CRL.A. No 1167 of 2007                                                                                                                                                               REPORTABLE 1

PART-II           IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1167 OF 2007

HARBANS SINGH & ANR. ..... APPELLANT

VERSUS

STATE OF UTTARAKHAND ..... RESPONDENT

O R D E R

1. This appeal by way of special leave arises out  

of the following facts:-

At about 7:00p.m. on the 30th  of October, 2001,  

Gurbachan Singh – P.W. 1, was riding pillion on the  

motor  cycle  being  driven  by  his  son  Gurjeet  Singh-

deceased.  As the two reached near the Kichha railway  

station  about  half  a  kilo  metre  away  from  Police  

Station, Kichha, the four accused Jagdeep Singh and  

Manjeet  Singh  armed  with  country-made  weapons  and  

Harbans  Singh  and  Jaswant   Singh,  the  present  

appellants, chased them in their Esteem Car bearing No.  

HR 06-G 2165 and after overtaking the motor cycle came  

in front thereof with the result that Gurjeet Singh had

CRL.A. No 1167 of 2007                                                                                                                                                               REPORTABLE 2

to stop on the road side.  The accused thereupon  fired  

gun shots at Gurjeet Singh killing him on the spot.  

The  incident  was  witnessed  by  Bhagat  Singh,  Deedar  

Singh, Kuldeep Singh and Ashok Kumar and several other  

persons.   Gurbachan  Singh  rushed  to  Police  Station  

Kichha and recorded the First Information Report at  

about 7:30p.m. in which bare details with regard to the  

incident were given by him.  P.W. 7 – Harish Mehra, the  

SHO, of P.S. Kichha reached the place of incident and  

made the necessary enquiries and sent the body for the  

post  mortem  examination.   On  the  completion  of  the  

investigation, a charge under Section 302 of the Indian  

Penal  Code  simplicitor  was  framed  against  the  four  

accused whereas a separate charge under Section 25 of  

the  Arms  Act  was  framed  against  Jagdeep  Singh  and  

Manjeet Singh, the two accused who had been armed with  

a fire arm each had fired the fatal shots.  As the  

accused denied charges levelled against them they were  

brought to trial.   

2. The prosecution in support of its case examined  

Gurbachan Singh – P.W. 1, the first informant, as one  

of the eye witnesses and his nephew Deedar Singh – P.W.  

2 as the second eye witness; Dr. S.K. Mishra – P.W. 4,  

the  doctor,  who  had  performed  the  post  mortem

CRL.A. No 1167 of 2007                                                                                                                                                               REPORTABLE 3

examination on the body and P.W. 7 the Investigating  

Officer, Harish Mehra.  The prosecution case was then  

put to the accused and the statement under Section 313  

Cr.P.C.  were  duly  recorded.   They  denied  all  

allegations levelled against them.  The trial court  

relying on the aforesaid ocular evidence as supported  

by the medical evidence of Dr. S.K. Mishra, - P.W. 4,  

held all the four accused Jagdeep Singh and Manjeet  

Singh guilty of murder simplicitor under Section 302  

whereas present appellants Harbans Singh and Jaswant  

Singh were held guilty under Section 302/149 IPC and  

sentenced accordingly. An appeal was thereafter taken  

by all the four accused to the High Court.  The  High  

Court dismissed the appeal by its judgment dated 15th  

June, 2007.   

3. We are told that special leave petitions were  

subsequently filed in this Court.  The Special Leave  

Petition filed by Jagdeep Singh and Manjeet Singh was  

dismissed by a simple order of dismissal whereas leave  

was  granted  in  the  Special  Leave  Petition  filed  by  

Harbans  Singh  and  Jaswant  Singh,  the  present  

appellants.

4. We  have  heard  the  learned  counsel  for  the

CRL.A. No 1167 of 2007                                                                                                                                                               REPORTABLE 4

parties  and  gone  through  the  record  with  their  

assistance.   

5. Several arguments have been raised by Mr. S.R.  

Bajwa, the learned senior counsel for the appellants.  

He has first pointed out the appellants had been roped  

in under Section 301/149 of the IPC and as no charge  

under Section 149 had been framed against them, their  

conviction  on  that  basis  was  wrong.   He  has  also  

pleaded that the statements of the accused recorded by  

the  trial  court  under  Section  313  of  the  Code  of  

Criminal  Procedure  were  defective  and  the  material  

circumstances  which  would  have  been  relevant  for  

determining their culpability had not been put to them  

invalidated their conviction.  For this argument, Mr.  

