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CASE NO.: Appeal (crl.)  130 of 2000

PETITIONER: State of Punjab                                                   

RESPONDENT: Hakam Singh                                                         

DATE OF JUDGMENT: 31/08/2005

BENCH: B.N. AGRAWAL & A.K. MATHUR

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

               This Criminal Appeal filed by the State of Punjab is  directed against the judgment and order of acquittal dated April 18,  1996  whereby the Division Bench of the Punjab & Haryana High  Court has acquitted the respondent- accused Hakam Singh from the  charge  under Section 302 of the Indian Penal Code (hereinafter to  be referred to as  the ’I.P.C.’) for committing the murder of the  deceased Harbans Singh. Learned Sessions Judge, Bhatinda  convicted the respondent- Hakam Singh under Section 302 I.P.C.  and sentenced him to undergo imprisonment for life and to pay a fine  of Rs.2,000/-. In default of payment of fine the respondent was  directed to undergo a further imprisonment for four months. Learned  Sessions Judge  also convicted the respondent under section 302/34  I.P.C. in respect of the death of Mohinder Singh and sentenced him  to undergo  imprisonment for life and a fine of Rs.2000/-, the  respondent was also convicted under Section 307/34 I.P.C for  causing injuries to Sadhu Singh and was sentenced to suffer rigorous  imprisonment for a period of seven years and to pay a fine of  Rs.2000/-; in default of payment of fine, the respondent was to  undergo further rigorous imprisonment for four months. The  respondent  was also convicted under Section 449 I.P.C. and was  sentenced to undergo rigorous imprisonment for a period of five years  and to pay a fine of Rs.1000/- ;in default of payment of fine the  respondent was to undergo R.I. for two months. All the substantive  sentences were directed to run concurrently.  Learned Sessions  Judge acquitted the remaining accused persons i.e.  Mander Singh,  Nachhatar Singh and Bikkar Singh.  The High Court  has dismissed  the criminal revision filed by Harbans Kaur-the wife of the deceased,  Harbans Singh for compensation.  We are not concerned with regard  to the acquittal  of the remaining accused persons as there is no  State appeal before us.Therefore, we are concerned  in the present  State Appeal  with regard to the acquittal of the respondent- Hakam  Singh.

       The prosecution case, in brief, was that an F.I.R. was  registered  on the statement of Jagdev Singh (deceased), the brother  of deceased Harbans Singh on 25.8.1990. That Jagdev Singh,  Harbans Singh and Sadhu Singh were brothers. While Harbans  Singh and Jagdev Singh lived in the same house, Sadhu Singh lived  in a separate house. Sadhu Singh and Jagdev Singh  had licenced  .12 bore guns. They purchased about 15 marlas of land on which   accused Bikkar Singh and others  had heaped their manure. On  24.8.1990 a village Panchayat was convened for getting the land  vacated. In the said Panchayat meeting it was decided that they  should vacate the land after getting it demarcated by the Patwari.  On

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25.8.1990 at about 9.30 A.M.  Harbans Singh (deceased) and  complainant Jagdev Singh were present in their house when   respondent \026 Hakam Singh armed with a .303 bore rifle while other  accused -  Mander Singh and Nachhatar Singh @ Pamma each  armed with a .12 bore double barrel gun along with other assailants \026  Darshan Singh armed with a .315 bore rifle and Bhola Singh armed  with a .12 bore single barrel gun entered their house raising ’lalkara’  (shouting).  Bhola Singh immediately on reaching there, fired a shot   and abused them  saying , "come out, we will deliver you the  possession of the place of manure heaps".  Harbans Singh rushed  into the house and brought a licenced gun of the complainant, Jagdev  Singh. Respondent- Hakam Singh  then fired a shot with his .303  bore rifle at Harbans Singh which hit his left buttock and pierced  through his groins.  In that injured condition, Harbans Singh fired a  shot with his gun in self defence which hit Bhola Singh. On hearing   the noise of the fire shots, other brother  Sadhu Singh came out of his  house.  Accused Darshan Singh fired a shot with his .315 bore rifle at  Sadhu Singh which hit him on his right arm. Sadhu Singh ran away  from there and entered  in his  house and thereafter scaling his wall  and entered into the house of  Mohinder Singh.  Mohinder Singh  came out from his house and ran towards the street.  One of the  assailants namely Darshan Singh fired a  shot with his.315 bore gun  at Mohinder Singh which hit on his back. The accused persons kept  on firing shots with their respective guns. Jagdev Singh witnessed the  entire incident from the roof of his house clandestinely.  It is alleged  that on hearing  the alarm, P.W.5- Baldev Singh ( son of Mohinder  Singh, deceased) and others  reached there to save them  Mohinder  Singh and Bhola Singh died at the spot. Jagdev Singh sent his  brothers, Sadhu Singh and Harbans Singh to the Civil Hospital,  Bhatinda in a tractor trolley along with his sister-in-law, Malkiat Kaur  and Harbans Kaur.  Jagdev Singh went to the Police- station and  lodged the report which was recorded by the S.H.O.- Satwant Singh  (P.W.7). The said report was treated as the formal F.I.R. and special  report was sent to the Judicial Magistrate on the same day at 8.00  p.m.  Though originally Nachhatar Singh was not one of the accused  but after the examination of Jagdev Singh, the complainant, accused  Nachhatar Singh @  Pamma was also put on trial. But Jagdev Singh  died subsequently and therefore, his evidence  could not be recorded  in the Court.  Darshan Singh was declared as a proclaimed offender.  The accused persons pleaded not guilty and put their version of the  incident.

