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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: GURDIAL SINGH AND PARGAT SINGH

DATE OF JUDGMENT19/03/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ GOSWAMI, P.K.

CITATION:  1974 AIR 1871            1974 SCR  (3) 657  1974 SCC  (4) 494

ACT: Indian   Penal  Code--Sec.  302  read  with   Sec.   34--Two contradictory versions presented by prosecution--Benefit  of doubt must go to the accused.

HEADNOTE: P  & G were convicted u/s. 302 and were sentenced to  death. The High Court set aside the convictions of both the accused and acquitted them.  The State has filed the present appeals against the acquittal of the 2 accused by special leave. The  prosecution case is that on account of a  family  feud, the  deceased  was murdered by one P. with  a  double-barrel gun, in front of one A, the widow of a rich landlord. The   trial  court  accepted  the  prosecution  version   of occurrence  and  relied  upon the evidence of  A  which  was corroborated  by the youngest son and the daughter, that  P, was holding a gun etc. and he was convicted along with G, an associate. On appeal the High Court found that the F.I.R. was  recorded subsequently  after due deliberation and consultation.   The High  Court also found that the witnesses, relied on by  the trial court had supported another version of the occurrence. It  was found that an attempt had been made to improve  upon the  story  with  a view to save D, the eldest  son  of  the landlord.    The  High  Court,  therefore,  set  aside   the conviction of the accused and acquitted them. Dismissing the appeal, HELD  : In the present case, the prosecution witnesses  have come  out with two inconsistent versions of the  occurrence. One  version of the occurrence is contained in the  evidence of  the  witnesses  in Court, while  the  other  version  is contained  in  their  statements  made  before  the  police. According  to the version given before the Court, it was  P, who shot dead the deceased while according to other version, it  was  G of village Ramana, who was  responsible  for  the crime.  Again, according to the version given in Court,  the occurrence was witnessed by A. As against that, the  version contained  in  the  police  statement was  that  A  had  not witnessed  the occurrence.  In view of  these  contradictory versions,  the High Court rightly set aside  the  conviction and there is no ground for interference by this Court in the present appeal. [664B-D]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos.  I & 2 of 1971. Appeals  by special leave from the judgment and order  dated the  13th May 1970 of the Punjab and Haryana High  Court  in Criminal Appeals Nos. 170 and 201 of 1970. Janardan Sharma and R,.-N. Sachthey, for the appellant. Nuruddin Ahmed and U. P. Singh, for the respondents. The Judgment of the Court was delivered by KHANNA,  J.  Pargat  Singh  (31)  of  village  Taraori   was convicted by learned Sessions Judge Karnal under section 302 Indian Penal Code and was sentenced to death.  Gurdial Singh (35) of village Ramana was 658 also  tried along with Pargat Singh and was convicted  under section 302 read with section 34 Indian Penal Code.  He  too was sentenced to death.  On appeal and reference the  Punjab and Haryana High Court set aside the conviction of both  the accused and acquitted them.  The State of Haryana has  filed these  appeals against the acquittal of the two  accused  by special leave. The  prosecution  also filed charge  sheet  against  Gurdial Singh of village Taraori, a brother of Pargat Singh accused, but as he was found to be insane, the committing  magistrate directed  that his case be separated and a separate  challan be  filed  against him.  The said Gurdial Singh  of  village Taraori  was, in the meanwhile, directed to be sent  to  the hospital for his treatment. The  prosecution case is that Avtar Kaur (PW 3) was  married about 33 yearsago  to Gurinder Singh of  village  Shamgarh. Gurinder Singh wasone  of the biggest landlords of  Karnal district and belongedto a family of Chiefs.  About four. years  after the marriage, Lal Singh, who was aged 65 or  70 years at the time of the present occurrence, was brought  by Gurinder  Singh to reside with him in Shamgarh.   Lal  Singh was  previously in the service of the mother of Avtar  Kaur. Lal Singh was respected like a Guru and was known as Dadaji. Gurinder  Singh  used  to consult Lal  Singh  deceased  with regard to his affairs and generally acted upon the advice of Lal  Singh.  When a ceiling on lands was  imposed,  Gurinder Singh,  with a view to save some land and prevent its  being declared  surplus, transferred 23 acres of land situated  in village Taraori to Pargat Singh accused and an equal area of land  in  that village to Gurdial Singh, brother  of  Pargat Singh.   Pargat  Singh and Gurdial Singh were sons  of  Sher Singh, maternal uncle of Gurinder Singh, and used to  reside with  him.  After the land had been transferred by  Gurinder Singh  to  Pargat Singh and Gurdial Singh, they  shifted  to village Taraori which is at a distance of about 4 miles from Shamgarh.  They, however, used to visit Shamgarh off and on. Gurinder  Singh  died  a  few  months  before  the   present occurrence.   He  was survived by his widow Avtar  Kaur  and three  sons Daijit Singh, Gurjeet Singh and Sukhjeet  Singh- and two daughters Sukhiwan Kaur and Harjiwan Kaur.  Sukhjeet Singh  and  Harjiwan  Kaur  were  the  only  two   unmarried children.  Sukhjeet Singh was a student of Doon School Dehra Dun,  while Harjiwan Kaur was studying in another school  in Dehra  Dun.   Both of them were present in  their  house  at Shamgarh  during the days of the present  occurrence  having come  there  during  winter vacation.   The  house  is  also described during the course 659

