STATE OF PUNJAB v.

RAJINDER SINGH (Criminal Appeal No.1252 of 2006)

AUGUST 11, 2009 [HARJIT SINGH BEDI AND J.M. PANCHAL, JJ.]

[2009] 13 (ADDL.) SCR 622 The following Order of the Court was delivered:

O R D E R

This appeal by way of special leave arises out of the judgment  

and order dated 22.07.2004 in Criminal Appeal No. 481 of 1999  

passed  by  a  Division  Bench  of  the  High  Court  of  Punjab  and  

Haryana whereby the High Court had allowed the appeal filed by  

the  accused-respondent  Rajinder  Singh  setting  aside  his  

conviction  and  sentence  of  life  imprisonment  and  fine  under  

Section 302 IPC and under Section 27 of the Arms Act, by giving  

him the benefit of doubt and had also dismissed the appeal against  

acquittal filed by the appellant-State against the acquittal of Kuldip  

Singh and Rachhpal Singh, by the Sessions Judge, Faridkot.  

The brief facts leading to this appeal are as follows:

Madan  Lal  –  P.W.  2,  the  father  of  the  deceased-  Harinder  

Kumar was the co-owner of brick kilns in villages Madooke and  

Ajitwal  with  Rajinder  Singh,  respondent  herein.  About  one  year  

prior to the occurrence, a settlement had been arrived at between  

the  parties  aforesaid  and the brick  kiln  in  village Madooke had  

fallen to the share of Madan Lal and the one in Ajitwal to the share  

of  Rajinder  Singh.  As  per  the  settlement,  a  truck  bearing  

registration No. PJB 2155 had also come to the share of Rajinder  

Singh who was to pay a sum of Rs. 1,68,000/- to Madan Lal in lieu

thereof. On 30th November, 1995, Madan Lal and his son Harinder  

Kumar, the deceased along with P.W. 3 -  Shamsher Singh and  

P.W. 4 – Anil Kumar had visited the brick kiln at Madooke to make  

payment  to the labour and as they reached that place at  about  

7:30a.m.,  they  observed  that  bricks  were  being  loaded  onto  a  

tractor  trolley  by Rajinder  Singh,  and Kuldip  Singh (armed with  

shotguns)  assisted  by  four  or  five  persons.  As  soon  as  the  

complainant  party  intervened  Rachhpal  Singh  who  too  was  

present, raised a lalkara calling on Rajinder Singh to fire on the  

complainant party. Rajinder Singh thereupon fired a shot which hit  

Harinder  Kumar  near  his  left  eye.  Rachhpal  Singh  and  Kuldip  

Singh thereafter fired shots towards the complainant party but on  

an alarm raised by the latter, the accused ran away firing shots in  

the air. The tractor trolley with the bricks loaded thereon was also  

driven away.  Madan Lal,  accompanied by Shamsher Singh and  

Anil Kumar, attempted to move Harinder Kumar to the hospital at  

Moga  in  a  car  but  he  died  along  the  way.  A  First  Information  

Report  was  thereafter  lodged  by  Madan  Lal  at  Police  Station,  

Mehna. The body of the deceased was also subjected to a post-

mortem examination and P.W. 1 - Dr. Iqbal Singh opined that the  

injury  appeared  to  have  been  caused  with  a  shot  from a  rifle,  

though the possibility that it had been caused with a shot from a 12  

bore gun, using single projectile cartridge, could not be ruled out.  

P.W. 9 - ASI Devinder Singh of P.S. Mehna also visited the place  

of incident and picked up two spent cartridges of a .315 bore rifle,  

four  spent  cartridge  cases  of  a  12  bore  shot  gun  and  nine  

catridges of 12 bore which were taken into possession and sent for  

examination to the Forensic Science Laboratory, Chandigarh. In  

the meanwhile, Rajinder Singh and Mohinder Singh, who too had

also received injuries in the incident, got themselves examined at  

the Civil Hospital, Jagraon, and on receiving this information P.W.  