       The prosecution in its support examined number of witnesses  but primarily, the star witness was P.W.1, Dr.Gupta, P.W.2 Dr.Malik  and  P.W.3- Harbans Kaur the wife of the deceased Harbans Singh.  Sadhu Singh, the injured eye witness as P.W.4, Baldev Singh  (P.W.5), son of Mohinder Singh, Sub-Inspector- Satwant Singh,  S.H.O. as P.W.7 was the Investigating Officer. Though Jagdev Singh  was also one of the witnesses on whose complaint the F.I.R. was  registered but he died before the trial and as such his statement  could not be recorded. Prosecution examined other formal witnesses  also.

       Learned Sessions Judge after completion of the trial convicted   the respondent- Hakam Singh under Section 302 I.P.C. for causing  the death of Harbans Singh and also convicted under Section 302  read with Section 34 I.P.C.  in respect of the murder of Mohinder  Singh  and also convicted under Section 449 I.P.C. for entering into  the house of Harbans Singh with a view to murder him.  The  respondent \026 Hakam Singh was also found guilty under Section  307/34 I.P.C. in respect of the injuries caused to Sadhu Singh which  were in fact caused by companion Darshan Singh. Aggrieved against  this conviction,  the respondent- Hakam Singh filed an appeal before  the High Court of Punjab & Haryana  and  no State appeal was filed  by the State against acquittal of other accused persons. The High

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Court acquitted  the respondent- accused Hakam Singh from all the  charges. Hence the present State Appeal against acquittal of  accused Hakam Singh.

       Learned counsel for the appellant- State has taken us to the  statements of P.W.3- Harbans Kaur, P.W.4 \026 Sadhu Singh, P.W.5 \026  Baldev Singh and P.W.7- the Investigating Officer. He has submitted  that  P.W.3- Harbans Kaur who  is the wife of the deceased Harbans  Singh is a reliable witness and her testimony has been wrongly  discarded without proper appreciation of evidence   by the High Court  as a result of which grave injustice has taken place. As against this,  learned  Senior counsel for the respondent has seriously contested  and submitted that the appreciation of the evidence done by the High  Court was correct and there is no reason to reverse the order of  acquittal of the respondent- Hakam Singh.  Learned counsel for the  respondent submitted that  it is settled principle of law that  the  appreciation of evidence which has been done by the High Court if  not perverse then this Court should not interfere with the order of  acquittal in appeal.  Learned counsel  further submitted that this Court  is always very slow in interfering with the order of acquittal unless  there is sufficient reasons. Learned counsel further submitted that   the trial court has not believed  the evidence of  the other witnesses  though believed the evidence of P.W.3 and P.W.4 partly. Therefore,  the view taken by the High Court in acquitting the respondent is not  perverse. The High Court has correctly appreciated the material  contradictions in  the testimony of P.Ws. 3 and 4 and has rightly given  the benefit of doubt to the respondent. Learned counsel for the  respondent further submitted that  the prosecution story does not tally  with the medical evidence.  It was also pointed out that there was a  delay in sending the report to the Magistrate  which reached him at  8.00 P.M. whereas the incidence took place at about 9.30 A.M. and  the F.I.R. was lodged at 10.00 A.M.  It was pointed out by learned  counsel that the defence theory put up by the respondent is more  plausible and in the given case the High Court has rightly appreciated  the evidence and acquitted the respondent.  It was also pointed out  that the injuries on Bhola Singh was not explained and as to how  Bhola Singh received the second injury with fire arm.  It was further   pointed that no report was sought for from the Ballistic expert about  the guns and  recoveries of the empties recovered from the scene of  occurrence. It was also  pointed  out that  the blood stained clothes of  Harbans Kaur were not seized nor blood stains from all places. Under  these circumstances learned counsel for the respondent  has  submitted that looking to the material contradictions and negligence  on the part of the investigating agency in not seizing the arms and  ammunitions and not seizing the empties  from the site and in not  seizing the blood stained clothes of Harbans Kaur,  the High Court  has rightly given the benefit of doubt to the respondent. Learned  counsel for the respondent  invited our attention to  the following  decisions of this Court.