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of evidence as a fort.  Daljit Singh and Gurjeet Singh  also used to live: in that house.  Sukhjiwan Kaur too was present there on the night of occurrence. After  the  death  of Gurinder Singh,  Avtar  Kaur  used  to consult  Lal Singh in every matter.  Gurinder Singh  at  the time  of  his death was constructing a  cold  storage.   One chamber  of the cold storage had been completed  during  the life  time  of Gurinder Singh, while the other  chamber  yet remained to be completed.  Some money was required by  Avtar Kaur  in  that connection.  Lal Singh  deceased  accordingly called Pargat Singh accused about 15 days before the present occurrence and told him that as Gurinder Singh had given  to him and his brother land worth rupees two lakhs, they should help Avtar Kaur when she was in need of money.  Pargat Singh accused then stated that he had nothing to do with that.  He also  abused Lal Singh and told’ him that he was  nobody  to demand the money.  Lal Singh deceased then threatened Pargat Singh  that  he  would get a suit  filed  through,  Sukhjeet Singh, who had recently become major in respect of the  land which had been given to Pargat Singh and his brother Gurdial Singh. Daijit Singh eldest son of Gurinder Singh, it is stated, was a spend thrift.  Lal Singh deceased and Gurinder Singh  used to tell Daijit Singh not to spend too much money.  After the death of Gurinder Singh, Daljit Singh demanded more land  in addition to the land which had been given to him by Gurinder Singh  in  his life time.  Demand was also  made  by  Daljit Singh  for  more money.  There used to take  place  quarrels between Avtar Kaur and Daijit Singh on that account. The case of the prosecution further is that on December, 11, 1968  Avtar  Kaur, Sukhjiwan Kaur, Harjiwan  Kaur,  Sukhjeet Singh and Lal; Singh took their meals in the dining room  on the ground floor of the fort.  Gurjeet Singh was on that day away  to Ferozepore to attend a marriage.   After  finishing the meals at 9.15 p.m. Avtar Kaur and her two daughters went to  her bed room on the upper Storey.  Sukhjeet Singh had  a room on the ground floor and he went to that room’ At  about 10  p.m. Avtar Kaur after finishing other work went  to  the room  of Lal Singh.  Lal Singh at that time sat on his  cot, while  Avtar Kaur sat nearby on a chair.  Avtar Kaur  during the course of her talk asked: Lal Singh to settle the matter about  Daljit  Singh and to give to him what  was  his  due. When  Avtar Kaur and Lal Singh deceased were  talking,  they heard  the  sound of a car in the outer  courtyard.   Daljit Singh,  Pargat Singh, Pargat Singh’s brother Gurdial  Singh, Gurdial’ 660 Singh  of Ramana and Rajinder Singh alighted from  the  car. Rajinder Singh belongs to village Bairsal.  He had  borrowed Rs. 3,000/- in connection with the election of Chanda  Singh to  the  Haryana Legislative Assembly in 1968.   Earlier  on that day Rajinder Singh refunded Rs. 1,500 out of the amount of Rs. 3,000/- to Ram Lal, who was working as an  accountant of  Gurinder  Singh’s  estate.  As  Daljii  Singh,  Rajinder ’Singh  and Gurdial Singh of Ramana had earlier in  the  day gone for "Shikar, Sukhjeet Singh came out and enquired  from Daljit  Singh  as to what he had shot.  Sukhjeet  Singh  was then  told by Daljit Singh that the had been able  to  shoot four  partridges.  Daljit Singh then went ,upstairs  to  his own room taking his gun with him.  Sukhjeet Singh also  went to his own room.  About 5 or 10 minutes thereafter  Sukhjeet ’Singh  and  Avtar Kaur heard some footsteps  going  up  the staircase.   Pargat  Singh, his brother  Gurdial  Singh  and Gurdial  Singh of Ramana then came inside the  room  wherein Avtar Kaur was talking to Lal "Singh deceased.  Pargat Singh