9  –  ASI  Devinder  Singh  obtained  their  medical  reports  from  

Jagraon Police Station and also recorded their statements. A rifle  

of .315 bore belonging to P.W. 4 - Anil Kumar and a 12 bore gun  

belonging to P.W. 2 -  Madan Lal  allegedly used in causing the  

injuries to Rajinder Singh and Mohinder Singh were also taken into  

possession  by the  ASI.  On the  completion  of  the  investigation,  

Rajinder  Singh  was  charged  for  an  offence  punishable  under  

Section  302  whereas  the  other  accused  were  charged  under  

Section 302/34 of the IPC read with Section 120B of the IPC and  

all the three were also charged under Section 27 of the Arms Act.  

The prosecution in support of its case relied on the evidence of  

P.W. 1 - Dr. Iqbal Singh, P.W. 2 – Madan Lal, P.W. 3 – Shamsher  

Singh and P.W. 4 – Anil Kumar, the last three named being eye  

witnesses, P.W. 9 – ASI Devinder Singh who had investigated the  

case for a day or so and P.W. 12 Sub Inspector Mal Singh who  

had  taken  over  the  investigation  from  him  was  the  main  

Investigating Officer.  The prosecution case was then put  to  the  

accused and their statements were recorded under Section 313 of  

the Code of Criminal Procedure. They pleaded false implication. In  

their defence, the accused examined eight witnesses in an attempt  

to  show that  they were in  fact  the  victims  at  the  hands  of  the  

deceased and his  father  Madan Lal  and had suffered gun shot  

injuries at their hands.  

The Sessions Judge, Faridkot in an elaborate judgment held  

that  the  participation  of  Kuldip  Singh  and  Rachhpal  Singh  was  

doubtful as they had not caused any injury to the deceased and

that the three eye witnesses were also discordant as to their role in  

the  incident.  On  a  philosophical  note,  the  Sessions  Judge  

concluded that:

“The settled law is  that  it  is  safe to  acquit  10 accused  

persons  rather  than  to  convict  one  innocent.  Weighing  the  

above dictum in the scale of justice, I  am of the considered  

opinion  that  when  there  is  a  doubt  with  regard  to  the  

participation  of  accused  Kuldip  Singh  in  the  present  

occurrence, then it is safe to give him the benefit of doubt and  

acquit him. Thus by giving him the benefit of doubt, accused  

Kuldip Singh is acquitted of the charges framed against him.”

The Sessions Judge, accordingly, holding Rajinder Singh guilty  

of murder convicted and sentenced him under Section 302 of the  

IPC and under Section 27 of the Arms Act as already indicated  

above, but acquitted Kuldip Singh and Rachhpal Singh.  

The matter was thereafter taken to the High Court by way of  

two appeals; one by the State of Punjab challenging the acquittal  

of  Kuldip  Singh  and  Rachhpal  Singh  and  the  other  by  the  

convicted accused Rajinder Singh. The High Court by its judgment  

dated  07.01.2002  dismissed  the  appeal  filed  by  the  State  and  

allowed  the  appeal  filed  by  Rajinder  Singh  primarily  on  two  

grounds:-

(i)  that  as  per  the  eye  witnesses  –  Madan  Lal  and  

Shamsher Singh in particular, the weapon used in causing the  

fatal  injury  was  a  shot  gun  but  the  injury  found  on  the  

deceased was by a shot from a rifle; and (ii) that the injuries on  

the  person  of  Rajinder  Singh  and  Mohinder  Singh  had  not  

been explained which cast a doubt on the entire prosecution

story. A Special Leave Petition was thereafter filed in this Court  

against  the  judgment  of  the  High  Court.  This  Petition  was  

dismissed qua Kuldip Singh and Rachhpal Singh but leave has  

been  granted  with  respect  to  Rajinder  Singh,  the  present  

respondent, vide order dated 20th November, 2006.

It is under these circumstances that the matter has come up  

before us today for final disposal.

