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PETITIONER: JARNAIL SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT23/11/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) KIRPAL B.N. (J)

CITATION:  1996 AIR  755            1996 SCC  (1) 527  JT 1995 (8)   279        1995 SCALE  (6)563

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T M.K. MUKHERJEE, J.      The appellant  along with  four others,  including  his father,  brother  and  nephew,  was  tried  by  the  learned Additional Sessions  Judge, Amritsar for rioting, committing murders and  attempting to commit murders. The learned Judge convicted the  appellant and  his brother  Sukhwinder  Singh under Section  302 read  with Section 34 IPC (on two counts) and sentenced  each of  them to suffer imprisonment for life and to  pay a  fine of  Rs. 2,000/-  in default,  to  suffer rigorous imprisonment  for one  year, while  acquitting  the other three.  In appeal,  preferred by the two convicts, the High Court  affirmed the  conviction  and  sentence  of  the appellant but  acquitted Sukhwinder Singh. Hence this appeal by the appellant after obtaining special leave.      The prosecution  case in  brief is  that on October 27, 1979 at  or about  9 A.M.  the acquitted  accused Sukhwinder Singh was  preparing a  path to  his behak  (farm house)  by dismantling the  water course  of Sukhdev  Singh (one of the two deceased)  and his  brothers running through their lands while  Gurmej   Singh  (since   acquitted),  father  of  the appellant and  Sukhwinder Singh,  was standing  nearby. This was objected  to by Sukhdev Singh, his brothers Surjit Singh (the other  deceased), Dhanwant  Singh (PW  4)  and  Manohar Singh (PW  6) which  led to  an exchange  of hot  words  and abuses between  the parties.  Thereafter  Gurmej  Singh  and Sukhwinder Singh  left for  their behak and the two deceased and their  brothers for their village Khatra Khurt. On their way to  the village  when the  latter group  had reached the janj ghar  (place for  marriage parties)  the  five  accused along with  one Joginder  Singh (since  absconding) accosted them. Except  Gurmej Singh,  who was unarmed, all had rifles in their  hands. Gurmej  Singh raised  a lalkara saying that they should  be taught  a  lesson  for  stopping  them  from preparing the  path to  their behak whereupon Joginder Singh

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fired from his rifle hitting Surjit Singh on his chest. Then the appellant  fired from his rifle hitting Sukhdev Singh on his back.  Sukhwinder Singh  also fired from his rifle which hit Sukhdev  Singh on  his left  shoulder. On being so fired at, both  of them fell down on the ground. The other accused persons also  fired from  their rifles  aiming  at  Dhanwant Singh and  Manohar Singh  but their  shorts hit the walls of the nearby  house of  Ajit Singh. Thereafter all the accused persons fled away.      The witnesses  then  took  injured  Sukhdev  Singh  and Surjit Singh  to their  house nearby  but by  then they  had succumbed to  their injuries.  Dhanwant Singh  then went  to Majithia police  station  and  lodged  a  First  Information Report. S.I.  Janak Raj  (P.W.12) registered  a case on that report and  left for  village Khatra Khurt. He first went to the house of the deceased and after holding inquest upon the dead bodies  sent them  for post-mortem examination. He then went to  the place  of  occurrence  and  seized  some  blood stained earth  and also  some pellets  found embedded on the walls of  the house  of Ajit  Singh. After  receipt  of  the report of  the post  mortem examination held on the two dead bodies by  Dr. Harish  Chander Vaid (PW 5) and on completion of investigation  S.I. Janak  Raj submitted charge sheet and in due  course the  case  was  committed  to  the  Court  of Session.      The accused  persons pleaded  not guilty to the charges levelled against  them and  contended  that  they  had  been falsely implicated.      To prove its case prosecution examined twelve witnesses of whom  Dhanwant Singh  (PW 4) and Manohar Singh (PW6), the two brothers  of the deceased, figured as eye witnesses; and in their  defence the accused persons examined five witness, including Swaran  Singh (DW  5) who  also  claimed  to  have witnessed the occurrence.      From the  judgments of  the  learned  Courts  below  it appears that  the trial Court found the evidence of PW 4 and PW 6  suspect as  against accused Harpal Singh and Jaswinder Singh on  the ground  that as they were not residents of the village to which the deceased and the other accused belonged it was  unlikely that  they would be present at the material time with  rifles in  their hands, much less, participate in the murders  which arose  out of a dispute between those two families over dismantling of a water course. In dealing with the  case  of  accused  Gurmej  Singh,  the  father  of  the appellant, the  trial Court  observed  that  the  allegation against him  was only  of raising a lalkara and it would not be safe  to convict  him on such accusation alone. The trial Court, however,  held that the evidence of the above two eye witnesses was  reliable as  against the  appellant  and  his brother  Sukhwinder   Singh  and  that  their  evidence  was strengthened by  that of Swaran Singh (DW 5). The High Court concurred with  all the findings of the trial Court but gave the benefit of doubt to Sukhwinder Singh as Swaran Singh (DW 5) did  not mention  him as  one of the persons who fired at the deceased.      Mr.  Lalit,  the  learned  counsel  appearing  for  the appellant submitted  that both  the trial Court and the High Court,  having   found  the  evidence  of  PW  4  and  PW  6 unacceptable as  against the  other accused  persons, should not have  relied upon  the self same evidence to convict the appellant. We  are not impressed by this contention for, the trial Court  recorded the  order of  acquittal in respect of three of  the accused  persons by giving them the benefit of doubt and  not on a finding that the evidence of the two eye witnesses examined  by the prosecution was totally false and