1.      (2002) 9 SCC 356- State of Haryana v. Sher Singh & Ors. 2.  (2004) 9 SCC 310 \026 State of U.P. v. Ram Bahadur Singh       and others.           3. (2004) 12 SCC 398- Chanakya Dhibar (Dead) v. State of                     WB.& Ors. 4.      JT 2004 (4) SC 80- Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel & Ors.

In fact, all these cases which have been cited by learned counsel for  the respondent  are with regard to the principle laid down by this  Court. As far as legal propositions are concerned, there is no two  opinion  in our mind. But whether the ratio of these decisions will help  the respondent in the present case will be examined by us herein  after.

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       In order to appreciate the prosecution case we shall examine  the statement of P.W.3- Harbans Kaur, the wife of the deceased  Harbans Singh who  unfolded the whole drama as it happened in her  house.  In fact, we are primarily concerned in the present  appeal  against acquittal of Hakam Singh only.  

       P.W.3- Harbans Kaur has deposed that on the fateful day at  about 9.30 A.M.  when her husband, Harbans Singh the deceased  and his brother Jagdev Singh were present in their house at that time  Darshan Singh , Bhola Singh (deceased), Nachhatar Singh @  Pamma Singh, Mander Singh and Hakam Singh came in front of their  house and all of them entered inside the outer gate of the house.  Hakam Singh and Darshan Singh had rifles while the remaining  accused were armed with 12 bore guns.  It is alleged that at the time  of entering into their house Darsan  Singh and Bhola  Singh started  raising ’Lalkar’  saying that they would teach them a lesson for taking  possession of the plot of Bikker Singh.  First of all Bhola Singh fired a  shot from his gun. That shot was aimed at them i.e. her and her  husband but it did not hit. Meanwhile, her husband, Harbans Singh  picked up the licensed gun of his younger brother Jagdev Singh from  inside the house.  Her husband Harbans Singh stepped forward up to  a distance of 5/7 Karams towards the side of the accused with the  licensed gun of Jagdev Singh but Hakam Singh aimed the gun   towards her husband. Thereafter,  her husband-Harbans Singh   retraced his steps and took a turn, but respondent Hakam Singh fired  a shot from his gun hitting on the back side of the buttock of her  husband, Harbans Singh.  Then Harbans Singh fired two shots from  the licensed gun of Jagdev  Singh in self-defence. One shot hit on the  flank and the other on the head of Bhola Singh. The accused party  then started taking care of their companion Bhola Singh who was  injured. Thereafter, she put a jaffa around her husband, Harbans  Singh and took him inside the baithak for his safety and bolted the  door from inside. Thereafter, it is alleged that  multiple shots were  fired but she  did not open the door. After some time accused  persons left that place.  Thereafter Jagdev Singh came down and  knocked the door and on recognizing his voice she opened the door.   Jagdev Singh left the house to find out the welfare of Sadhu Singh  who is the brother of the deceased, Harbans Singh and he came to  know that Sadhu Singh has also received injuries.  Thereafter a  tractor trolley was brought and Harbans Singh was placed in injured  condition inside the tractor trolley  along with Sadhu Singh and they  took them to the hospital.  Jagdev Singh went to the Police-station to  lodged the F.I.R.  Meanwhile, Harbans Singh died on the way.  This  is the long and short story of P.W.3, Harbans Kaur  an eye witness  who has seen the death of her husband and she unsuccessfully tried  to save her husband. Her testimony has been put to a very close  cross-examination and during the cross-examination she was  confronted with her  statement under Section 161 of the Code of  Criminal Procedure.  Attempt was made to discredit her testimony as  to the fire arms used by the respondent i.e. whether  the gun from  which the respondent fired was a .303  bore rifle  or a 12 bore double  barrel gun and the manner of firing  in which Bhola Singh received  two injuries; one from the gun and the other from the rifle and that  whether the deceased Harbans Singh was competent to fire  the shot  and that  her blood stained clothes were not recovered by the Police,  in order  to discredit her testimony.  After closely going through the  statement of P.W.3 we are of the opinion that P.W.3 is a truthful  witness and unsuccessful attempt of the defence to confront her with   different types of fire arms i.e. whether it was a rifle  or  it was a gun  shot injury fired through 12 bore gun or .303 rifle; all  this cross- examination was directed against this rustic villager in order to  discredit her testimony. This is most unrealistic approach. We fail to  appreciate how can a rustic village lady would explain about bore of  gun or rifle.  P.W.3  whose presence  in the house was quite natural

