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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: AJAIB SINGH.

DATE OF JUDGMENT20/01/1995

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) SAWANT, P.B.

CITATION:  1995 AIR  975            1995 SCC  (2) 486  JT 1995 (1)   433        1995 SCALE  (1)286

ACT:

HEADNOTE:

JUDGMENT: R.M. SAHAI, J.: 1.   In this appeal by grant of special leave under  Article 136  of the Constitution of India the question  that  arises for  consideration is whether the Order of acquittal  passed by  the  High  Court  of Punjab &  Haryana  is  so  palpably erroneous  or perverse that it is liable to interference  in the exercise of extraordinary jurisdiction by, this Court. 2.   In an unfortunate incident which took   place   at   11 P.M. on 16th December, 1976   on the G.T. Road just in front of Sat Kartar Cold Storage, Phagwara, two police officers of the Punjab Traffic Police appeared to have fallen out on the authority  to check the truck on the G.T. Road resulting  in death  of  one  Assistant SubInspector  of  Police  and  one constable and conviction of the respondent under Section 302 IPC who was Sub-Inspector of Police at the time of incident, but  since  the date of acquittal he has now  become  Deputy Superintendent  of Police.  There was no dispute  about  the time, date and place of incident.  Nor there was any dispute that  Assistant  Sub-Inspector  Gumam  Singh  and  constable Paramjit Singh died as a result of shooting from the service revolver  by  the Sub-Inspector Ajaib Singh.   The  dispute, mainly, was whether the incident took place as stated by the prosecution  and the shooting and killing by the  respondent was  unwarranted, unjustified and deliberate or it  was,  as claimed  by the respondent, in exercise of right of  private defence.   The  respondent  was tried  and  convicted  under Section  302  for committing murder of ASI Gumam  Singh  and constable Paramjit Singh and sentenced by the trial judge to undergo  life  imprisonment.  He was  also  convicted  under Section  27  of the Arms Act and sentenced  to  undergo  two years’ rigorous imprisonment.  All the sentences were to run concurrently.  His 436 co-accused  Balbir  Kumar was tried under  Section  302  but convicted under Section 323 IPC for causing simple hurts  to

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constable Jit Ram, P.W. 10, and Channan Singh, P.W. 13.   He was  directed to be released on probation.  Another  accused constable Jit Singh was acquitted of all charges.  The State did  not  file any appeal either against release  of  Balbir Kumar on probation or acquittal of Jit Singh.  But  revision was  filed by one Sukattar Singh for enhancing the  sentence of respondent from life imprisonment to death and convicting others suitably.  The High Court dismissed the revision  for enhancing  sentence  and further acquitted  the  respondent. The  State  is  aggrieved by acquittal  of  the  respondent. Since  both  the  trial  judge  and  the  High  Court   have considered the evidence in detail, it does not appear neces- sary  to refer to them, except the findings arrived by  them on  which there is not much dispute.  The findings  recorded by  the  trial judge were summarised by the  High  Court  as under:-               "(1) That the incident took place at about  10               P.M. on 15th December, 1976, on the G.T.  Road               just  opposite to the Sat Kartar Cold  Storage               at Phagwara;               (2)   That all the three: accused (Ajaib Singh               and  Balbir  Kumiar appellants and  Jit  Singh               acquitted  accused) were present at  the  spot               and  they had arrived there from the  side  of               Ludhiana in jeep No. PUJ 250.               (3)   That  at that time A.S.I.  Gurnam  Singh               along  with Constables Paramjit Singh and  Jit               Ram was present at the spot.  According to the               prosecution  version, Constable Chanan  Singh,               P.W.  was also with them.  However, that  fact               is denied by the accused.               (4)     That  before the  main  incident  took               place, a verbal altercation took place between               A.S.I.  Gurnam Singh deceased and  S.I.  Ajaib               Singh   accused  and  thereafter   they   also               grappled with each other for some time.               (5)   That S.I. Ajaib Singh fired three  shots               with  his service revolver, one of  which  hit               A.S.I. Gurnam Singh and another hit  Constable               Paramjit Singh and as a result thereof both of               them had died at the spot.  The third shot hit               the shutter of the cycle shop of Subhash Chand               situated near the place of the occurrence." Apart  from  these findings, the trial judge held  that  the delay in lodging the FIR was not satisfactorily explained by the prosecution.  He did not believe that the two constables who  had accompanied the deceased would have hid  themselves in the nearby field for the whole night and then lodged  the report at 8.40 A.M. in the morning only after they came  out from the field.  The trial judge was not convinced that  any reasonable  person could have remained in the field  in  the wintery night on 16th December without any covering when the accused  undisputedly left the place immediately  after  the incident.   Another important finding recorded by the  trial judge was that the version of the origin of the incident, as given  by the accused, was acceptable in preference  to  one put  forward  by the prosecution.  The trial judge  did  not believe that the deceased was caught hold of by Balbir Singh and Jit Singh and thereafter the respondent fired the  shot. Nor did it find any truth in the version of the  prosecution that Paramjit Singh was thrown down on the ground by  Bzabir Singh  and Jit Kumar and then a shot was fired at  him  from point blank range by the respondent.  But the conviction was based 437

