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PETITIONER: HARDEV SINGH, SUBA SINGH

       Vs.

RESPONDENT: HARBHEJ SINGH & ORS.

DATE OF JUDGMENT:       20/11/1996

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO 558 OF 1988                       J U D G M E N T S.P. KURDUKAR, J.      These two  Criminal Appeals  on obtaining Special Leave have been  filed by  the appellants challenging the legality and correctness of the judgment and order of acquittal dated January 28, 1988 passed by the Punjab and Haryana High Court at Chandigarh. (2)  The prosecution  had put  in  the  challan  before  the Judge, Special Court Firozepur on 14.8.1985 for trial of six accused respondents herein on the following allegations:-      Baldev Singh (since deceased was the younger brother of Hardev Singh  (P.W.2) and  Jaswant  Singh  (P.W.1).  Harbhej Singh (A-3)  and Gurmej Singh (A-4), the respondents herein, are the  real brothers  wheres Sohan  Singh (A-5)  and Mohan Singh (A-6),  the respondents herein, are the real brothers. The house  of Harbhej  Singh (A-1) is situated adjoining the house of Hardev Singh (P.W.2). Harbhej Singh (A-1) and Sohan Singh (A-5)  are  cousins.  Suba  Singh,  the  appellant  in Criminal Appeal  No. 558  of 1988  is the  son of  Harbhajan Singh (since  deceased), whereas  Criminal Appeal No. 557 of 1988 is  filed  by  Hardev  Singh,  the  brother  of  Baldev Singh(since deceased). (3)  It is  alleged by  the prosecution  that  Hardev  Singh (P.W.2) was  doing some  construction work  at his house. On 23rd May,  1985 at about 7.30 p.m when he was sitting in his house alongwith Jaswant Singh and their father Chanan Singh, Harbhajan Singh  (since deceased and Suba Singh (P.W.3) came to his  house with  a view  to help  him in the construction work. At that time all the accused persons armed with deadly weapons reached  the house  of Hardev Singh (P.W.2). Harbhej Singh (a-1)  was armed  with a  .12 bore  double barrel gun. Gurbhej Singh  (A-2) with a Gandhali, Sohan Singh (A-5) with a Kirpan,  and Amrik  Singh (A-3),  Gurmej Singh  (A-4)  and Mohan Singh  (A-6) were  carrying Gandasas  with them.  They trespassed into  the house  of Hardev  Singh (P.W.2)  and  a lalkara was  given to  teach a  lesson to him and others for causing injuries  to Harbhej  Singh (A-1).  Immediately  all these accused  persons started  assaulting Suba Singh (PW.3)