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was  holding a double barrel gun P2 in his hand.   The  said gun  belonged to Rajinder Singh.  Avtar Kaur  enquired  from Pargat  Singh  and others as to why they had  come  at  such ’late  hour.  Pargar Singh replied that they had  come  back after  Shikar.  Lal Singh then asked them as to whether  all three of them had become Shikaris.  Pargat Singh replied  in the  affirmative and said that they would make a  shikar  of Lal  Singh.   Pargat  Singh at the same time  fired  at  Lal Singh.  Before the shot was fired at Lal Singh, Pargat Singh and  his two companions made some signs to each other.   Lal Singh on receipt of the shot fell down on the spot and  died soon  thereafter.   Avtar Kaur was stunned  because  of  the incident.   Pargat Singh and his two companions  then  left. Harjiwan Kaur, Sukhjiwan Kaur and Sukhjeet Singh on  hearing the  gun shot came to the room where Avtar Kaur was  present and  were told about the occurrence by her.  Avtar Kaur  was then taken to her room.  Sukhjeet Singh was directed by  her to call accountant Ram Lal.  When Ram Lal came there he  was told by Avtar Kaur that Pargat Singh had killed Lal Singh by firing a shot with a double barrel gun.  Ram Lal was told to go  to the police station and to bring the police.  Ram  Lal then woke up the car driver and went in the car towards  the police  station.  When the car reached near the bus stop  of village  Shamgarh  on the Grand Trunk Road, Ram  Lal  saw  a police party which included Sub Inspector Ram Rikh.  Ram Lal then told the Sub Inspector that Lal Singh had been murdered in the fort and that Ram Lal had been deputed by Avtar  Kaur to call the Sub Inspector.  Sub Inspector Ram Rikh then went to the fort where Avtar Kaur made statement PD at 3 a.m.  to him.   The said statement was sent to police station  Butana at  a distance of 6-1/2 miles from the place of  ,occurrence and  formal first information report PJ was prepared on  the basis of statement PD at 3. 45 p.m. Inquest report  relating to  the  dead  ’body  was thereafter  prepared  by  the  Sub Inspector.   The  dead  body ’was sent to  the  mortuary  in Karnal.   Post  mortem  examination on the  ,dead  body  was performed by Dr. Jagdeep Singh at 4-30 p.m. on December 12. On.  the morning following the occurrence, i.e. on  December 12,  1968,  a  number of  persons  including  Daljit  Singh, Rajinder  Singh,  Pargat  Singh  and  the  latter’s  brother Gurdial Singh assembled at the 661 fort.  Sub Inspector Ram Rikh did not arrest Pargat Singh or his brother Gurdial Singh, Daljit Singh then produced gun P2 of  Rajinder Singh, along with an empty cartridge which  had been  fired from that gun.. These articles were  taken  into possession. During the course of investigation, it is stated, a  counter versions of the occurrence came to light, Sub Inspector  Ram Rikh  and  the  Deputy  Superintendent  of  Police  who  was supervising the investigation kept Superintendent of  Police Brar  (DW  1) informed of the investigation.   Final  report under,  section  173 of the Code of Criminal’  Procedure  in court  was filed by Sub Inspector Ram Rikh.  In that  report only  Gurdial  Singh  of village Ramana  was  shown  as  the culprit.The  names of Pargat Singh and his  brother  Gurdial Singh  were mentioned in column No. 2 of the  challan.   The reason  for that, according to Sub Inspector Ram  Rikh,  was that  those two persons had been; found on investigation  to be  innocent."  The two accused in  their  statements  under section  342  of the Code of Criminal  Procedure,denied  the prosecution  allegations which appeared against them in  the prosecution  evidence.   In  defence  the  accused  examined Superintendent of Police S. S. Brar who deposed that in view of the fact that there were two versions of the  occurrence,