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as  the injuries found on the person of the  respondent  did not justify exercise of right of private defence. 3.   The  High Cowl while agreeing with the findings of  the trial  judge  on these aspects further held that  the  story given  by the prosecution that the deceased had gone to  the spot  for  nakabandi for apprehending the  robbers  did  not inspire  confidence as there was no entry to that effect  in the   Rojnamacha  (daily  diary)  of  the  Police   Station, Kapurthala.   The  High  Court held  that  no  material  was brought  on record to prove the First Information Report  of the  case  in  which those robbers  were  wanted.   Further, according  to  the  High Court, it  was  not  reasonable  to believe  that  Assistant Sub-Inspector Gurnam  Singh  accom- pained  by  congables would have gone on  such  a  dangerous mission  without any arm, except the service  revolver  with him.   The  High  Court  categorically  concluded  that  the deceased and his companions were checking the trucks on  the G.T.  Road  and  extracting money from  the  truck  drivers, ’therefore the respondent must have &It offended because  it amounted  to  not only an unnecessary  interference  in  the sphere  of  his jurisdiction but even to an illegal  act  of extorting  money from the drivers of the vehicles  by  them. In  this  situation, when Ajaib  Singh,  accused,  questions A.S.I.  Gurnam  Singh  regarding  his  and  his  companions’ misconduct, an altercation must have ensued between both  of them which was the cause of the main occurrence.  Thus,  the version of the origin of the occurrence as given out by  the accused appears to be more probable than the version of  the same  as put forth by the prosecution.  It has been even  so held by the trial court in its impugned judgment’.  Ile High Court  reversed  the  finding of the trial  judge  that  the injuries on the person of the respondent were self inflicted as reference in this behalf be made to the statement of  Dr. Ashwani  Kumar, P.W. 3. The aforesaid injuries  received  by the  members of the either party do not appear to have  been self  suffered by them.  The learned trial Court  has  found that the injuries of S.I. Ajaib Singh could be self suffered as deposed to by the doctor.  But this finding appears to be incorrect  because  even  with regard  to  the  injuries  of constables  Jit Ram and Chanan Singh, the doctor has  opined that  those  would  also  be  self  suffered.   It  is   not understandable how the learned trial Court in spite of  that medical evidence has held that the injuries of Constable Jit Ram and Chanan Singh P.Ws. could not be self suffered.   The High Court found that it appeared that Sub-Inspector  Balbir Kumar  of the accused party and constables  Paramjit  Singh, Jit  Ram and Chhanan Singh of the deceased party were  armed with dandas at the time of occurrence and they probably used the  same  against  their opponents.  The  High  Court  also placed reliance on the report of forensic expert that  shots had  been fired from the revolver of ASI Gurnam  Singh.   It did not believe the Version of prosecution that in fact  the revolver of Gurnam Singh was not taken out from the  holster because  when the investigating officer went at the spot  he found  it bolted with the belt inside the woollen  overcoat. The High Court consequently was of the opinion that the  act of  shooting was within the scope of ClausesI and II of  the exception  as  contained  in Section 100  of  the  IPC  and, therefore, the respondent was entitled to acquittal. 4.When  this appeal was heard carlier, late Sri  R.K.  Garg, the senior counsel who appeared for the respondent in ab- 438 sence of Sri Virender Kumar, the learned senior counsel  who appeared  for  the appellant, placed the entire  record  and urged  that no previous enemity between the  respondent  and

