http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: GIAN SINGHSAUDAGAR SINGH & ORS.

       Vs.

RESPONDENT: GULAB SINGH & ORS.STATE OF HARYANA

DATE OF JUDGMENT:       08/07/1997

BENCH: M. K. MUKHERJEE, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT: Saudagar Singh & Ors. V. State of Haryana                             WITH               CRIMINAL APPEAL NO. 237 OF 1988                       J U D G M E N T Mukherjee. J.      These two appeals have been heard together as they stem from   a common  judgment rendered  by the Additional Judge. Designated Court.  Karnal (at  Ambala) in Sessions Trial No. 52 of  1987. Fact  leading to these appeals and relevant for their disposal are as under: 2(a) On December  27, 1986  at or  about 3.00  A.M.  Naurang Singh a  resident of  Village Manakpur lodged an F.I.R. with Om Prakash  (PW-19) the then Station House Officer of Ambala (Sadar) Police  Station, at  Civil Hospital, Ambala, wherein he state inter  alia, that to keep a vigil over the electric lines of  their village, Gurdev Singh (P.W. 10) the Sarpanch used to  deploy some  villagers every night. In the previous evening . Gurdev had sent Faquira (P.W. 15) Chowkidar of the village to  inform Harbhajan  Singh and Gurnam Singh, tow of the villagers that they would have to perform the above duty in that  night Accordingly,  Faquira went  to the  house  of harbhajan Singh  at or  about 8.30 P.M. and having found his nephew Nachhatar  Singh present  there apprised  him of  the direction of  Gurdev Singh. Nachhatar Singh, however refused to comply  with such  direction. Over  this issue  a quarrel ensured between  Faquira and  Nachhatar Singh  in course  of which the  informant (Naurang  Singh) and  this son  Nirmali Singh (P.W.  14) came  out of  their house.  Nachhatar Singh then left  the place saying that he would teach Gurdev Singh a lesson  for exploiting  his  authority  as  the  Sarpanch. Sometimes thereafter,  Gulab Singh,  Kulwant Singh,  Jaswant Singh @  Bant Singh  and Saudagar  Singh, all  sons of  Amar Singh, Shamsher  Singh and Baldev Singh sons of Sadhu Singh, Charan Singh son of Raunaq Singh and Nachhatar Singh, son of Gurnam Singh,  came there fully armed. While Gulab Singh and Shamsher Singh  had guns  with them.  Charan Singh  and Bant Singh had  Gandasas and  the other  four  lathis.  When  the informant along  with his  son Nirmail Singh and Faquira was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