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on his  chest. In  the meantime  Harbhej Singh (A-1) fired a shot from his gun hitting on the right dorsal and the pitarm of Harbhajan  Singh causing  a bleeding injury upon which he fell down.  Amrik Singh  (A-2) then inflicted blows from the sharp side  of the  gandasa on  his shoulder and right (A-3) gave a  gandasa blow from its sharp side on his right thigh; Mohan Singh (a-6) did not lag behind and also gave a gandasa blow on  his right ankle. Harbhej Singh (A-1) fired one more shot from  his gun  but it  did not hit anybody. A roula was raised whereupon  all the  accused persons  fled  away  with their weapons. (4)  Coming to  the second  part of the incident of the same transaction, it  is alleged by the prosecution that when the accused persons  were running  away they raised a lalkara to finish Baldev  Singh. Apprehending  danger to  the  life  of Baldev  Singh,   Hardev  Singh  (P.W.2)  and  Jaswant  Singh hurriedly went  in the direction where Baldev Singh had gone to take  fodder, to  inform him about the first incident and also to  caution him. At that point of time Baldev Singh was coming back after taking fodder in the tractor trolley. When he reached  in front  of the house of A-1, he was surrounded by the accused persons. Baldev Singh stopped the tractor and tried to escape from the back side of the trolley but in the meantime Sohan  Singh (A-5)  gave a kirpan blow chopping off his right  arm. He  fell on  the barseen fodder lying in the trolley. Harbhej Singh (A-1) raised an alarm whereupon Amrik Singh (A-3) climbed upon the trolley and  chopped off hi leg with a  gandasa whereas  Gurmej Singh  (A-3) gave  two three blows with a gandasa on his left arm. Mohan Singh (A-6) also gave a gandasa blow from its sharp side on his chest. Due to murderous assault  Baldev Singh  fell in  the  trolley  with bleeding injuries. (5)  Hardev Singh (P.W.2) then contacted Rajinder Singh, the Sarpanch and  informed him  about the  assault on  Harbhajan Singh, Baldev  Singh  and  Suba  Singh.  The  three  injured persons were  then taken  to the  hospital in a trolley. The two injured  persons, namely,  Harbhajan  Singh  and  Baldev Singh while  being carried  to the  hospital,  succumbed  to their injuries.  On reaching  the hospital   at  Mamdot, the doctor on seeing the serious condition of Suba Singh (P.W.3) advised that  he be  taken to  the hospital at Ferozepur for medical treatment.  Hardev Singh  (P.W.2) then  went to  the police Station,  Mamdot and  lodged a report, Ex-PK at 10.50 p.m. on  the  basis  of  which  a  formal  FIR  Ex-PK/1  was recorded. The  special report  was sent to Illaqa Magistrate at about 1.30 a.m. on 24.5.1985. (6)  SI Puran  Singh then went to the hospital at Mamdot but for want  of light he could not hold the inquest on the dead bodies . He then went to Ferozepur hospital but there he was told by the doctor that Suba Singh (P.W.3) was unfit to make any statement . He then returned back to civil hospital at (Mamdot and  held inquest  viz. Ex.PC and PF respectively on the dead  bodies of Harhajan Singh and Baldev Singh and sent them  to  the  Civil  Hospital,  Ferozepur  for  post-mortem examination vide  his two  ruqqas dated  23.5.85 exhibits PB and PF.  He thereafter went to the house of Chanan Singh and during the  investigation collected blood stained earth from the place  of occurrence  vide Ex.  PL. A pair of shoes. Ex. P5/1-2 was  also taken  into possession  therefrom vide memo Ex. PN.  Two empty  cartridges recovered  from the spot were taken into  possession vide  memo Ex.  PN. A rough site plan Ex. PV was then preoared. He then recorded the statements of various persons. (7)  During the  course of  investigation  on  28.5.1985  SI Puran Singh arrested Amrik Singh (A-3), Gurbhej Singh (A-2),