Mr. H.M. Singh, the learned counsel for the State has argued  

that there was no reason whatsoever to disbelieve the eyewitness  

accounts given by Madan Lal, Shamsher Singh and Anil Kumar;  

the first and the third named being close relatives of the deceased,  

and in that eventuality any flaw or shortcoming with regard to the  

medical  evidence  ought  to  have  been  ignored.  He  has  also  

submitted that as per the statement of P.W. 1 – Dr. Iqbal Singh  

who  had  conducted  the  post  mortem examination  on  the  dead  

body, the injury on the person of the deceased could have been  

caused by a shot gun using a single projectile cartridge and the  

finding of the High Court was also wrong on this aspect as well. He  

has finally submitted that the observations of the High Court with  

respect to the non-explanation of the injuries on the accused was  

again based on a mis-appreciation of the evidence as the injuries  

could  not  have  been  caused  to  the  injured  in  the  manner  

suggested by the defence.

Mr.  Sushil  Kumar,  the  learned  senior  counsel  for  the  

respondent-accused Rajinder Singh has, however, supported the  

judgment of the High Court.

As would be evident, the fate of appeal would primarily rest on  

the evidence of the three eye witnesses vis-á-vis the evidence of

P.W. 1 - Dr. Iqbal Singh. We have gone through the judgment of  

the Sessions Judge and find that he has, in several places, noticed  

the argument on behalf of the accused that the doctor's evidence  

did not support the use of a shot gun and that the gun shot wound  

was perfectly in consonance with the use of a rifle. Faced with this  

situation, the Sessions Judge had no option but to hold that Madan  

Lal  who  was  an  old  man,  had  seen  the  weapon  from  some  

distance and it was possible that he had been unable to distinguish  

between a rifle and a shot gun and in the light of the fact that he  

had  every  reason  to  be  present  on  the  spot,  the  eye  witness  

account was to be preferred over the doctor's evidence. We are of  

the opinion that this is perhaps over simplifying and stretching the  

matter  too  far  in  favour  of  the  prosecution  as  Madan  Lal  had  

identified  the  murder  weapon  as  a  'pakki'  weapon  which  in  

Punjab's  rural  dialect  always  means  a  'rifle'.  Moreover,  the  

possibility of a mistake is difficult to swallow for the very significant  

reason that Madan Lal and his son Anil Kumar – P.W. 4 were the  

owners of a shot gun and a rifle respectively.  

The Sessions Judge was also influenced by the fact that the  

four spent catridge cases that had been recovered from the place  

of incident by P.W. 9 – ASI Devinder Singh on 30th November,  

1999 and sent to the Forensic Science Laboratory were found to  

have been fired from the licensed shot gun belonging to Rajinder  

Singh. We find this observation to be contrary to the record as it is  

clear from the report of the Forensic Science Laboratory (Exh. PV)  

that it had observed that no conclusive opinion could be given as  

to the use of Rajinder Singh's shot gun on account of insufficient  

identifying characteristics on the cartridges.

We have also gone through the medical evidence of P.W. 1 -  

Dr. Iqbal Singh. He found the following injury on the dead body:-

“A lacerated punctured wound 4cms X 2.5 cms. margines  

inverted and colour of abrasion was present and was placed  

on the left  side of  the face on the lower lid  and face.  Also  

incorporating. the left eye bar below the upper eyelid. Grease  

colour  present  over  the  abrasion  colour.  the  underlying  

structures  that  is  left  eye  ball  was  macerated  into  

unrecognisable mass. On probing and dissecting the track of  

the  wound  was  backward  and  to  the  right.  On  its  way  it  

fractured  the  underlying  bone  and  lacerated  meninges  and  

brain matter till it communicated with the lacerated punctured  

wound with everted and irregular margines and of the size of  

4cms. X 3cms.  placed on the right  lateral  side of  head just  

above and anterior to right tragus. The upper part of pins was  

dismantled.  Meninges  and  brain  matter  were  driven  out  

through the exit wound. Clotted blood was present. All other  

organs were normal.”

As per the ocular account, the shot gun had been fired from a  

distance of 10 or 12 karm i.e., 50 or 60 feet or about 20 yards. In  

this situation, and if the prosecution story was to be accepted the  

pellets would have entered the body making individual pellet holes  

and not en-masse as appears in this case. The injury being of the  

head along with single exit wound is compatible with the use of a  

rifle  and  not  a  shot  gun.  In  Modi's  Medical  Jurisprudence  &  

Toxicology 23rd Edition, it has been observed:-

“At a distance of one to three feet, small shots make a  

single  aperture  with  irregular  and  lacerated  edges

corresponding in size to the bore of the muzzle of the gun, as  

the shot enter as one mass, but are scattered after entering  

the wound and cause great  damage to  the internal  tissues.  