about to leave the place to call Gurdev Singh Saudagar Singh gave a  lathi blow  on his  (informant’s) head. Similar blow was also  given by  Nachhatar Singh.  On being so assaulted, informant raised an alarm and hearing the same. Swaran Singh (the deceased)  and his  brother Gian  Singh, sons of Gurdev Singh reached there. Seeing them Shamsher Singh fired a shot which, however did not hit anybody. Then Gulab Singh fired a shot which  hit Swaran  Singh and  felled him  down. All the miscreants then  ran away with their respective weapons. The informant and  Swaran Singh  were then taken to the hospital where the  State House Officer came on receipt of a ruqa fro the doctor. (b)  On the  above statements  of Naurang  Singh a  case was registered against  the above eight accused persons and Sub- Inspector  Om   Prakash  took  up  investigation.  He  first arranged to  get  the  dying  declaration  of  Swaran  Singh recorded by  Shri R.K. Garg (P.W. 2) an Executive Magistrate (Exht. P/C-4)  and then went to the site of the incident. He seized some  blood stained  earth and two pieces of wad from near the  house of  Naurang Singh  and also  prepared a site plan. In  course of  investigation, he  arrested the accused persons and seized the licenced DBBL gun of accused Shamsher Singh and two cartridge. (c)  On January  11, 1987, Sub-Inspector Om Prakash received a report  that Swaran  Singh has succumbed to this injuries: and on receipt of the same he went to the hospital and after holding  inquest   on  his   body  sent  it  for  postmortem examination. Dr.  Vinay Goal  (P.W. 1) who held the autopsy, recovered some  pellets from  the dead  body of Swaran Singh and sent the same to the Forensic Science Laboratory (F.S.L) for examination.  On receipt  of the  report of  F.S.L.  and after completion  of investigation  police submitted charge- sheet against  the eight  accused persons and in due course, their case was committed to the court of sessions. 3.   The accused  persons pleaded  no guilty  to the charges levelled against  them and  contended  that  they  had  been implicated falsely. 4.   In support of its case, the prosecution examined twenty witnesses  but   the  defence   did  not   examine  any.  On consideration of  the evidence adduced, the Designated Court convicted all  the eight  accused persons  under Section 148 IPC and  323/149 IPC;  accused Gulab Singh under Section 302 IPC and  Section 27  of the  Arms Act read with Section 6 of the Terrorist  and Disruptive  Activities (Prevention)  Act, 1985 (TADA);  accused Shamsher  Singh under  Section 307 IPC and Section  27 of  the Arms  Act read with Section 6 of the TADA; seven  accused  (except  Gulab  Singh)  under  Section 302/149 IPC, and seven accused (except Shamsher Singh) under Section 307/149 IPC. 5.   Assailing their  convictions  the  eight  accused  have filed one  of these  two appeals (Criminal Appeal No. 231 of 1988) while  the other  appeal has  been preferred  by  Gian Singh (P.W.  16) the  brother of  deceased Swaran  Singh for enhancing the sentences imposed upon them. 6.   In the  context of the case made out by the prosecution the first question that falls for our consideration in these appeals is  whether it  has been  able to conclusively prove that Swaran  Singh met  with his  death  owing  to  gun-shot injuries and  Naurang  Singh  sustained  injuries  owing  to assault by lathis. To answer this question we may profitably look to  the medical  evidence on  record. Dr.  N.P.  Jindal (P.W. 8)  Medical Officer  of Civil  Hospital, Ambala  City, testified that  on  December  26,  1986  at  11.50  P.M.  he examined Swaran  Singh and found multiple pellet injuries in and around  his abdomen  and those  injuries were  fresh and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

bleeding.  P.W.  8  further  testified  that  thereafter  he examined Naurang  Singh and found one lacerated wound on his left parietal  region and one abrasion on the right forearm. According to  the doctor the injuries found on the person of Naurang Singh  could have  been caused  by lathi.  In cross- examination, P.W.  8 stated that Swaran Singh remained under his treatment  upto 7.40  A.M. on  December 27,  1986  after which he was shifted to surgical ward. 7.   The testimonies  of Dr.  Subhas Goel  (P.W. 3)  and Dr. P.D. Kakkar  (PW 7)  reveal that Swaran Singh was X-rayed on the same  day and the skiagrams showed multiple radio opaque shadows of metallic density in the abdominal area. 8.   From the  evidence of  Dr. S.P.  Shenoy (P.W. 7) we get that on  January 2,  1987 Swaran  Singh was operated upon by him for  gun shot  injuries on  his abdomen  but despite all efforts he  succumbed to those injuries on January 11, 1987. He opined  that the  death was  the direct result of the gun shot injuries  and in  giving the  above opinion refuted the defence suggestion that the immediate cause of the death was infections developed during surgery. 9.   The only  other witness  examined by the prosecution in this regard  was Dr.  Vinay Goel  (P.W. 1) who conducted the autopsy on  the dead  body of  Swaran Singh  on January  12, 1987. On perusal of his evidence, we find that his objective findings regarding  injuries and his opinion as to the cause of the  death are  in conformity  with those  of  the  other doctors  whose  evidence  we  have  discussed  earlier.  The evidence of  P.W. 1 reveals that some pellets were recovered from the  dead body  which were  put in a bottle duly sealed and sent for F.S.L examination. 10.  Since from  the evidence  of the doctor, it is manifest that Swaran Singh met with his death due to gunshot injuries sustained on  December 26,  1986 and  that on  the same day. Naurang Singh  also sustained  some injuries  which could be caused by lathi, we proceed to consider whether they are the outcome of the incident as narrated by the prosecution. 11.  Faquira (P.W.  15) and Gian Singh (P.W. 16) are the two witness who  were examined  by the  prosecution to  give  an ocular version  of the  incident. Besides,  it pressed  into service the  dying declaration of Swaran Singh (Exhibit P/C- 4), as  recorded  by  Shri  R.K.  Garg  (P.W.  2)  Executive Magistrate Ambala.  Before discussing  the evidence  of  the above witnesses,  it need  be mentioned  that Naurang Singh, who claimed  to have  sustained injuries in the incident and lodged the  FIR with the police at the hospital where he was admitted for  treatment and  as such  was the most important witness for  the prosecution  was not  examined. The learned counsel for  the accused  appellants, therefore  asked us to draw an  adverse presumption  against the  prosecution under Section 114,  illustration  (g)  of  the  Evidence  Act.  On perusal of  the record, we are however, unable to accept the above submission  as we find that the explanation offered by the prosecution for non-examination of Naurang Singh that he was gained  over by  the accused  is borne  out by record in that his  son Nirmail  Singh (P.W.  14) who  also claimed to have seen  the incident  when examined under Section 161 Cr. P.C. turned  hostile. Beside  on being  cross-examination by the  Public   Prosecutor,  he  (P.W.  14)  stated  that  the complainant party  was suspecting that his father has joined hands with the accused. 12.  Coming now to the evidence of the two eye witnesses, we first notice  that it  was not disputed that at the material time Gurdev  Singh (P.W.  10) was  the Sarpanch  and Faquira (P.W. 15)  was the  Chowkidar of  the village and that since prior to  the incident  a vigil  was  being  kept  over  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

