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PETITIONER: JOGINDER SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       06/03/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI, J.      Leave granted.  Heard  learned  counsel  for  both  the sides.      This appeal  by special  leave  is  filed  against  the judgment of the High Court of Punjab and Haryana in Criminal Appeal No.  91-SB of  1986. The  High  Court  confirmed  the conviction of  the appellants  under sections  147, 353, 447 and 307 read with 149 IPC, but reduced their sentence to the period already  undergone. The  appeal to the High Court was against the  judgment and  order of  the Court of Additional Sessions Judge in Sessions Code No.9 of 1984.      It was the prosecution case that a dispute was going on Since 1981  between Ghala  Singh and Balbir Singh on the one hand and  Dayal Singh  and Munsha  Singh on  the  other,  in respect of  an agricultural  land of  village Bhadaur. Ghala Sigh and  Balbir Singh  who belong  to the  faction of  Sant Narain Singh  were claiming  that they are the owners and in possession of  that land. Dayal Singh were claiming that the land belongs  to Gurudwara  Nanaksar and it is cultivated by Daya Singh  and Munsha  Singh. There  is a  building in  one corner of  the said land and it is used as a ‘That’ (a place where reading  of the  ‘Holy Book is done). This dispute led to initiation  of proceedings  under section 145 of the Code of  Criminal  Procedure.  The  Sub-  Divisional  Magistrate, Barnala passed  an order  under section  146 of  the Code on 22.4.1983 to attach the said land and to give effect to that order appointed  Naib Tehsildar,  Lal Chand  as the Receiver and ordered  him to  take its  possession and manage it till the final  order was  passed. A police guard comprising Head Constable, Chanan  Singh and Constables Pawan Kumar, Karnail Singh and  Bhalinder Singh  was also  posted on that land to see that  land to  see that  no breach  of peace took place. Before the  Receiver could  take possession  of the land the incident giving risotto this case happened. During the night between 24th and 25th April, 1983 at about 1.00 a.m. accused Joginder Singh long with a large number of persons belonging to the  party of  Sant Gurdev  Singh went  to the  land in a truck and  two jeeps.  They had  carried a  saffron collared ‘Nishan Sahib’  and were also armed with fire arms and other

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weapons. They wanted to fix the Nishan Sahib there to create evidence that  they were  in possession  of that  land. When they reached  near the  gate of the building Head Constable, Chanan Singh  inquired about   their identity and then tried to persuade them not to take forcible possession of the land in that  manner. At the stage accused Joginder Singh raise a ‘lalkara’ that  "come what may, we shall take possession and finish the  dispute once  for all".  Joginder Singh  and his companions then surrounded the building. Apprehending danger to  their   persons,  Karnail  Singh,  Gurcharan  Singh  and Mohinder Singh  who were  present in  a tent  pitched on the adjoining land  rushed to that building at the same time. In order to  save themselves  Mohinder Singh, Karnail Singh and Gurcharan Singh  who  were  armed  with  guns  also  started firing. As  the situation  became  serious  Head  Constable, Chanan Singh instructed the three constables to take care of themselves and  rushed to  the Police  Station for  help. He reached there at about 1.30 a.m. and informed Sub-Inspector, Iqbal Singh  about what had happened. Iqbal Singh registered an offence  and then along with Head Constable, Chanan Singh and other  policemen went  to the  place of  the incident at about 3.00 a.m. By that time all except the three constables had left  that place.  Iqbal Singh  inspected the  scene  of offence in  the morning and found five dead bodies belonging to the  party of  Jodinder Singh  on that  land outside  the ‘That’. He also found one jeep lying there. After completing further investigation he charge-sheeted 19 persons.      In order  to prove  its  case  the  prosecution  mainly relied upon  the  evidence  of  the  three    eye-witnesses, namely, Head  Constable Chanan Singh (PW-1), Constable Pawan Kumar (PW-2)  and Constable  Karnail Singh  (PW-4),  Neither karnail Singh  nor Gurcharan  Singh nor  Mohinder Singh  was cited and examined as an eye-witness.      All the  accused except  Harjinder  Singh  and  Sukhdev Singh stated  in their  examination under section 313 of the Code that  they were falsely involved. Accused Sukhdev Singh adopted the  version of accused Harjinder Singh. The version of Harjinder  Singh was that on 24.4.1983 in the evening he, Sukhdev Singh,  Major Singh, Nachhattar Singh, Jit Singh and Nazir Singh  wee  present  at  Gurudwara  Nanaksar  to  hear recitation of Rehras’. The recitation was over at about 8.00 p.m. At  that time they saw one harvester combine proceeding towards the  land in  dispute. They  apprehended that  Ghala Singh and other followers of Sant Narain Singh might harvest and take  away the  crop from  that land.  