Bajwa has placed reliance on several judgments of this  

Court.  He has also further pointed out on facts, that  

the FIR did not contain any details with regard to the  

incident and the improvements made during the course of  

the evidence in Court, could not, therefore, be relied  

upon the more so as it was the admitted position that  

the  relations  between  the  parties  were  strained  on  

account of a dispute pertaining to a petrol pump.  He  

has also emphasised on the general tendency in such  

matters (and where enmity is writ large) to cast the

CRL.A. No 1167 of 2007                                                                                                                                                               REPORTABLE 5

net far and wide as there was absolutely no reason  

whatsoever that the two appellants, being elders in the  

family, would have accompanied the two young co-accused  

to commit a murder for the purpose of sorting out what  

was apparently a dispute relating to property.   

6. Mr.  A.P.  Sahay  the  learned  counsel  for  the  

respondent-State  has,  however,  controverted  the  

arguments  made  by  Mr.  Bajwa  again  on  the  basis  of  

several judgments of this Court and has emphasised that  

a defective charge or statement under Section 313 of  

the Cr.P.C. recorded by the trial could would not per  

se vitiate the trial as an obligation was cast on the  

accused to show that both these factors had led to  

prejudice during the course of the trial.  He has also  

submitted that Section 465 of the Cr.P.C. specifically  

provided that in determining the question of prejudice  

the fact as to whether the objection had been raised at  

the  earliest  possible  stage,  would  be  an  extremely  

relevant factor and as the appellants had for the first  

time raised the question of prejudice in this Court,  

the plea was not open to them.  He has also pointed out  

on facts that the FIR was not an encyclopedia of events  

and that in the background that Gurbachan Singh had  

seen the brutal murder of his young son, if some facts

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had been left out, some latitude was to be given to him  

on account of his unfortunate situation.

7. We  have  heard  the  learned  counsel  for  the  

parties and considered the arguments advanced by them  

and have perused the evidence on record.  We do find  

that  the  charge  framed  against  the  four  accused  

(including the two appellants) as also the statements  

under Section 313 of the Cr.P.C. recorded by the trial  

court with regard to the circumstances that had been  

found against them during the course of the trial have  

not been framed or recorded in the manner required by  

law  but  this  factor  by  itself  would  not  entirely  

determine the matter in the light of the fact that the  

appellants  have  not  taken  an  objection  regarding  

prejudice at the earliest stage and that no prejudice  

has in fact been shown, as they were fully aware of the  

case against them.   

8. We,  however,  feel  that  the  appellants  are  

entitled  to  relief  in  the  facts  of  the  case.   We  

observe that the FIR is rather sketchy and gives no  

details about the specific role of each of the accused.  

When these questions were put to Gurbachan Singh in his  

evidence in Court he stated that he had in fact given

CRL.A. No 1167 of 2007                                                                                                                                                               REPORTABLE 7

all details  to the police officer but he had neglected  

to record them.  Mr. Sahay's argument, therefore, that  

Gurbachan Singh was puzzled on account of the incident  

is not confirmed by Gurbachan Singh.  Moreover, we are  

also not unmindful of the fact that where enmity is  

admitted (as in this case) and as some parleys had  

taken  place  that  very  morning  with  regard  to  a  

settlement and the ownership of the petrol pump, the  

possibility  that  the  appellants  had  been  roped  in  

cannot be ignored the more so as all the accused were  

closely related to each other.  We notice that Jagdeep  

Singh  and  Manjeet  Singh,  the  two  accused  whose  

conviction has become final upto this Court are the  

sons of Harbans Singh and Jaswant Singh, appellants  

herein  respectively,  whereas  the  appellants  are  

brothers-in-law  interse.   We  also  find  that  Deedar  

Singh -P.W. 2 the other eye witness also did not give  

any relevant details in his statement under Section 161  

Cr.P.C.  and  he  was  repeatedly  confronted  with  the  

omissions in his deposition in Court.    

9. We,  therefore,  remain  uncertain  about  the  

involvement of the appellants in the incident.  They  

are, accordingly, entitled to the benefit of the doubt.

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10. We,  accordingly,  allow  this  appeal.   The  

appellants shall be set at liberty forthwith if not  

required in any other case.    

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [DEEPAK VERMA]

NEW DELHI NOVEMBER 24, 2009.

CRL.A. No 1167 of 2007                                                                                                                                                               REPORTABLE 9

 PART-I

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1167 OF 2007

HARBANS SINGH & ANR. ..... APPELLANTS

VERSUS

STATE OF UTTARKHAND ..... RESPONDENT

O R D E R

     We have heard the learned counsel for the parties. Vide  our  separate  reasoned  order,  we  have  

allowed the appeal and set aside the conviction of the  

appellants and ordered their acquittal.   

It  is  stated  by  the  learned  counsel  for  the  

appellants that the appellants are in jail. We direct  

that they be set at liberty forthwith if not required  

in  connection  with  any  other  case.    

The reasoned order to follow.   

    ..................J      [HARJIT SINGH BEDI]

    ..................J      [DEEPAK VERMA]

NEW DELHI

CRL.A. No 1167 of 2007                                                                                                                                                               REPORTABLE 10

NOVEMBER 24, 2009.