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the deceased was found even by the trial judge and it was  a case  of  mistaken identity for which it  was  the  deceased himself who was responsible.  The learned counsel had  urged that even the trial Judge had found that the respondent  had the  right  of  private defence.   But  the  conviction  was founded  as the deceased and his companions had used  dandas whereas  the respondent had used firearms. lie  argued  that the  delay  in criminal cases should not be  lost  sight  of According  to him, at this distance of time it was just  and expedient  to  compensate  the  deceased  family  monetarily instead  of entering into whether the respondent was  liable to be convicted.  He even offered a sum of Rs. 5 lakh not as a cover or an excuse but as a genuine feeling of remorse for what  happened under mistaken belief.  But when the  appeals were listed on the next date Sri Virender Kumar appeared and stated  that his clients refused to be compensated in  terms of  money He urged that he would like to ague  and  convince that  a  was  case of cold blooded murden  we  accepted  his request and the appeals were fixed for hearing afresh. 5.   Sri   Virendra  Kumar,  the  learned  senior   counsel, vehemently argued that the High    Court      has      acted perversely  as  once  it  found that  the  revolver  of  the deceased was in his holster, the entire defence version fell to  the  ground.  Learned counsel urged that even if  it  is assumed  as held by the High Court that the  respondent  and the  accused  had grappled in which dandas were  used  which caused  injuries to the respondent it did not give  him  the right  of  private  defence to shoot ASI  Gurnam  Singh  and Constable  Paramjit Singh.  The learned counsel  urged  that the report of the forensic expert could not be relied on  as the  mere  fact  that shots were fired from  it,  could  not establish  that  it was used at the time  of  the  incident. According to learned counsel, once the incident was admitted the burden was on the respondent to establish that he  acted in  exercise  of right of private  defence.   He  vehemently urged  that in it case where it was found that the  deceased party  had  not  used any fire arm the  respondent  was  not justified  in  shooting  and killing two  persons.   It  was argued  that  it was a cold blooded murder as  was  apparent from the nature of injuries.  He urged that the shot in  the forehead  and that also through and through  indicated  that the firing was done from a close range when the deceased had been rendered helpless.  On the other hand, Sri U.R.  Lalit, the learned senior counsel for the accused, placed  reliance on  the  findings recorded by the trial judge and  the  High Court  and  urged  that once  the  prosecution  version  was disbelieved,  the respondent could not be convicted  on  the plea taken by him in defence.  It was submitted that in  any case  it cannot be said that in the facts and  circumstances of  the  case  the finding recorded by the  High  Court  was perverse or palpably erroneous.  He urged that the  incident was of 1976 He appellant was acquitted by the High Court  in 1980.   In consequence of it he has been reinstated  and  is working as Deputy Superintendent of Police.  He,  therefore, pleaded for maintaining the order of the High Court. 6.   Prior  to  adjudicating on the  rival  submissions,  it appears  necessary  to  preface  it  with  few  observations general in nature but vital according to us.  Although 439 crime  never  dies nor there should be an sympathy  for  the criminal,  yet  human  factors play an  important  role  and reflect advertently or inadvertently in the decision  making process.   In this appeal there is a time lag of  more  than eighteen years from the date of incident and nearly  fifteen years  from the date of acquittal and its hearing.   By  any

