to the breaking of the weapon as propounded by the  

defence and observed that in such matters the possibility of false implication  

could not be ruled. The Court then dissected the evidence yet  further and  

held that the presence of Avtar Singh, Amrik Singh and Kashmir Singh had to  

be ruled out whereas Amarjeet Singh and Sher Singh had undoubtedly been  

present as they were the ones who had caused the injuries to Gurnam Singh  

and  Joginder  Singh.  The  appeal  qua  the  first  three  was  allowed  and  

dismissed qua the last two It is in this situation that the matter is before us  

after the grant of special leave.

2. Several arguments have been raised by Mr. R.S. Cheema and Mr. K.B.  

Sinha, the learned senior counsel for the appellants. It has been argued that  

the fact that some incident had happened on the morning of 2nd July was  

clear from the statements - Exhibits DE and DD, the two applications that had  

been filed by the two warring parties in the police station. It has also been  

submitted that the fact that Amarjeet Singh was indeed in the police station in  

the  evening  had  been  found  correct  to  be  in  the  investigation  made  by  

Inspector Prem Singh DW 5 and it  was on that basis that the prosecuting  

agency had declined to file a challan against the accused. It has further been  

pleaded that there was absolutely no reason whatsoever as to why the alibi  

given by Sher Singh appellant  duly supported by some of  the staff  in the  

PSEB office where he stood posted and was residing with  his family had  

been disbelieved as he had been present in the morning at 7:30a.m. on the  

day of the incident and again at about 3:30p.m. the same afternoon and that it  

would have been impossible for him to have visited village Bassi, committed  

the murder and returned to his place of posting at village Ghannori 17 kms.  

away. It has finally been submitted that in any case there was absolutely no  

explanation for the injuries that had been suffered by Gurlal Singh and as this  

onus had not been discharged by the prosecution an inference could rightly  

be  drawn  that  the  defence  version  was  the  correct  one.  For  the  last

submission, Mr. Cheema has placed reliance on  Lakshmi Singh v. State of   

Bihar (1976) 4 SCC 394.  

3.  Mr.  Roopansh  Purohit,  the  learned  State  counsel  has,  however,  

pointed out that there was absolutely no reason to disbelieve the statement of  

the  three  prosecution  witnesses,  more  particularly,  for  the  reason  that  

Joginder Singh had been injured and P.W. 2 Pala Ram was an independent  

witness. He has further submitted that there was no evidence to suggest that  

Gurlal Singh had suffered the injuries in the same incident in which Gurmnam  

Singh had been killed and Joginder Singh had been injured as there was no  

contemporaneous record to show this fact and further that Gurlal Singh had  

made absolutely no effort to make a statement to the police giving his version  

of the events or after he had reached Assandh on 3rd July, 1998 at 6:20p.m.  

It has further been pleaded that Gurlal Singh was a handicapped person and  

it  would  not  have  been  impossible  for  him  to  have  fired  two  shots  as  

suggested by him in his defence.

4. We have heard the learned counsel for the parties in extenso and gone  

through the record as well.

5.  To our  mind,  the basic  issue which would arise in this  case is the  

inference that is to be drawn from the non-explanation of the injuries of Gurlal  

Singh.  He had first  been examined by Dr.  Rajinder Kumar,  D.W. 1 of the  

C.H.C., Assandh on 3rd July, 1998 at 6:45p.m. And had found the following  

injuries:-

“2 upper incisors were missing and fresh bleeding was present from  

the  sockets  mucosa  was  congested  and  the  lower  jaw  teeth  were  

malaligned and were bleeding.”

6.  He  further  deposed  that  the  injuries  were  subject  to  x-ray  at  the  

General Hospital, Karnal at 9:00a.m. on 4th October, 1998 and the mandible  

was  found  fractured  and  the  injuries  were  all  grievous  in  nature.  This  

evidence is  further  reinforced by the statement  of  D.W. -  8  – Dr.  Munish

Madan of the Post Graduate Institute of Medical Education and Research,  

Rohtak, who yet again deposed to the very serious nature of injuries of Gurlal  

Singh. The learned counsel for the State has, however, referred to the fact  

that the trial court was somewhat uncertain about Gurlal Singh's presence at  

the place of incident but on the contrary we find that the High Court has given  

a positive finding (contradicting the trial court) that Gurlal Singh was indeed  

present  at  the  site  of  murder.  We  are,  therefore,  of  the  opinion  that  an  

obligation lay on the prosecution to explain as to how Gurlal Singh received  

such  serious  injuries.  It  will  be  seen  that  P.Ws.  1,  2  and  3  have  been  