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absolutely unreliable.      It was  next contended  by Mr.  Lalit that  neither the trial Court nor the High Court was justified in relying upon the evidence  of the defence witness Swaran Singh (D.W.5) to record the  conviction against  the appellant.  According to Mr. Lalit,  the prosecution  having failed to prove its case against the  appellant through  its  eye-witnesses,  namely, P.W.4 and  P.W.6 could  not claim  its success solely on the basis of  the evidence of D.W.5, more so, when he figured as a witness  not on  behalf of  the appellant but on behalf of some of  the other  accused persons. We might have persuaded ourselves to  accept the  above contention  of Mr. Lalit, if the learned  Courts below had, after discarding the evidence of P.W.4  and P.W.6 altogether, based their findings against the appellant  solely relying upon the ocular version of the incident given  out by  D.W.5, who was examined on behalf of two of the other accused persons to prove that they were not party to  the murders  but admitted, in cross-examination by the learned  Public Prosecutor, that the appellant had fired at the deceased, for in criminal cases the burden of proving the guilt of the accused beyond all reasonable doubts always rests on  the prosecution  and, therefore,  if it  fails  to adduce satisfactory  and reliable evidence to discharge that burden it  cannot fall back upon the evidence adduced by the accused persons in support of their defence to rest its case solely thereupon. In the instant case, however, we find that the learned  Courts below  made use of the evidence of D.W.5 only for  lending assurance to the conclusions already drawn by the learned Courts on the basis of the evidence of P.Ws 4 and  6.   Such  a   course  is   legally  and   legitimately permissible, for  D.W.5 was subjected to cross-examination - and  in  fact  cross-examined  -  at  the  instance  of  the appellants  after   being  cross   examined  by  the  Public Prosecutor. That the appellant could not elicit any answe in his favour  thereby would  not alter the position as regards the admissibility. relevancy or worth of the evidence of the above witness.      It was  lastly contended  by Mr. Lalit that even if the prosecution case  was accepted in its entirety the appellant could not  be, consequent  upon the  acquittal of Sukhwinder Singh by  the High  Court, convicted  under Section  302 IPC simpliciter as  neither the  death of Sukhdev Singh nor that of Surjit Singh could be attributable to the injuries caused by him.  To appreciate  this contention of Mr. Lalit it will be necessary  to refer  to the  relevant evidence on record, particularly, that  of Dr.  Harish Chand Vaid (PW 5) who had conducted the  post-mortem examination.  As has been already noticed, according  to the  prosecution  case,  as  detailed through PW 4 and PW 6, Surjit Singh was fired at only by the absconding accused  Joginder Singh  resulting in  his death. The appellant,  therefore, cannot  at all be liable for that murder. So  far as Sukhdev Singh is concerned, P.W.4 & P.W.6 testified that the appellant shot at his back and Sukhwinder Singh at  his shoulder. From Dr. Vaid (PW 5), we get that he found the following injuries on the person of Sukhdev Singh:      1.   A lacerated  wound on  top and back      of left  shoulder measuring  2 1/2 cm. x      1/4 cm.  The margins were ecchymosed and      inverted..      2.   A lacerted  wound 1 1/4 cm. x 1 cm.      on back and right side of the upper half      of chest  placed 7 cm. from midline. The      margins were inverted and ecchymosed.      3.   A lacerted  would 3 1/2 cm. x 1 1/2      cm,. on  back and  right side  of  upper

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    half of  chest placed  2  cm.  inner  to      injury No.2.  It was  obliquely  placed.      The margins were inverted.      Dr.  Vaid   stated  that   injury  No.  2  and  3  were communicating with  each other;  while injury  No. 2 was the wound of  entry injury No. 3 was the wound of exit. Dr. Vaid further stated  that on  dissection of  injury No.1 he found that bullet  after fracturing  the acromion and left scapula entered the  upper lobe  of left lung, which was ruptured at three places.  He opined  that death  was due  to shock  and haemorrhage  as  a  result  of  injury  to  the  left  lung, accompanied with fracture. In the context of the evidence of P.Ws. 4  and 6  that the  appellant had fired on the back of the deceased  Sukhdev Singh,  the appellant can therfore, be said to have caused injuries No.2 and 3 and the other injury which, according  to the doctor was fatal, was caused by the shot fired  by Sukhwinder  Singh. Since, however, Sukhwinder Singh  stands  acquitted,  Section  34  IPC  would  have  no application whatsoever and the appellant will be liable only for his  act, namely, causing injuries No.2 and 3, which was the result  of one  shot, and,  by themselves, did not cause the death  of Sukhwinder  Singh. Resultantly,  the appellant cannot be  convicted for  the offence under Section 302 IPC, but as  he had  fired at  Sukhdev Singh with rifle he cannot escape his  conviction for the attempt to commit his murder. The  last  contention  of  Mr.  Lalit,  therefore,  must  be accepted.      On the  conclusions as  above, we  allow this appeal in part, set aside the conviction and sentence recorded against the appellant  under Section  302 IPC  and  instead  thereof convict him  under Section  307 IPC;  and  for  the  altered conviction sentence him to undergo rigorous imprisonment for ten years. The appellant, who is on bail, will now surrender to his bail bond to serve out the above sentence. The appeal is thus partly allowed.