The skin surrounding the wounds is blackened, scorched and  

tattooed, with unburnt grains of powder. On the other hand, at  

a distance of  six feet,  the central  aperture is surrounded by  

separate openings in an area of about two inches in diameter  

made by a few pellets of the shot,  which spread out before  

reaching the mark. The skin surrounding the aperture may not  

be blackened or scorched, but is tattooed to some extent. At a  

distance of 12 feet, the charge of the shot spreads widely and  

enters  the  body  as  individual  pellets  producing  separate  

openings  in  an  area  of  five  to  eight  inches  in  diameter  

depending  on  the  choke,  but  without  causing  blackening,  

scorching or tattooing of the surrounding skin. At a distance of  

about 50 feet a pattern measuring about 14 inches from a fully  

choked  barrel  and  28  inches  from  an  unchoked  barrel  are  

produced  and  at  about  100  feet  the  spread  pattern  on  the  

target unchoked one. A rule of thumb in long usage is that the  

diameter of the spread of the shot pattern on the skin in inches  

is roughly equal to the distance from the muzzle in yards.”  

It  is true that in cross examination P.W. 1 - Dr.  Iqbal Singh  

stated that the injury was possible from a rifle as well. However, in  

view of the categoric statement in his examination in chief that the  

injury was possible with a single projectile 12 bore cartridge the  

use of a shot gun becomes suspect, as single projectile cartridges  

are not available in India and even, otherwise can be used with a  

measure of accuracy only in specialised shot guns. We also find  

from  the  statements  of  P.W.  9  -  ASI  Devinder  Singh  the  first

investigating officer, that on preliminary investigation he had found  

that as per the statement of Mohinder Singh, one of the injured  

though not an accused, a .315 bore rifle belonging to Anil Kumar  

and a 12 bore gun belonging to Madan Lal had been used in the  

occurence and had caused the injuries including the fatal one on  

Harinder Kumar (although as pointed out by Mr. H.M. Singh), this  

fact had been denied by Inspector Malinder Singh, the subsequent  

Investigating Officer.  Be that  as it  may,  in the fact  that  the eye  

witness account does not support the medical evidence and vice  

versa, we are of the opinion that some serious doubt is cast on the  

prosecution story.

It  would also be seen that  the second ground taken by the  

High Court in the impugned judgment is the non-explanation of the  

injuries on Rajinder Singh and Mohinder Singh. The injuries found  

are given below:-

“Mohinder Singh

1. Obliquely and partially amputated terminal phalanx of  

right little finger of right hand. The distal portion of the terminal  

phalanx of right little finger had been cut through and through.  

There  was  raw surface  2.5cmx.  X  1.5cm present.  Bleeding  

from the wound was present. cut and of the terminal phalanx of  

right little finger was seen and felt in the wound.

2. Obliquely and partially amputated terminal pahalnx of  

right ring finger of right hand the distal portion of the terminal  

phalanx of right ring finger had been cut through and through.  

There  was  surface  2.5  cm  X  1.75  cms.  (1.75)  present.  

Bleeding from the wound was present. Cut end of the terminal  

phalanx of right ring finger was seen and felt  in the wound.

General condition of the injured was satisfactory. Pulse was 78  

per minute. BP 120 X 80 mm of HG.

3. Respiratory rate was 18 per minute. Pubils were equal  

and reacting. No vomiting was present.

RAJINDER SINGH

1. Irregular/lacerated wound 15 cms X 7 cms muscle deep  

on back of right lower leg in calf region about 9 cms. from the  

popliteal fossa and going downwards and medically from the  

upper outer end. There was tattooing of skin 1.75 cms X 1.5  

cms., on upper and outer part of upper end of a wound and on  

sides of upper end of the wound. The heirs were partially burnt  

in the ara. The upper and outer end of the wound for 3 cms.  

was bruised and blackened and the margins of the wound in  

this area were inverted.