village electric  lines by  the villagers  to avert theft as per  directions   given  to   Gurdev  Singh  by  the  Deputy Commissioner Judged  in the  context of the above undisputed facts, the  claim of P.W. 15 as corroborated by Gurdev Singh (P.W. 10) that on the fateful evening under the direction of the latter  he went  to intimate  Harbhajan Singh and Gurnam Singh that  they were  to perform  the above  duty  must  be accepted. Equally  acceptable is his further claim that when he met  Nachhatar Singh  son of  Gurnam Singh  he refused to comply  with  the  above  directions  of  Gurdev  Singh  and challenged his  authority for  the record indicates, earlier there was as dispute over the office of the Sarpanch between Gurdev Singh and accused Shamsher Singh and Baldev Singh and since ultimately  the Deputy  Commissioner appointed  Gurdev Singh in  the above  post the  accused party has a grievance against him.  Considered in  the light  of these  facts  and circumstances and in absence of any satisfactory material to indicate as  to why P.W. 15 would depose falsely against the accused  persons,  we  find  no  reason  to  disbelieve  his testimony regarding  the incident  more so  when the defence failed to  elicit anything in cross-examination to discredit him. 13.  The evidence  of P.W.  15 get  ample corroboration from that of  Gian Singh  (P.W. 16)  brother of  deceased  Swaran Singh.   This   witness   was   cross-examined   at   length particularly to  prove that  there was  no source  of  light which could  enable him and P.W. 15 to see the incident much less identify the miscreants but such attempt failed. On the contrary, we  find that  his evidence  that there was street light near  the site  of incident is borne out by Om Prakash (P.W. 19)  the Investigating  Officer, who stated that there was an  electric pole  near the  spot  with  a  bulb  fitted therein. In support of his testimony he produced photographs (PE/7 to  PE/12) taken  at his  instance at  the time of his visit to the spot. 14.  Assailing the  evidence of  Faquira (P.W.  15)  it  was submitted on  behalf of  the accused-appellants  that having regard to  the testimony  of Gurdev  Singh that he (P.W. 15) has come  to his  house to inform him about the conversation which took  place between  him and  Nachhatar Singh he could not have  been present  at the  place of  occurrence at  the material time  for admittedly Gurdev Singh reached the place only after  the firing was over. We do not find any merit in this contention  for there  is nothing on record to indicate that Faquira  had continued  to stay  in the house of Gurdev Singh after  apprising him of the talk he had with Nachhatar Singh and  that he  went to  the place  of  occurrence  with Gurdev Singh.  The other  related contention was that Gurdev Singh did not name Faquira as one of the persons whom he met and heard  of the  incident when  he reached  the spot. This contention is  also without  any substance  for Gurdev Singh stated that  on reaching  the spot  he found  Naurang Singh, Nirmail Singh,  Gain Singh,  my son  etc. standing there and that the  persons present their narrated the incident to him and mentioned  the names  of the assailants. From the manner in which  the statement of P.W. 10 was recorded by the Trial Judge the presence of Faquira therefore, cannot be excluded. So far  as the  testimony  of  Gain  Singh    (P.W.  16)  is concerned the  criticism of  the learned counsel was that it materially contradicted his statement recorded under Section 161 Cr.  P.C. On  perusal of  his evidence  we find that the contradictions relate  to minor  aspects and  details and do not in any way impair his testimony. 15.  Notwithstanding the  evidence of  the two eye witnesses which fully  supports the  case of  the prosecution  we feel