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Gurmej Singh  (A-4) and  Sohan Singh (A-5) Who were produced by Sadha  Singh, the  Ex Sarpanch. The accused then made the disclosure statements  under Section  27 of the Evidence Act which led to the recovery of certain incrimination articles. Harbhej Singh  (A-1) an  Mohan Singh  (A-6) were arrested on 31.5.1985  and  during  the  investigation  they  also  made disclosure statements  which led  to the  recovery of  a gun Ex.P.11 along  with five cartridges Ex.P.12 to 16; a licence Ex.P.JJ and a gandasa Ex.P.17. All these articles were taken into possession  vide Ex.P.17. All these articles were taken into possession vide Ex.PKK and PLL respectively. The seized articles were then sent to Chemical Examiner, Serologist and Director, Chandigarh  for  examination  and  reports.  After completing the  investigation all the six respondents herein were charge  sheeted for  offences punishable under Sections 148, 302/149,449,324/149 IPC. A-1 was further charged for an offence punishable under Section 27 of the Arms Act. (8)  The defence  of the  accused is  that of  total denial. According to  them they  have been falsely implicated due to enmity. They  also denied  to have  made any statement which led to  the  recovery  of  any  incrimination  article.  The accused pleaded that they are innocent and be acquitted. The prosecution in  support of  its case  examined as many as 13 witnesses of  whom two  are witnesses  of facts  besides the formal witnesses.  The defence  also examined Dr.H.L. Bhami, D.W.1, the Consulting Scientist Forensic Science Laboratory, Chandigarh. (9)  The Learned  Sessions Judge, Ferozepur, on appraisal of oral and  documentary evidence on record by his Judgment and order dated 20th September, 1986 convicted Harbhej Singh (A- 1), Amrik  Singh (A-3),  Gurmej Singh  (A-4) and Sohan Singh (A-5) on  three counts viz. (i)449 IPC; (ii) 302/34 IPC; and (iii)324/34 IPC  and   sentenced each one of them to undergo rigorous imprisonment  for five  years on  first count; life imprisonment and  to pay  a fine  of Rs.1000/- in default of payment of fine to undergo further rigorous imprisonment for three  months   on  second  count  for  causing  murders  of Harbhajan Singh  and Baldev Singh; and rigorous imprisonment for one year for causing injuries to Suba Singh on the third count. Harbhej Singh (A-1) was convicted under Section 27 of the  Arms   Act  and   was  sentenced   to  suffer  rigorous imprisonment for  one year.  All substantive  sentences were directed to run concurrently. While acquitting Gurbhej Singh (A-2) and Mohan Singh (A-6) learned Sessions Judge held that the role  attributed to both of them was very minor inasmuch as A-2 alleged  to have caused a simple injury to Suba Singh (P.W.3) and  no overtact  was attributed to him . As regards Mohan Singh  (A-6), he  found that he alleged to have caused one injury on non-vital part of the body Harbhajan Singh and one dimple  injury to  Baldev Singh.  The injuries caused by both these  accused could  have been caused to them by other co-accused.  No   motive  was   alleged  against  them  and, therefore, their false implication cannot be ruled out. (10) The four convicted accused(A-1), (A-3), (A-4) and (A-5) aggrieved by  the judgment and order of conviction preferred a Criminal  Appeal No.553  DB/86 whereas the State of Punjab preferred a  Criminal Appeal  No.198-DBA/87 against  the two acquitted accused  (A-2) and  (A-6) to the High Court . Both the criminal  appeals were  heard together  by the  Division Bench of  the High  Court and  the learned Division Bench by its  judgment   and  order  dated  January  28,1988  allowed Criminal Appeal  No. 553  DB/86 filed by the State of Punjab came to  be dismissed confirming the order of acquitted them all .  The appeal  filed by  the state  of Punjab came to be dismissed  confirming  the  order  of  acquittal.  Appellant

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Hardev Singh,  the brother of Baldev Singh (since deceased ) on obtaining  Special Leave has filed Criminal Appeal No.558 of 1988  whereas Criminal Appeal No. 558 of 1988 is filed by Suba Singh,  the son of Harbhajan Singh (since deceased ) in this   Court. Since impugned judgment is  common, both these criminal appeals are being disposed of by this Judgment. (11) Mr. R.L.  Kohli and  Mr. Som  Datta, the Learned Senior Counsel appearing  in support  of these two criminal appeals assailed the  impugned Judgement  on various grounds. It was contended that the High Court had totally misread the direct evidence and other materials on record. The reasoning of the High Court while acquitting the accused is based on surmises and conjectures  and, therefore, it is unsustainable. It was urged that  the evidence  on record clearly establishes that Harbhajan Singh  was assaulted  in front  of  the  house  of Chanan Singh.  This fact  finds corroboration  from  various circumstances. No sustainable reasons were given by the High Court while  rejection the  evidence of Hardev Singh (P.W.2) and the  injured witness  Suba Singh  (P.W.3). It  was  then contended  that   the  incident   in  question  occurred  on 23.5.1985 at  7.30 p.m. and the First Information Report was lodged at  the earliest  opportunity at  10.50 p.m. and copy thereof reached Illaqa Magistrate at 1.30 a.m. on 24.5.1985. The High  Court was  wholly wrong  in holding that there was delay in  lodging the First Information Report. Both the eye witnesses were  disbelieved on  flimsy ground that they were unable to  explain the  second fire  arm injury on Harbhajan Singh. It was then submitted that the learned Sessions Judge was equally  wrong in acquitting A-2 and A-6 which order was confirmed by the High Court. There is unimpeachable material on record  to prove  that they  were members  of an unlawful assembly having  a common object to lay murderous assault on the victims.  The trial  court as  also the  High Court  had completely misread the scope and true meaning of section 149 IPC . The High Court ought to have allowed  the appeal filed by the State of Punjab against the order of acquittal of A-2 and A-6 and they should have been convicted for the offences for the offences for which they were charge sheeted. Learned Counsel, therefore,  urged that  the appeals  be allowed and the respondents  accused be  dealt with  in accordance  with law. (12) It may  be stated that the State of Punjab did not file any appeal  in this  Court against  the  impugned  order  of acquittal passed by the High Court. (13) Mr. R.S  Sodhi, the Learned Counsel for the respondents (accused )  supported the impugned judgment of acquittal. He urged that  the view  taken by  the High Court is a probable one and,  therefore, no interference is called for. Both the appeals are devoid of any merit and be dismissed. (14) We have  given our  careful thought  to the contentions raised before us. With a view to determine as to whether the view taken  by the  High Court  is  probable  one,  we  have carefully gone  through the  evidence and other materials on record. We  may briefly  indicate the  reasons for acquittal given by the High Court an under:- (i)  Delay in  lodging the FIR. (ii) Non examination of independent witnesses of facts. (iii) If  P.W.2 and  P.W.3  were  present  at  the  time  of      incident it  would be  unbelievable that they would not      have intervened to protect the victims. (iv) When the  assailants went  to attack  Baldev Singh, his      relatives including  eye  witnesses  did  not  go  with      weapons to  protect him; a situation which according to      the High  Court "it is not so easily acceptable in real      life".