They,  therefore, decided to  go to  the land  to inquire and for that purpose were waiting  for a  vehicle to  come. After some time Dayal Singh came  there with  his jeep.  So they  all left in that jeep for  the land.  As they  had not seen the policemen who were posted  near the  Gurudwara Nanaksar  they thought that possibly the  policemen had  gone on a round to the land. So after reaching  there they  shouted for  those policemen but they were  not found  there. Suddenly Gurcharan Singh, Ghala Singh, Daya  Singh, Bachan  Singh and Gurdial Singh came out of the  building armed  with rifles, swords and gandasas and attacked them.  He was  injured by  a bulled and, therefore, tool shelter  in a  nearby ‘khal’.  He had also noticed that others were  also injured  by the bullets and other weapons. After some  time when  the assailants had left he along with Sukhdev Singh  tried to find out what had happened. He found that Nazir  Singh, Dayal  Singh and  Jit Singh  were hit  by bullets and  had died. Nachhattar Singh and Major Singh were injured with sharp edged weapons and they had also died. He, therefore,  along  with  Sukhdev  Singh  went  to  Gurudwara Nanaksar and  from there along with Rupinder Singh, Joginder

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Singh and  others went  to the  Police Station at Bhadaur to inform the  police about  the incident. Sub Inspector, Iqbal Singh who was in charge of the Police Station did not record their complaint  and instead  took them into custody. He and his companions were released on 3.5.1985.      The trial  court held that Ghala Singh and Balbir Singh were in  possession of  the land  and  the  defence  of  the accused that they were in possession was false. It also held that those who had gone to the land had gone with the object of taking  forcible possession  and thus they constituted an unlawful assembly.  It also  held that  they  had  committed trespass into  the  field  and  obstructed  Head  Constable, Chanan Singh  in execution of his duty to maintain peace. It further held  that while  firing at  the policemen  and  the other three  persons who were in the building the members of the unlawful  assembly had  committed an  attempt to  murder those persons.  It held that the identity of Joginder Singh, Harinder Singh, Rupinder Singh Sohan Singh, Harjinder Singh, Major Singh,  Sukhdev Singh  and Amar  Singh was established beyond doubt; and therefore, convicted them for the offences punishable under  Sections 147,  354, 447  and 307 read with 149 IPC.  Rest  of  the  accused  were  acquitted  as  their identity was not established.      The  High  Court  after  re-appreciating  the  evidence confirmed the  findings that  Ghala Singh  and Balbir  Singh were  in  possession  of  the  land,  that  Joginder  Singh, Harjinder Singh  and  other  convicted  accused  along  with others had  gone to the land to take possession forcibly and that they  had fired shots towards the building in which the police party  consisting of Head Constable, Chanan Singh and other  three   constables  were   present.  It,   therefore, confirmed the conviction of the appellants but reduced their sentence.      It was  forcefully urged by the learned counsel for the appellants that  in this  case neither the investigation was fair nor  the trial  was  conducted  fairly  by  the  Public Prosecutor. It  was submitted  that the  High Court  did not properly consider  this aspect  and brushed aside this point by observing  that there  was no reliable evidence that Sub- Inspector, Iqbal  Singh and  Inspector,  Gurnam  Singh  were followers  of   Sant  Narain   Singh  and   had,  therefore, suppressed the  true facts  and  falsely  made  out  a  case against the  accused instead  of registering  a case against Ghala Singh,  Daya Singh, Bachan Singh and Karnail Singh who had caused the deaths of as many as five persons and injured Harjinder Singh.      Having gone through the evidence, we find that there is considerable substance  in  the  contention  raised  by  the learned counsel  for the  appellants. Though it is true that in view  of the  dispute regarding  the land between the two factions, a  police party  was required  to be  posted, Sub- Inspector, Iqbal  Singh was  not right when he stated before the Court  that a  police party  headed by  Head  Constable. Chanan Singh  was posted  at the land which was the subject- matter of  dispute. Iqbal  Singh  had  to  admit  in  cross- examination when confronted by documentary evidence that the police party  was posted  near Gurudwara Nanaksar and not on the land.  It is not believable that if the police party was really posted  at the  land the accused either by themselves or along  with others  would have  gone to that land to take forcible  possession  thereof.  If  the  police  was  really staying in  the ‘That’ as deposed by Iqbal Singh then at the time when  site  and  recovery  Panchnamas  were  made  some articles or  things belonging to the police party would have been found  from inside  the building.  As a  matter of fact