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he  ordered  that before. ,any arrest was made,  a  thorough probe should be made in the matter, to find out the truth. The  trial  court accepted the prosecution  version  of  the occurrence,  and, in doing so, relied upon the  evidence  of Avtar Kaur.  It was further held that the evidence of  Avtar Kaur  was  corroborated  by  that  of’  Sukhjeet  Singh  and Harjiwan Kaur, who had deposed that when they’ looked out on hearing  the gun shot, they saw Pargat Singh holding  a  gun and  two  Gurdial Singhs going  downstairs.   Regarding  the counterversion  of  the occurrence which appeared  from  the police   statements,  of  Avtar  Kaur,  Sukhjeet’Singh   and Harjiwan  Kaur, the trial court held that compared  to  that version,  the version as given in the evidence of the  above witnesses  in  court was reliable.  In the  opinion  of  the trial  court, the investigation of the case was tainted  and unfair.  The argument that there was delay in recording  the report was rejected. On  appeal the learned Judges of the High Court  found  that the,circumstances   of  the  case  showed  that  the   first information  report was. recorded subsequent to the time  at which it purported to have been recorded and was the  result of deliberation and consultations The High Court also  found that the witnesses, upon whose testimony, reliance had  been placed by the trial court, had supported another version  of the occurrence.  It was found that an attempt had been  made to improve upon the story with a view to save Daljit  Singh, eldest son of Avtar Kaur, Ocular evidence was also found  to be  not  in consonance with the medical  evidence.   In  the result  the  High Court accepted the appeal, set  aside  the conviction of the accused and acquitted them. We have heard Mr. Janardan Sharma on behalf of the appellant State and Mr. Nuruddin on behalf of the  accused-respondents and’ 662 are of the opinion that the judgment of the High Court calls for no interference. it is not disputed that Lal Singh deceased died as a  result of  gun  shot wound.  Dr. Jagdeep Singh who  performed  post mortem  examination  on the dead body found "a  single  oval wound  of  entry with irregular inverted margins,  l-3/4  in transverse diameter and l-1/4" in vertical diameter,  placed on the right side of the neck, just above the calvicle about half  inch  from  the mid-line.  The margins  of  the  wound showed  blackening  and scorching.  Hair of beard  were  not singed.  The wound was directed backwards and downwards  and towards  the  midline  producing  extensive  laceration   of underlying  tissues and fracture of calvicle bone  of  right side.  Right pleura was ruptured on the top and the  pleural cavity contained large amount of blood.  Upper lobe of right lung was lacerated completely.  Middle and lower lobes  were contused,  showing bleeding on the surface.  A part  of  the projectile, lying on the right side of the thoracic  cavity, was  recovered from mediastinum and two from the  left  lung which  was also showing haemorrhages at various  parts.   In the mediastinum big vassels were ruptured at many places and mediastinum  was  found containing large amount  of  clotted blood." The injuries were sufficient in the ordinary  course of nature. to cause death. The  case  of the prosecution is that it  was  Pargat  Singh accused  who  fired shot at Lal Singh and thus  killed  him. The  prosecution  for this purpose relied  upon  the  ocular evidence  of  Avtar Kaur (PW 3), who in the  course  of  her deposition  supported the prosecution case as  given  above. The High Court did not place reliance upon the testimony  of ,this  witness, and we find no sufficient ground to  take  a