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(v)  The witnesses  could not have identified the assailants      since it  was a dark night hence it was a case of blind      murders. (vi) The deceased  were men  of desparate  character and had      many enemies  and the  respondents (accused) were named      as culprits primarily on suspicion. (viii)    DDR entry  34 dated 23.5.1985 did not disclose the           names of eye witnesses, place of occurrence or the           weapons. (ix) Medical evidence  does not  support the  ocular account      since injury  No.6 found  on the dead body of Harbhajan      Sigh remained wholly unexplained. (x)  The victim  (Harbhajan Singh)  must have  been fired at      from a very close range and not from the distance of 25      ft. as shown in the site plan. (15) After going  through  the  ocular  evidence  and  other materials on record we are of the considered view that every finding recorded  by the  High Court  is patently  wrong and unsustainable. The  High Court  has completely  misread  the veidence on record. (16) Coming to the finding as regards the non-examination of independent eye  witnesses who  saw the incident in question we must  hasten to  add that  it is  complete erroneous  and unmerited  .  The  prosecution  has  examined  Hardev  Singh (P.W.2) and  an injured witness Suba Singh (P.W.3), although some other  villagers did  come at the place of incident but in our  opinion merely  because other  independent witnesses were not  examined could  not be  a ground  to discredit the evidence of  these two  eye witnesses.  This Court  time and again has  emphasised that  the evidence  of close relations who testified  the facts  relating to  the occurrence be not rejected merely  on the  ground that they happened to be the relatives. All  that  this  Court  has  ruled  is  that  the evidence of such witnesses be scrutinised very carefully. We have very  carefully gone  through the  evidence  of  Hardev Singh (P.W.2)  and Suba Singh (P.W.3) who were consistent in their evidence  as regards  the details of assault caused by the respondents  (accused). Both  the witnesses  have  given minute details  in regard to the weapons used by each of the accused  and   the  manner  in  which  they  have  assaulted Harbhajan Singh  in front of the house of Chanan Singh. They also stated  that A-1  fired from his gun at Harbhajan Singh causing him  bleeding injuries. They further stated that the second shot  fired by A-1 missed the target. It is true that the medical evidence does indicate two gun shot injuries. In the facts  and circumstances  of the case non explanation of the gun  shot injury  No.6 by  these two eye witnesses would neither dilute  their evidence  nor their  presence could be doubted. It  is the positive case of both the witnesses that Harbhajan Singh  had come  the house of Chanan Singh to help him in  the construction  work. There  is nothing  in  their evidence which   can  persuade us  to disbelieve  the  story narrated as  regards the assault on Harbhajan  Singh. Coming to the  assault on  Baldev Singh  caused by  the respondents (accused), Hardev  Singh (P.W.2)  and Suba Singh (P.W.3) had stated that  Baldeb Singh,  on noticing that the respondents (accused) were  coming towards  him, left  the driver’s seat and went  to the trolley to escape himself from the probable attack by  the accused.  Harbhej Singh  (A-1) gave a lalkara and thereupon  Amrik Singh  (A-3) climbed up the trolley and chopped off  the leg  of Baldev  Singh with  gandasa. Gurmej Singh(A-4) also climbed up the trolley and gave 2-3 blows on his left arm from the sharp side of gandasa. Mohan Singh (A- 5) also  gave a  gandasa blow  from the  sharp side  on  his chest. After infliction injuries to Baldev Singh the accused

