[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1312 OF 2004

Hari Singh & Anr.                                   …………..Appellants

Vs.

State of Uttar Pradesh                         ……………..Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

This appeal arises out of the following facts:

1. The accused Hari Singh of village Suthari was running a  

brick kiln on the outskirts of the village.  Subsequently, one  

Randhir Singh installed another brick kiln nearby.  Hari Singh  

and his brothers, however, did not allow Randhir Singh to run  

his brick kiln effectively and ultimately Randhir Singh sold his  

brick kiln to Gulab Singh deceased some three months prior to  

the incident.  About 15 days prior thereto, Hari Singh and his  

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brother Mohar Singh clandestinely removed a large number of  

bricks from Gulab Singh’s brick kiln and on being questioned  

by  him  they  told  him  that  they  would  not  allow   his  

kiln to run.  On the night intervening 7th and 8th June, 1980 at  

about 1.00 a.m. Gulab Singh was asleep in the verandah of  

his  house  when  Hari  Singh armed with  a  lathi  and Mohar  

Singh with a country made pistol entered the house and the  

latter  fired a shot  at  Gulab Singh.   On hearing  the  sound,  

Prem Pal PW-1, the son of the deceased and Kalu @ Anand  

Swarup PW-5, flashed a torch and also raised a cry attracting  

Jagdish PW-6 and one Mukhara to the spot.  These witnesses  

also saw the accused running out of the verandah towards the  

lane carrying their weapons.  Prem Pal then made his way to  

Police Station, Muradnagar at 5.40 a.m. and lodged the FIR at  

5.45  a.m.    A  case  under  Section  302  was,  accordingly,  

registered against the accused.  Sub-Inspector Hari Raj Singh,  

the  SHO of  Police  Station  Muradnagar,  along  with  a  police  

force went to the scene of occurrence whereafter Sub-Inspector  

Pooran Singh recorded the inquest proceedings on the dead  

body.  Sub-Inspector Hari  Raj Singh, however,  recorded the  

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statements  of  the  witnesses  and  after  inspecting  the  site,  

prepared the site plan Ex. Ka.14.  He also picked up a blood  

stained  ‘khes’  and  a  bed  sheet  from the  bed  where  Gulab  

Singh had been shot.  The dead body was also dispatched for  

its post-mortem which was carried out by Dr. M.K.Goel at 4.30  

p.m. on the 8th of June 1980 and the examination revealed an  

ante-mortem firearm wound of entry 3 cm x 2.5 cm on the  

lower part of the left  side of  the chest  with blackening and  

tattooing around the wound.  The doctor  also removed 160  

small  pellets  and  three  wads  from  the  body.   On  the  

completion of the investigation, the accused were charged for  

an offence punishable under Section 302/34 of the IPC and as  

they pleaded not guilty, they were brought to trial.   

2. The prosecution in support of its case relied primarily on  

the evidence of PW1 Prem Pal, PW-5 Kalu and PW-6 Jagdish,  

PW-2 Dr. M.K.Goel,  who had conducted the autopsy on the  

dead body,  and of  PW-7 Sub-Inspector  Hari  Raj  Singh,  the  

main  investigating  officer.   The  accused  when  questioned  

under  Section  313  of  the  Cr.P.C,   denied  the  allegations  

levelled  against  them  and  pleaded  that  they  had  been  

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implicated  due  to  party  faction  in  the  village.   They  also  

examined Constable Satya Pal Singh as DW-1 who proved the  

report lodged by Randhir Singh on the 25th May 1980 at 1.30  

p.m. at Police Station Muradnagar, against Gulab Singh and  

one Ramesh under Sections 504 and 506 of the IPC.    

3. The trial court relying on the evidence of PW-1 and PW-5  

convicted  the  accused  for  the  offence  punishable  under  

Section 302/34 and sentenced them to imprisonment for life.  

An appeal was thereafter taken to the High Court.  The High  

Court endorsed the testimony of PW’s 1 and 5 as well as of  

Jagdish PW-6, the third eye witness, whose testimony had not  

been accepted by the trial  court,  and dismissed the appeal.  