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different   view.   Avtar  Kaur  was  confronted  with   her statement  made before the police.  In that statement  Avtar Kaur  stated  that after taking her meals, she went  to  her daughter’s  room and slept there.  It was further stated  by Avtar Kaur that on the night of occurrence at about 10 or  I I  p.m. Rupinder Kaur, wife of Daljit Singh, came  to  Avtar Kaur  and woke ’her up.  Rupinder Kaur also told Avtar  Kaur that  Daljit  Singh was ’Calling her below  in  the  drawing room.  Avtar Kaur further stated be,fore the police that she had been told by Gurdial Singh of Ramana ,,that in a drunken state  he  had  shot  dead Lal  Singh  deceased  and  he  be pardoned.   According to that statement of Avtar  Kaur,  she immediately  directed  that police be called  and  thereupon Gurdial  Singh of ,village Ramana tried to run away, but  he was secured by Pargat Singh and Daljit Singh.  Daljit  Singh also  snatched the gun from his hand, it is thus plain  that the version given by Avtar Kaur in her statement before  the police  was materially different.  In view of that fact  not much reliance can obviously be placed upon the testimony  of Avtar Kaur in court’. Another  fact of which note may be taken is that,  according to Avtar Kaur, she was sitting on a chair in the room of Lal Singh  and ,it was while sitting on that chair that she  saw the  occurrence.  No such chair was found in that room  when Sub  Inspector  Ram  Rikh  arrived there  on  the  night  of occurrence.   It is also nobody’s ,case that any  chair  was removed from that room after the occurrence. 663 The  absence of the chair in that roam creates  considerable doubt about the correctness of the evidence of Avtar Kaur. The prosecution has sought corroboration of the evidence  of Avtar  Kaur from the testimony of Sukhjeet Singh(PW  4)  and Harjiwan  Kaur,  (PW 5), according to whom they  saw  Pargat Singh  holding a gun and two Gurdial Singhs going  down  the stairs after the occurrence.  The version of these witnesses in   their  statements  before  the  police  was,   however, materially  different.   Sukhjeet Singh  stated  before  the police  that on reaching the drawing room he  enquired  from Daljit Singh as to what was the matter and that Daljit Singh then  replied  that Gurdial Singh had shot dead  Lal  Singh. The witness also stated before the police that Gurdial Singh of  village Ramana was lying at the foot of Avtar  Kaur  and was saying that under intoxication he had fired the shot and he be pardoned.  Harjiwan Kaur in her statement made  before the  police  stated that she had not seen anybody  going  or coming.   She had also not heard the sound of any gun  shot. According to that statement, she, her mother and sister were sleeping  in  her  room  on the  night  of  occurrence  when Rupinder Kaur came and woke them up. The High Court also gave cogent reasons for arriving at  the conclusion  that  the first information report  appeared  to have  been  recorded  much  later and not  at  the  time  it purported to have been done.  Police station Butana is at  a distance  of about 13 miles from Karnal.  The two place  are connected  by mettalled road on which buses ply  frequently. copy  of  the first information report was received  by  the Ilaka  magistrate at karnal at 2. p.m. If the  formal  first information  report had, in fact been prepared at 3.45  a.m. it  is not explained as to why the copy of the same was  not delivered  to the Magistrate on the morning of December  12, 1968.   Likewise if the inquest report was prepared  by  Sub Inspector  Ram Rikh shortly after recording report PD  at  3 a.m., there is no sufficient reason as to why the dead  body which  was sent in the trolly of a tractor to Karnal  should be  brought to the doctor not before 3.55 p.m. The  evidence

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that  it  took time to get the tractor ready  has  not  been accepted by the High Court and we are not inclined to take a different view. There  is  another  fact which also indicates  that  on  the morning of December 12, 1968 the police had no material with it  about the complicity of Pargat Singh for the  murder  of Lal  Singh  deceased.  Pargat Singh was  admittedly  amongst those  persons who assembled at the house of Avtar  Kaur  on the  morning of December 12, 1968.  Although  Sub  Inspector Ram  Rikh  noticed his presence, he did  not  arrest  Pargat Singh.   It  seems rather difficult to believe that  if  the first  information  report  had  been  recorded  before  the assemblage  of different persons including Pargat  Singh  on the  morning  of December 12, 1968 and the  name  of  Pargat Singh had been mentioned in that report as the assailant  of Lal Singh, the police Sub Inspector would not take him  into custody.. 664 Reliance was placed by the trial court upon the statement of Pargat  Singh made before the committing magistrate that  on December  I 1, 1968 he had gone to the room of Lal Singh  to pay respects.  There is, however, nothing in that  statement to  show that it related to a visit at day time or at  night time.   No incriminating inference can in the  circumstances be drawn from that statement against Pargat Singh. The present is a case wherein the prosecution witnesses have come  out with two inconsistent versions of the  occurrence. One  version of the occurrence is contained in the  evidence of  the  witnesses  in court, while  the  other  version  is contained  in  their  statements  made  before  the  police. According to the version given in court, it was Pargat Singh who  shot  dead the deceased, while according to  the  other version  it was Gurdial Singh of Ramana who was  responsible for  the  crime.  Again, according to the version  given  in court,  the  occurrence  was witnessed by  Avtar  Kaur.   As against that, the version contained in the police  statement was  that Avtar Kaur had not witnessed the  occurrence.   In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the  conviction of the accused could not be sustained.  We see no ground  to interfere with the judgment of the High Court.  The  appeals fail and are dismissed. S. C.                           Appeals dismissed. 665