categoric in denying any injury to Gurlal and P.W. - Joginder Singh went so  

far as to deny Gurlal Singh's place of residence although he was living with  

his father in a Dera only half a kilometre away from his own Dera. P.W. 3 –  

Nishan Singh, on the other hand, admitted that Gurlal Singh was a resident of  

the Dera but he denied that any injury had been suffered by him. It is true, as  

contended by the learned State counsel, that every injury is not liable to be  

explained when the accused pleads a defence but but contrarily an obligation  

does lie on the prosecution to explain the presence of a serious injury.  In  

assessing  a  similar  situation,  this  Court  has  said  in  Lakshmi  Singh  and  

Others (supra):-  

“It  seems to us that in a murder case, the non-explanation of the  

injuries sustained by the accused at about ;the time of the occurrence or  

in the course of altercation is a very important circumstance from which  

the court can draw the following inferences:

1. that the prosecution has suppressed the genesis and the origin of  

the occurrence and has thus not presented the true version;

2. that the witnesses who have denied the presence of the injuries on  

the person of the accused are lying on a most material point and  

therefore their evidence is unreliable;

3. that in case there is a defence version which explains the injuries on  

the person of the accused it is rendered probable so as to throw  

doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the  

person  of  the  accused  assumes  much  greater  importance  where  the  

evidence  consists  of  interested  or  inimical  witnesses  or  where  the  

defence gives a version which competes in probability with that of the  

prosecution one. In the instant case, when it is held, as it must be, that  

the  appellant  Dasrath  Singh  received  serious  injuries  which  have  not  

been explained by the prosecution, then it will be difficult for the court to  

rely on the evidence of PWs 1 to 4 and 6, more particularly, when some  

of these witnesses have lied by stating that they did not see any injuries  

on the person of the accused. Thus neither the Sessions Judge nor the  

High Court  appears to  have given due consideration to  this  important  

lacuna or infirmity appearing in the prosecution case. We must hasten to  

add that as held by this Court in  State of Gujarat v. Bai Fatima  (surpa)  

there  may  be  cases  where  the  non-explanation  of  the  injuries  by  the  

prosecution  may not  affect  the  prosecution  case.  This  principle  would  

obviously apply to cases where the injuries sustained by the accused are  

minor and superficial or where the evidence is so clear and cogent, so  

independent and disinterested, so probable, consistent and creditworthy,  

that  it  far  outweights  the  effect  of  the  omission  on  the  part  of  the  

prosecution to explain the injuries. The present, however, is certainly not  

such a case, and the High Court was, therefore, in error in brushing aside  

this serious infirmity in the prosecution case on unconvincing premises.”

7. We are, therefore, of the opinion that as the prosecution has not been  

able to present an explanation as to how injuries had been suffered by Gurlal  

Singh and on the contrary his very presence has been denied the ratio of the  

observations in the above quoted judgment would apply to the facts of the  

present  case.  Equally,  the  prosecution  story  that  Gurlal  Singh  being  an

amputee would have been unable to handle a shotgun, cannot be accepted.  

Gurlal Singh in his testimony as D.W. - 6 stated that he had lost his left hand  

in an accident but had been fitted with an artificial one which he could use  

with dexterity. He emphatically denied that he could not use a gun effectively  

on  account  of  his  handicap.  Moreover,  experience  tells  us  that  even  the  

absence of an arm does not completely make an amputee incapable of using  

a shot gun.

8. There is yet another circumstance which would, to some extent, go to  

the aid of the appellants. Gurlal Singh was prosecuted as a consequence of  

his own statement for the injuries that he had caused to Gurnam Singh and  

Joginder Singh. In that case, the present P.Ws. Joginder Singh, Pala Ram  

and Nishan Singh also appeared as prosecution witnesses but they stuck to  

the version given in these present proceedings and disowned any criminal act  

qua Gurlal  Singh as a consequence of the position taken by them, Gurlal  

Singh too was acquitted by the trial court for the injuries he claimed to have  

caused to Gurnam Singh and to Joginder Singh. No appeal has been filed by  

the State challenging the acquittal of Gurlal Singh.  

9. In view of what we have held above, we deem it unnecessary to go into  

the question of alibi or any other issues raised by Mr. Cheema and Mr. Sinha.

10. We, accordingly, allow these appeals, set aside the conviction of the  

appellants and order their acquittal. The appellants are stated to be in jail. They shall  

be released forth with if not required in any other case.