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nothing belonging  to the  police party  was found from that place. If  as a result of the dispute regarding the land the situation had  so worsened  that it  had become necessary to post the  police at  the land then they would have certainly carried fire arms with them. The evidence of Chanan Singh is that they  did not  have  fire  arms  at  the  time  of  the incident.  it   also  becomes  clear  that  the  prosecution witnesses have  falsely stated that the building was used as a ‘That’. No sacred book or any other religious scripture or any other  material was  found from the building which could have supported  their case  that the  building was used as a ‘That’. The version of Chanan Singh and other two constables that they  were occupying  the  building  and  that  Karnail Singh, Gurcharan Singh and Mohinder Singh had pitched a tent in the  nearby field which belonged to them is unnatural and does not  appear to  be correct.  If Ghala  Singh and Balbir Singh were  in possession  of the  land and  Karnail  Singh, Gurcharan Singh  and Mohinder  Singh were  there to  keep  a watch over  the land  are there was hardly any necessity for them to  pitch a  tent in the adjoining land and not to stay in the  building itself.  The High Court failed to take into consideration all  these relevant and material aspects while appreciating the  evidence of  Chanan  Singh  (PW-1),  Pawan Kumar (PW-2)  and Karnail  Singh (PW-4) and Iqbal Singh (PW- 12) which  grate a  serious doubt  regarding truthfulness of their version.      The evidence  of PWs  -1,2 and  4 is that when Joginder Singh and  his companions  came near the gate of the ‘That’, Chanan Singh  inquired about  their identity  and  tried  to persuade them  not to  take forcible possession of the land. Their  evidence   is  that  Joginder  Singh  then  raised  a ‘lalkara’ "come  what may,  we  shall  take  possession  and finish the dispute once for all". Thereafter they surrounded the ‘That’  and  also  the  tent  in  which  Karnail  Singh, Gurcharan Singh and Mohinder Singh were present and so these three persons  left the tent and took shelter in the ‘That’. Joginder Singh and his companions thereafter made an attempt to enter into the ‘That’ and also started firing. Apart from this version  being unnatural and, therefore, not believable it also  becomes clear  from the  site plan  an the recovery Panchnama that  it is  not a  true version. It is not likely that when police was present there they would have made such an attempt.  The site  plan and the other evidence on record discloses that  there is  a building  in  the  north-western corner of  the land  consisting of  about 10 rooms having an open compound  on the  east  and  south  and  bounded  by  a compound wall  having a  gate  in  the  southern  wall.  The compound was  covered  from  all  the  sides.  The  distance between the  gate of  the accused  or  other  companions  of Joginder Singh  had entered  the compound  and had  tried to enter into the building then as a result of firing by s Karnail Singh,  Gurcharan Singh  and  Mohinder  Singh,  dead bodies of the persons who were hit by the bullets would have been found  inside that compound. Not a single dead body was found lying  inside that  compound. All  of them  were found outside and  that too at some distance. The dead bodies were found lying scattered in the south-west, west and north-west directions. Not a single article belonging to the accused or other companions  of Joginder  Singh was  found  within  the compound. This  independent and  unimpeachable  circumstance clearly establishes  that  none  of  the  accused  or  other companions of  Joginder Singh  had entered  the compound  of that building.  Neither on  the outer  walls of the building nor on  the outer walls of the compound any marks were found indicating that  bullets were fired from outside and had hit