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and she having clearly identified the respondent who  fired the gun at  her husband should be enough to establish the factum of whole  prosecution story.  To expect from her to give the description in a  photogenic manner is asking too much. The High Court instead of  entering into split hairing the testimony of this witness with regard to  the fire arms used in the occurrence should have concentrated more  on the hard truth of the matter  instead of finding fault with her  testimony. We fail to understand  the manner in which the testimony  of this witness has been appreciated by the High Court.  Sometimes  while appreciating the testimony of rustic villagers we are liable to  commit mistake by loosing sight of  their rural background and try to  appreciate testimony from our rational angle. When a lady is  confronted with number of intruder in her house armed with deadly  weapons and showering bullets she can not give a very accurate and  photogenic version as whole thing happened in a few minutes.  Therefore,  while appreciating such testimony Court should give due  regard to their rural background and the whole scenario in which the  incident happened. She has narrated the whole incident as it  happened and also stated that her husband also fired and that shot  killed Bhola Singh.That lends considerable support to the testimony  of this witness. She was only witness  at the occurrence and she has  stated what has  happened in her house and  none was there except  Jagdev Singh who had escaped for his life by going out of the house   but unfortunately he  died.  An attempt was  made to discredit her  testimony with regard to the second injury caused to deceased Bhola  Singh.  It is contended that Bhola Singh received two gun shot  injuries; one is gun shot injury and the other is a shot from the rifle.   How can she account for rifle injury when there was firing spree was  going on and other assailants were armed with guns and rifle.  She  has categorically stated that her husband fired two shots from the  licensed gun of Jagdev Singh in self defence, one shot hit on the  flank and the other hit on the head of Bhola Singh, but  the attempt  made by the defence to discredit her testimony on the score of  second injury received by deceased Bhola Singh is of no avail. If she  really wanted to give a wrong version of  incident she could have  totally exonerated her husband . But she has categorically stated that  the shot fired by her husband from the gun hit Bhola Singh. Whether  both the shots fired by her husband hit Bhola Singh or one, she  cannot depose in such a photogenic manner.  But she admitted that  one of the shots hit Bhola Singh when there was exchange of fire  from the accused side.  She had categorically deposed that Hakam  Singh fired a shot from the rifle hitting on the back side of the buttock  of her deceased  husband, Harbans Singh. Attempt was also made to  discredit her testimony with regard to the medical evidence that   when the deceased sustained  the injuries from a fire arm from the  rifle of Hakam Singh he could not have fired shots from the gun  and  the Police did not recover the blood from the place of incident and the  blood-stained clothes of P.W.3 were also not collected by the Police.                   So far as the medical evidence is concerned, P.W.2 is  Dr.S.K.Gupta who conducted the post-mortem examination. P.W.2 no  where says that Harbans Singh was incapable of firing shot, likewise  Dr.Malik. Moreover, whenever there is conflict between medical  evidence and ocular testimony normally ocular testimony should be   preferred  unless it  belies  fundamental facts.  Moreover when the  ocular testimony of P.W.3  which speaks volume that her husband  fired two gun shots  which proved fatal so far as Bhola Singh is  concerned, that leaves no manner of doubt that the gun shots  were  fired by Harbans Singh. If this witness wanted she could have saved  her husband by saying that the shot fired by her husband did not hit  Bhola Singh, the deceased.  Therefore, so far as the truthfulness of  the testimony of this witness is concerned, it is beyond doubt,   secondly why should she wrongly state the facts because her  husband was already dead and she would be  the least person to  wrongly involve a wrong person.