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fled away.  Both  these  witnesses  were  searchingly  cross examined by  the defence  but there  is hardly  any material brought on  record to discredit their evidence. The evidence of both  these witnesses in our considered view unmistakably proves that  the respondents  (accused) who were the members of the unlawful assembly having a common object to cause the murders of  Harbhajan Singh  and Baldev Singh did cause such bodily injuries  to them  as a  result thereof they met with homicidal deaths. (17) The evidence of both these witnesses find corroboration from the  fact that  the blood stained earth seized from the first site of occurrence contained the human blood. In these circumstances  we   have  no   manner  of   doubt  that  the respondents (accused)  formed an  unlawful assembly  and its object was to cause murderous assault on Harbhajan Singh and Baldev Singh.  Both the  witnesses have  also testified that the respondents  (accused) came together with deadly weapons in their hands with the common object to cause such assault. (18) Coming to  the  next  ground  of  acquittal  viz.,  non intervention of  the relatives of the deceased including the eye witnesses  during the  assault on the victims to protect them, In  our opinion  is wholly  unsustainable.  Since  the respondents (accused  ) were  armed with  deadly weapons  as against this  the victims  and his  relatives  were  totally unarmed and  in such a situation it was absurd to expect any intervention and  if they were to do so it would have led to some more  casualities. We,  therefore, do not see any merit whatsoever in  the reasoning given by the High Court in this behalf. (19) The High Court was totally wrong in recording a finding that it  was   a blind  murder during  the dark  night.  The incident took  place at 7.30 p.m on 23rd  May , 1985 and the witnesses have  emphatically asserted  that there was enough light   to    identify    the    accused.    Moreover    the respondents(accused) were  known to  the eye witnesses since their houses  were adjacent  to the  house of  Chanan Singh. This finding,  therefore , is totally imaginary without  any material on record. (20) The next  finding of  the High  Court that the deceased were  desparate   criminals  having  many  enemies  and  the respondents (accused)  were roped  in on  mere suspicion  is again  unsustainable.   Except  the   ipse  dixit    of  the respondents there  is  no  material  brought  on  record  to support this  assertion. This  finding of  the High Court is based on evidence and thus illegal and (21) The further  ground in support of acquittal recorded by the High  Court that  the  case  against  the    respondents (accused) was  framed in  the village with the connivance of the of  the police,  is based on mere surmise. The very fact that the FIR was lodged within three hours of the occurrence naming the  accused with all details unmistakably proved the involvement of  the accused in the present crime. Therefore, this ground  is figment  of imagination  on the  part of the High Court.  There was  hardly any time to concoct any false story against the respondents(accused). (22) The High  Court had  again committed  a grave  error in relying upon  the   DDR entry  No.34 dated  23rd  May,  1985 wherein the  names of the eye witnesses, place of occurrence and the weapons of offence were not mentioned to corroborate the FIR and ocular evidence. (23) The finding  of the  High Court that A-1must have fired from a  close range  and not  from a  distance of  25 ft. as deposed to by Hardev Singh (P.W.2) and Suba Singh (P.W.3) is not correct. To sustain this reasoning the High Court relied upon the evidence of Dr. Maan (P.W.1) In a sudden assault of