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the walls. Not a single fired bullet was found either inside or near the building. The evidence of PW-13, lachhman Singh, the Patwari  who had  prepared the site plan has stated that neither Pawan  Kumar nor anyone else had shown any pellet or bullet mark anywhere.      Most of  the empties  which were  found from within the compound and  outside were  reported to have been fired from 30  Spring  Field  gun  and  315  rifle  which  belonged  to Gurcharan Singh and Karnail Singh. Some of such empties were recovered form  neat the  building and  also from the places outside the  compound of  that building.  Surprisingly,  the fire arms  alleged to be belonging to the accused and seized by the  Investigating Officers  were not  sent to  Ballistic Expert to  ascertain when  the any of them was used recently and whether  any of  the empties found from the place of the incident  could   have  been   fired  therefrom.  All  these circumstances  create   a  serious   doubt  regarding   Head Constable,  Chanan   Singh  and  his  two  companions  being impartial and reliable witnesses.      Further, the  evidence of  Head Constable,  Chanan Sigh and Sub-Inspector, Iqbal Singh is that after Hear Constable, Chanan Singh had informed him about the incident and the FIR was recorded  both of  them had  left the police station and reached the  place of incident at about 3 a.m. Their version that they  could see  the dead  bodies of  Major Singh,  Jit Singh, Dayal  Singh, Nazir Singh and Nachhattar Singh in the morning is  difficult to  be accepted and it creates a doubt also regarding  their going  to the  place of  incident at 3 a.m. A  serious doubt  also arises  regarding the FIR having been recorded  by Iqbal Singh at 1.30 a.m. as stated by him. There appears to be some substance in the defence suggestion that it  was recorded by him after his return from the scene of offence  at about  12 noon.  If  only  the  beginning  of exchange of  fire between  two factions was reported by Head Constable Chanan  Singh, then as an impartial police officer he would have on his return registered  an offence regarding the homicidal deaths of those five persons whose dead bodies were found  by him.  Even though accused Harjinder Singh had gone to  the police  station in the morning and had injuries on his  person he  was  sent  to  the  doctor  only  in  the afternoon. It is  also unlikely that accused Herjinder Singh would not have informed the police to register his complaint against those who had killed his five companions and injured him. The  explanation of  Iqbal Singh that he did not record any complaint  with respect to the homicidal deaths of those five persons  and injuries  to Harjinder  Singh as he had by then come  to the  conclusion that  Joginder Singh  and  his companions were  the aggressors  and the deaths and injuries were caused by Karnail Singh, Ghala Singh and Mohinder Singh in exercise  of their right of private defence and thus they had committed  no offence.  By that  time he had not come to know how  and when those five persons had received injuries. The dead  bodies were  found  lying  scattered  outside  the compound of  that building.  Two of  them, Major  Singh  and Nachhattar Singh,  had died  not because  of gun shot wounds but because  of incised  injuries.  Neither  Head  Constable Chanan Singh  nor any  pf the  constables who  had  remained behind or anyone else had informed Iqbal Singh as to how and when the  incised injuries  were caused to those persons. As the police  officer of some standing he would have certainly realised that  the assailants  of  those  persons  had  gone outside the compound and chased them and assaulted them. The body of  Jit Singh  who had  received the gun shot injury on his head  was found  lying in  the  north-western  direction behind the  building. All these circumstances who that Iqbal

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Singh was  acting with a determined mind and was out to make out a  case of self-defence for the assailants of those five persons and  Harjinder  Singh.  Chanan  Singh  and  the  two constables who  were examined  as eye witnesses also fell in line with  Iqbal  Singh  and  that  proves  that  they  were partisan witnesses  and were not giving out the true version regarding the incident.      Karnail Singh,  Gurcharan Singh and Mohinder Singh, who had stated  to have  acted in  exercise of  their  right  of private defence,  were not  examined as witnesses. They were the best  witnesses who  could have  explained  under  which circumstances and  at what  point to  time they  had  caused injuries to  the five  deceased and Harjinder Singh. No good reason was  given by the Public Prosecutor for not examining them as  witnesses in  the case. That also creates a serious doubt regarding fairness of the trial.      As we  are of  the view  that neither the investigation not the  trial was  fair and  we find that the eye-witnesses examined in  this case  have not told the truth, this appeal will  have  to  be  allowed  and  the  conviction    of  the appellants will  have to  be set aside. We accordingly allow this appeal,  set aside  the conviction  and sentence of the appellant. As  the accused are on bail, their bail bonds are ordered to be cancelled.