The Court  observed that though all  the three eye witnesses  

had been subjected to a gruelling cross-examination they had  

withstood the same and not crumbled thereunder.  The Court  

also  found  that  the  suggestion  that  the  accused  had  been  

falsely roped in, was not acceptable for the simple reason that  

the FIR had been lodged within a short time in the facts and  

circumstances  of  the  case.   It  was  pointed  out  that  the  

incident  had  happened  at  about  1.00  a.m.  of  the  night  

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intervening 7th and 8th of June 1980 and as per the statement  

of PW-1, the family members had been completely shattered  

by  what  had  happened  and  that  PW-1  had  left  for  Police  

Station,  Muradnagar  11  km.  away  on  foot  and  lodged  the  

report at 5.45 p.m.  The Court, accordingly, observed that the  

very manner in which the FIR had been lodged spoke volumes  

about its authenticity.  The Court also rejected the argument  

that as the special report had allegedly been delivered late, it  

appeared that the FIR had been ante-time, as being without  

substance.   The  appeal  was,  accordingly,  dismissed.   The  

present  appeal  was  filed  by  the  two  accused.   During  the  

pendency  of  the  appeal,  however,  Mohar  Singh  has  passed  

away.  The appeal of Mohar Singh is, accordingly, disposed off  

as having abated under Section 394 of the Cr.P.C.  We are,  

accordingly, called upon to examine only the appeal pertaining  

to Hari Singh.

4. Mr. Jaspal Singh, the learned senior counsel, has raised  

primarily  one argument  during the hearing of this matter.  

He has pointed out that as per the evidence of Prem Pal and  

Kalu, PWs., they had been fast asleep at some distance from  

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the deceased when the fatal shot had been fired at him and as  

the  accused  had  immediately  run  away  into  the  street,  it  

appeared that their identification could not have been made.  

It  has been emphasized that the prosecution story that the  

accused had been identified by these two witnesses in the light  

of a torch, could not be believed as the site plan prepared by  

the ASI did not indicate so and as there was no evidence to  

show that any torch had been taken into possession by the  

investigating officer.   It  has also been pleaded that Jagdish  

was sleeping in his house some distance away at point “E” in  

the site plan and as such it would have been difficult for him  

to have got up and to have seen the accused running away  

within such a short time.   

5. These  arguments  have  been  strongly  refuted  by  the  

learned counsel for the State.  He has been pointed out that  

the factum of the torch had been mentioned by Prem Pal not  

only  in  the  FIR  but  even  by  the  other  witnesses  in  their  

statements  under  Section  161  of  the  Cr.P.C.  and  merely  

because the torch had not been taken into possession by the  

ASI would not lead to the inference that no torch had, in fact,  

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been available.  It has been pleaded that the FIR having been  

registered promptly spoke volumes of the prosecution story.

6. We have heard the arguments advanced by the learned  

counsel  for  the  parties  very  carefully.   PW-1  has  very  

categorically  stated  to  the  business  rivalry  that  existed  

between the accused and the deceased and their conflicting  

interests  as  both the  kilns  were  in  close  proximity  to  each  

other.  It has also come in the prosecution evidence that the  

accused had been holding out threats to the deceased and it  

appears that the threat had been carried out on the day in  

question.  We have also perused the site plan Ex.Ka. 14 and  

the same is, indeed, revealing.  Point “A” in the site plan is the  

place  where  the  deceased  Gulab  Singh  had  been  shot  and  

killed.  Point “BB” is the place where Prem Pal and Kalu PWs.  

had been lying asleep.  This shows that while running away,  

the accused had passed within an arms length of these two  

witnesses.   The  site  plan  also  marks  the  route  that  the  

accused  took  while  escaping  from  the  murder  site  and  it  

shows that after firing the shot at point “A” the two accused  

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had skirted and run past point “BB”, across the door of the  

residence  of  Jagdish  at  point  “E”  and  then  to  the  rasta  

adjoining the chabutra of the house of Ram Singh.  It is true,  

that as per the evidence on record, the night of the murder  

was  a  moonless  one  but  we  have  no  reason  to  doubt  the  

testimony of the eye witnesses when they say that they had  

identified the accused in the torch light, more particularly as  

both the parties belonged to the same village and were well  

known  to  each  other.   We  are  of  the  opinion  that  merely  

because the torch had not been taken into possession by the  

ASI would not mean that the statements of the eye witnesses  

were not credible.  We find, also, that the spontaneity of the  

FIR giving all  relevant details fortifies the prosecution story.  

The  prosecution  story  is  that  the  accused  had fired  at  the  

deceased with a country made pistol from a very close range.  

The  doctor  PW-2,  who  had  conducted  the  post-mortem  

examination found one wound of entry about 3 cm x 2.5 cm  

with blackening and charring and also recovered 160 pellets  

and  three  wads  from  inside  the  dead  body.   The  medical  

evidence  clearly  suggests  the  use  of  such  a  weapon  from  

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almost  point  blank range.   There  is,  thus,  no  merit  in  the  

appeal.  It is, accordingly, dismissed.

…………………………….J. (Harjit Singh Bedi)

…………………………….J. (Chandramauli Kr.Prasad)

New Delhi, Dated: December 16, 2010

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