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this nature  it was difficult for an eye witness to describe the correct  distance from  where the  gun was  fired . This minor discrepancy  in  our  opinion  would  not  justify  to disbelieve the two eye witnesses. (24) Coming to the injuries inflicted on Suba Singh (P.W.3), who had  stated in  his evidence  that he  had sustained the injuries on  his person  during the  assault caused  by  the respondents (accused),  it  need  be  noticed  that  he  was treated  at   Ferozepur   Hospital.   His   evidence   finds corroboration from  the evidence  of Dr.  A.S. Mann  (P.W.1) Medical Officer,  Civil Hospital, Ferozepur who Testified to these injuries.  It is  true that the same were superficial. The evidence of Suba Singh also finds corroboration from the evidence of  Hardev Singh  (P.W.3). In view of this evidence we see  no hesitation  to conclude  that the respondents who were members of an unlawful assembly caused injuries to Suba Singh and  committed an  offence punishable  under  Sections 324/149 IPC. (25) The defence  has examined  Dr. H.L.  Bahmi (D.W.1)  who claims to be the Consulting Forensic Scientist New Delhi. We have gone  through the  evidence and the same in our opinion is tailor  made to suit the defence. After going through the reports of the Chemical Examiner Ex. PNN and the FSL EX. PQQ produced by  the prosecution  and the  evidence of  Dr.  H.L Bahmi (D.W.1)  we are  satisfied that  the  reports  of  the Chemical Examiner  and FSL  are more  credible and we accept the same and reject the evidence of Dr. H.L. Bahmi (26) It also  needs to  be mentioned  that the learned trial judge in  paragraph 44  of  his  judgment  has  referred  to various  recoveries   at  the   instance  of   some  of  the respondents and  in particular  recovery  of  .12  bore  gun (Ex.P.11) from Harbhej Singh (A-1). The trial court accepted the prosecution  evidence in respect of these recoveries and held that these various recoveries corroborated the evidence of two  eye witnesses.  Surprisingly, the High Court had not touched Thess  evidence at  all which  in our  opinion is  a serious error on its part. We accept the evidence of various recoveries made during the course of investigation, which in unmistakable terms,  corroborates the  evidence of  two  eye witnesses. (27) Coming to  the acquittal  of accused Nos.2 and 6 by the trial court  against which  the State of Punjab had filed an appeal to the High Court and the same was dismissed - in our opinion  the   learned   Sessions   Judge   had   completely misunderstood the  scope of Section 149 IPC. The only reason given by  the learned  trial Judge  was that  there  was  no material on the record to prove that they caused any serious injuries to the two victims. It was further observed that no specific role  was attributed  to these  two accused. in our opinion this  finding is  again contrary  to the evidence on record inasmuch  as both  these accused  were the members of the unlawful  assembly and  did have the common object as it was implicit in their action i.e they were armed with deadly weapons; came  along with  other accused and participated in the murderous  assault on  both the victims, The trial court and the  High Court  had erred  in law  in not  holding both these accused guilty with the aid of Section 149 IPC for the substantive offences  punishable under Section 302 IPC . The order of  acquittal passed  by the trial court and on appeal affirmed by  the High Court thus cannot be sustained for the reasons recorded hereinabove. (28) In the  result the  Criminal Appeal  No.558 of  1988 is allowed. The  order of  acquittal passed  by the trial court and affirmed  by the High Court in respect of A-2 and A-6 is quashed and  set aside. The order of acquittal passed by the

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High Court  in respect  of Harbhej Singh (A-1), Amrik Singh) (A-3), Gurmej  (A-4) and  Sohan Singh  (A-1) in also quashed and set  aside and  all the  respondents (A-1)  to (A-6) are held  guilty  for  the  offence  punishable  under  Sections 302/149 of  the Indian Penal Code for committing the murders of Harbhajan  Singh and Baldev Singh and each one of them is sentenced to  suffer imprisonment for life on two counts and to pay  a fine of Rs.1000/- each in default further rigorous imprisonment for  three months. Respondents(A-1) to A-6) are also convicted  under Section  449 of  the Indian Penal Code and each  one of  them is  sentenced to  suffer RI  for five years. Respondents  (A-1 to  A-6) are  also convicted  under Sections 324/149  of  the  Indian  Penal  Code  for  causing injuries to  Suba Singh  and each one is sentenced to suffer RI for one year. Harbhej Singh (A-1) is also convicted under Section 27  of the  Arms Act  and sentenced to suffer RI for one year. The substantive sentences of respondents(A-1 to A- 6) are  directed to run concurrently. The respondents(A-1 to A-6) who  are on  bail, shall  surrender to their bail bonds forthwith to serve out the remainder of their sentences. (29) In view  of our  order passed in Criminal Appeal No.558 of 1988  no separate  order is called for in Criminal Appeal No.557 of 1988, which stands disposed of.