The margins of the wound turned inwards at this point that  

is 3 cms from upper and outer end. The muscle for about 1.5  

cms depth was lacerated. Subcutaneous tissues and muscles  

were blackened in upper and outer part of the wound. Bleeding  

was present from the wound. There were three holes in the  

right side leg of the pyjama and the pyjama was also blood  

stained. There was blackening around two smaller holes in the  

pyjama. X-ray of the right lower leg were impaired and painful.  

Injury was kept under observation and weapon was also kept  

under  observation.  The  probable  duration  of  the  injury  was  

within 6 hours.”

A bare look at these injuries would reveal that they could not  

have been self inflicted and it  is not even the suggestion of the  

prosecution that it was so. The High Court has, accordingly, held

that the prosecution story was clearly suspicious and fell within the  

scope of the principles laid down for acquittal in the case of non-

explanation of the injuries on the person of an accused in Lakshmi  

Singh  v.  State  of  Bihar  (1976)  4  SCC  394.  The  following  

observations from the aforesaid judgment are relevant:

“In murder case, the non-explanation of the injuries sustained  

by the accused at the time of the occurrence or in the course  

of altercation is a very important circumstance from which the  

Court can draw the following inferences:-

(1) that the prosecution has suppressed the genesis and  

the origin of the occurrence and has thus not presented the  

true version.

(2) that the witnesses, who have denied the presence of  

the injuries on the person of the accused are lying on a most  

material point and therefore their evidence is unreliable.

(3) that in case there is a defence version which explains  

the  injuries  on  the  person  of  the  accused  it  is  rendered  

proabable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the  

injuries on the person of the accused assumes much greater  

importance  where  the  evidence  consists  of  interested  or  

inimical witnesses or where the defence gives a version which  

competes in probability with that of the prosecution one.”  

There is yet another circumstance on this aspect which creates  

suspicion.  As  per  the  defence  version,  the  injuries  had  been  

caused by Madan Lal and his son Anil Kumar to the members of  

the accused party and a reference to this fact has been made by

P.W. 9 – ASI Devinder Singh in his evidence. It also appears that  

on re- investigation two senior police officers D.W. 1 – Manminder  

Singh, DSP and D.W. 5 - SP Narinder Pal Singh too had come to  

the conclusion that the defence put up by the accused was in fact  

the correct one and that they had been the victims of an attack,  

rather than the other way around.

We also observe that a shot gun and a rifle (both licensed)  

belonging  to  Madan  Lal  and  Anil  Kumar  had  been  taken  into  

possession and though two empty  catridges of  a  .315 rifle  had  

been recovered about 120 feet away from the spot on the 30th  

November, 1999 they had not been sent to the forensic laboratory  

for  comparison with Anil  Kumar's  weapon.  Mr.  Sushil  Kumar is,  

therefore, justified in submitting that the investigation in this matter  

was tainted and the defence version had not even been taken into  

consideration by the investigating officer,  more particularly when  

two senior officers had given a report favourable to the accused.  

We have also examined the scope of inference by this Court  

with regard to an appeal against acquittal in State of U.P. v. Banne  

(2009) 4 SCC 271 wherein  after  referring to a large number of  

cases earlier decided, it was concluded as follows:

“Following  are  some  of  the  circumstances  in  which  

perhaps  this  Court  would  be  justified  in  interfering  with  the  

judgment  of  the  High  Court,  but  these  are  illustrative  not  

exhaustive:

(i) The High Court's decision is based on totally erroneous  

view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence  

and documents on record;

(iii) The entire approach of the High Court in dealing with  

the evidence was patently illegal leading to grave miscarriage  

of justice;

(iv)  The High Court's  judgment is manifestly  unjust and  

unreasonable based on erroneous law and facts on the record  

of the case;

(v)  This  Court  must  always  give  proper  weight  and  

consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering  

with a case when both the Sessions Court and the High Court  

have recorded an order of acquittal. “

Applying the parameters aforesaid, we are of the opinion that the  

judgment of the High Court calls for no interference. The appeal is  

dismissed.