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standard  it is shocking.  And this has been  aggravated  by still more shocking behaviour of the Government which  shall be  adverted later.  Speedy trial, early hearing  and  quick disposal  are  sine qua non of criminal  jurisprudence.   In some  countries like England days are fixed statutorily  for trial  of  cases.  Keeping an accused in custody for  a  day more than it is necessary, is constitutionally impermissible and violative of human dignity, freedom of life and liberty. The overcrowded court dockets, the phenomenal rise of public interest   litigation,   duty  to  ensure   enforcement   of fundamental rights undoubtedly keeps this court under stress and  strain.  But that cannot be an excuse for  keeping  the sword  of Damocles hanging on the accused for an  indefinite period of time.  It does not do any credit rather makes  one sad.  If the accused is not granted bail and serves out  the sentence  then  the  appeal is  rendered  academic  for  all practical  purposes.  And the right to  establish  innocence fades  away  in lack of enthusiasm and interest.  If  he  is granted  bail  then  long  delay may  give  rise  to  humane considerations.   Time heals the gravest scar and  mitigates deepest    injury   suffered   physically,   mentally    and emotionally.   Therefore, if the courts have  been  rendered helpless  and the exasperating delay is threatening  to  cat away  the system then the Government may consider either  to increase  the strength to clear the backlog or  devise  some mechanism  by which criminal appeals pending for  more  than reasonable time in higher courts should stand disposed of 7.   That the incident was shocking admits of no doubt.  May be  sitting  as the appellate court the task was  not  easy. But where the High Court has set aside the conviction  under Section  302  IPC  after delving  in  depth  and  discussing evidence  in  detail, should this Court  interfere,  merely, because  there  could have been other view?  We  agree  that this  Court  is not precluded or the  Court  hearing  appeal against  acquittal  is  not  prevented  from  examining  and reappreciating  the evidence on record.  But the duty  of  a court hearing appeal against acquittal in the first instance is  to satisfy itself if the view taken by acquitting  court exercising appellate jurisdiction was possible view or  not. And if the court comes to conclusion that it was not, it can on  reappreciation of evidence reverse the order.  What  had persuaded  us to rehear the appeal was that the revolver  of the  deceased was in the holster beneath the  overcoat.   At the first flush, it appeared to be a clinching circumstance. But  even after accepting this and ignoring the  opinion  of forensic  expert, the finding of the High Court  is  neither rendered  perverse  nor infirm nor palpably  erroneous.   It having been found by both the High Court and the Trial Judge that  the defence version that the respondent  received  the information  from a truck passing from that  direction  that some persons in the police uniform were forcibly  collecting money  from  the  truck  drivers  whereupon  the  respondent reached there, challenged the deceased who did not  disclose his identity rather tried to move towards the car giving  an impression  that  he was about to run  ,away  whereupon  the respondent rushed to- 440 wards  him,  grappled with him and was  injured  with  danda blows  used  by  three companions of the  ASI,  it  is  very difficult to say, as held by the High Court, that he had not developed a reasonable apprehension that if Ewe arm was  not used he was himself likely to be killed.  The respondent had nine  injuries.   They  have  been found  not  to  be  self- inflicted.  He was attacked by the deceased and his  compan- ions.   The  Trial Judge found that there  was  no  previous

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enmity.  The submission that the respondent was not entitled to  use firearm as he was attacked by dandas only cannot  be accepted.   That is not what is provided for by clauses  (1) and  (11)  of Section 100 of the IPC.  It  shall  depend  on facts  of  each case whether the assault was such  as  could cause reasonable apprehension that death would otherwise  be the  consequence of such assault.  If die High  Court  found that  the  respondent was assaulted by  three  persons  with dandas,  and  hence the accused developed a  reasonable  ap- prehension  that if he did not use the fire arm  then  death would  be  the consequence it cannot be said that  the  High Court guilty of taking palpably erroneous view In any  case, the  prosecution  could succeed on the strength of  its  own case and that, as observed earlier, has not bee found to  be authentic  even  by the trial judge.  The  conviction  being solely base on failure to establish that the respondent  had not  exceeded his right of self-defence, it would not be  an exercise  of  sound discretion to interfere with  the  order passed by the High Court. 8.Before closing this case, we shall be failing in our  duty if we do not record our serious disapproval of the manner in which  the Government not only reinstated but  promoted  the officer  when  the  appel by it against  his  acquittal  was pending in this Court.  In our opinion the Government  would have been well advised to adopt the scaled cover  procedure, a firmly established and well known practice in service  law Murder by a police officer is provocative.  The trial of the officer  and  conduct of the Government both are  in  public glare.   It  is  not the competency  or  efficiency  of  the officer  but his conduct and behaviour and approach  of  the Government towards such officer which is measured in  social scale.   Such unwarranted actions of the  Government  shakes the confidence of common man in the system.  He loses  faith in  it  when  a person who is standing trial  in  appeal  is promoted. 9.   For  the reasons stated above this appeal fails and  is dismissed.   The  respondent shall deposit a sum  of  Rs.  5 lakhs  within  a  period of one month from  today  with  the Registrar  of  the High Court as was offered on  his  behalf earlier.  Out of this amount, Rs. 3,50,000/- will be paid to the dependents of ASI Gumam Singh and Rs. 1,50,000/- to  the dependents of constable Paramjit Singh. 441