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               It was also contended the copy of F.I.R. reached  Magistrate late. It is true it was belated one but this alone is not  enough in the present case to be fatal.  P.W.4 - Sadhu Singh  was injured witness. He has deposed  that the whole incident took place in the house of deceased Harbans  Singh. He heard the sound of firearm, he came out of his house and   he saw all the accused persons and when accused person saw him,  Darshan Singh fired two shots immediately. One of the shots hit him  on his right arm but some how he managed to enter his house and  bolted from inside. Then he climbed down to the house of Mohinder  Singh with the help of his wife.  So far as the testimony of P.W.4 is  concerned,  it stands fully corroborated that these accused persons  were firing at the house of his brothers, Harbans Singh and Jagdev  Singh and when he came out to find out the cause, he also fell victim  to these accused persons. He has only witnessed the incident to the  extent of shots being fired by  the accused persons  He  could not  see what happened inside the house Therefore, he corroborates the   testimony of P.W.3 \026 Harbans Kaur to this extent.  Therefore, so far  as the testimony of P.W. 3 is concerned,  she is truthful witness.  She  is  wholly  reliable witness  and there is no reason to disbelieve her.

       The High Court has disbelieved her testimony on the grounds   i.e. on the manner of firing and recovery of the guns, non seizure of  blood stained  clothes but these short-comings hardly impeach her  testimony  In order to impeach her testimony technical questions  were asked to her which was not  the correct approach for discarding  her testimony. Therefore, we are of the opinion that the High Court  has committed an error in discarding the testimony of this witness on  technical grounds  de hors the factual statement given by her.

       Learned counsel for the respondent has also tried to make out  that the defence version is more probable. The defence version was  that in fact Bhola Singh who was coming for bus stop was first  attacked by the prosecution party and in retaliation the accused  persons went there and  that the prosecution could not explain the  second injury to the deceased Bhola Singh. We do not think that the  defence version improbablises the prosecution story.  It is just an  afterthought theory put up by the defence to improbablise  the  prosecution story.  But the facts as mentioned above particularly  the  testimony of P.Ws. 3 & 4 sufficiently lend support to the prosecution  story.

       It was also pointed out by learned counsel for the respondent  that no fire arms were recovered and no seizure  has been made of  empties.  It would have been better  if this was done and it would   have corroborated the prosecution story.  Seizure of the fire arms and  recovering the empties   and sending them for examination by the  Ballistic expert would have only corroborated the prosecution case  but by not sending them to the Ballistic expert in the present case is  not fatal in view of the categorical testimony of P.W. 3 about the  whole incident.

       During the course of investigation a serious doubt was cast on  the fair investigation by the Investigating Officer and the investigating  Officer was subsequently changed but that does not render the  testimony of  P.W.3 unreliable.  After going through the testimony of  P.W.3, the wife of the deceased, Harbans Kaur it leaves no manner  of doubt in our mind that she is a truthful witness and her testimony  fully supports the case of the prosecution. The technical grounds  sought to be utilized by the High Court in discarding the testimony of  this witness no where shakes the truthful version given out by P.W.3,  Harbans Kaur. Therefore, we are of opinion that the conviction of  Hakam Singh  under Section 302, I.P.C. by the trial court for causing  the death of Harbans Singh  was correct and it should not have been

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reversed by the High Court.

       Now, coming to the question of trespass, that offence also fully  stands established on the basis of the testimony of P.W. 3, Harbans  Kaur that all alleged trespassed into  her house  to cause murderous  assault on her husband.

The injury caused to Sadhu Singh, there is no two opinion that   P.W.4, Sadhu Singh  has categorically stated in his  testimony that  the shots were fired by one Darshan Singh one of  which hit him  on  his arm. Therefore, the conviction of the respondent under Section  307/34 I.P.C. is established and  there is no reason to disbelieve this  witness.  

       Now, coming to the conviction of Hakam Singh so far as  causing the death of Mohinder Singh    under section 302 I.P.C.  read  with Section 34 I.P.C. is concerned, the only evidence is that of  Sadhu Singh and he has deposed that he has seen the whole  incident from the house of deceased Mohinder Singh from the iron  grill  which as per the finding  is that there is no iron grill in the house  from where he could witness the whole incident. Secondly, the  testimony of PW-5 Baldev Singh, son of deceased Mohinder Singh is  also not convincing as he could   witness the  whole incident from  long distance. Therefore,  we do not think that charge under section  302 I.P.C. read with Section 34 I.P.C. can be upheld against  Hakam  Singh for causing the death of deceased Mohinder Singh  Therefore,  order of the High Court acquitting the respondent  of this charge is  upheld.         For the foregoing reasons, the appeal is allowed in part,  Order  of  acquittal rendered by the High Court is partly set aside and the  judgment of conviction of respondent in relation to the charges under  Sections 302, 307/34 and 449 I.P.C. is restored. And if any fine is   recovered then that shall be paid to PW-3 Harbans Kaur.         Bail bonds of the respondent are  cancelled and  he is directed  to be taken into custody forthwith to serve out the  remaining period  of sentence.