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

that some  of the  accused-appellants should  be  given  the benefit of  doubt in  view of  the dying declaration made by Swaran Singh.  Thought  therein  Swaran  Singh  specifically mentioned that they were surrounded by about ten persons and that Shamsher  Singh and Gulab Singh fired shots towards him and his brother Gian Singh (P.W. 16) he did not name five of the other six accused-appellant and stated that he could not identify them  in the  night as their faces were covered. He however mentioned the name of accused Balbir Singh as one of the persons  present there  but did  not ascribe any role to him.  When   the  evidence  of  the  two  eye  witnesses  is considered along  with the  dying declaration the conclusion is  inescapable  that  along  with  other  Gulab  Singh  and Shamsher Singh  had formed an unlawful assembly both of them fired from their respective guns and the shot fired by Gulab Singh hit  Swaran Singh  which ultimately  resulted  in  his death. Since  however Swaran Singh has not named five of the appellant before  us namely  Kulwant Singh,  Jaswant  Singh, Saudagar Singh,  Charan Singh and Nachhatar Singh, we by way of abundant  caution exonerate  them from  the  charges  for which they  have been  convicted. Accused  Baldev Singh also gets the benefit of doubt in view of the fact that the dying declaration speaks only of his presence at the spot. For the foregoing discussion  the conviction of both Gulab Singh and Shamsher Singh  under Section  148  IPC  is  upheld.  Having regard to  the fact that both of them fired shots from their respective guns  it is obvious that the common object of the unlawful assembly  of which  they were  members was  to kill Swaran Singh  and his brother Gian Singh thought the attempt of Shamsher  Singh failed.  We  therefore  also  uphold  the conviction of  Gulab Singh under Section 302 and 307/149 IPC and of  Shamsher Singh  under Section 302/149 and 307 IPC as also their convictions under Section 27 of the Arms Act read with Section  6 of the TADA. However since Naurang Singh was not examined  by the  prosecution we do not feel inclined to sustain the  conviction of  Gulab Singh  and Shamsher  Singh under Section 323/149 IPC for causing hurt to him. 16.  In the  result, we  allow the  appeal preferred  by the eight accused-appellants  (Criminal Appeal  No. 231 of 1988) in part and set aside the convictions and sentences recorded against Kulwant Singh, Jaswant Singh, Saudagar Singh, Charan Singh, Nachhatar  Singh and  Baldev Singh.  As  regard,  the other  two   accused-appellants,  namely   Gulab  Singh  and Shamsher  Singh  we  uphold  all  the  convictions  recorded against them  except the one under Section 323/149 IPC. They will now  surrender to  their bail  bonds to  serve out  the sentences imposed  upon them  for the convictions now upheld by us. 17.  So far  as the  other appeal  preferred by  Gian  Singh (Criminal Appeal  No. 237 of 1988) is concerned we find that no ground  has been  made out for enhancing the sentences of imprisonment for  life imposed  upon the  above two  accused person namely, Shamsher Singh and Gulab Singh to death. This appeal is accordingly dismissed.