REPPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    406            OF 2009 (Arising out of SLP (Crl.) No. 2315 of 2007)

Joginder Singh …Appellant

Versus

State of Punjab ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Punjab and Haryana High Court upholding the conviction of the appellant

for offence punishable under Section 302 of the Indian Penal Code, 1860 (in

short  the ‘IPC’) and sentencing him to imprisonment for life and fine of

Rs.2,000/-  with  default  stipulation  as  recorded  by  learned  District  and

Sessions Judge, Ferozepur.  

3. Background facts in a nutshell are as follows:

A complaint under Section 302 IPC was filed by Harbans Singh son

of  Gurbachan  Singh,  resident  of  Chak  Saidoke,  Police  Station  Sadar

Jallalabad,  Tehsil  Fazilka  against  Joginder  Singh  stating  therein  that  on

18.1.1993 at about 9.00 AM. complainant, his brother Harjinder Singh alias

Inder Singh, Sube Singh son of Partap Singh, Jarnail Singh son of Mukhtiar

Singh, Pohla Singh son of Aroor Singh all residents of village Chak Saidoke

had gone to the school of the village for the purpose of casting their votes in

the  Panchayat  Election.  At  about  9.45  or  10.00  a.m.  he  and  his  brother

Harjinder Singh made a request to the voters to keep peace so that there may

not be any dispute in casting their votes for the people, who were already

standing in queue to cast their votes. In the meantime, Constable Joginder

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Singh No. 1421, PC Branch, office of the Senior Superintendent of Police,

Ferozepur, (the accused-appellant) challenged his brother Harjinder Singh

and abused him and subsequently, he fired a shot from his rifle. The shot

fired  at  Harjinder  Singh  hit  on  his  head  and  he  died  at  the  spot.  The

occurrence was witnessed by the complainant along with Sube Singh son of

Partap Singh, Jarnail Singh son of Mukhtiar Singh and Pohla Singh son of

Aroor  Singh,  all  residents  of  village  Chak  Saidoke.  Joginder  Singh  was

requested  not  to  fire  the  shot,  but  he  did  not  pay  any  attention  and

committed the murder of Harjinder Singh. He lodged a report with Inspector

Harbans Lal, who recorded his statement and a case was registered vide FIR

No.5 dated 18.1.1993 under section 304 IPC, but he was not arrested by the

police and no action was taken against him, notwithstanding the fact that he

visited the Police Station on number of times and this necessitated the filing

of complaint.

The inquest report on the dead body of Harjinder Singh was prepared

by Inspector Harbans Lal and he sent the dead body of Harjinder Singh to

Civil Hospital, Fazilka, where post mortem on the dead body of Harjinder

Singh was conducted. As per the post mortem report,  cause of death was

due to shock and haemorrhage as a result of injuries Nos.1 and 2, which

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were on the vital part of the brain and were sufficient to cause death in the

ordinary course of nature and the injuries were caused with fire-arms.

After investigation was completed, charge sheet was filed. Since the

appellant abjured guilt, trial was held.  

Stand of the accused appellant before the trial Court apart from the

plea of denial was that some people tried to snatch away ballot boxes as a

consequence of which the law and order situation became bad. The police

party fired in the air to disburse the mob. The trial Court placing reliance on

the evidence of the eye witnesses recorded the conviction as noted above.  

In appeal the primary stand was that the so called eye witnesses were

related to the deceased and, therefore, their evidence should not have been

relied upon. The High Court found that merely because the prime witnesses

were related to the deceased that did not in any event affect the credibility of

their evidence. It was submitted that only one shot was fired and, therefore,

Section 302 IPC has no application.  It  was also noted that  there was no

evidence  that  the  voters  had  become  uncontrollable  or  that  there  was

snatching of ballot boxes or ballot papers. The evidence clearly established

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that  the  accused  aimed  at  the  head  of  the  deceased  and  fired  the  shot.

Accordingly, the High Court dismissed the appeal.   

4. The  stand  taken  before  the  High  Court  was  re-iterated  by learned

counsel for the appellant in this appeal.

5. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment of the trial Court as affirmed by the High Court.

6. Merely because the eye-witnesses are family members, their evidence

cannot ‘per se’ be discarded. When there is allegation of interestedness, the

same has  to  be  established.   Mere  statement  that  being  relatives  of  the

deceased they are likely to falsely implicate the accused cannot be a ground

to discard the evidence which is otherwise cogent and credible.  We shall

also deal with the contention regarding interestedness of the witnesses for

furthering the  prosecution  version.   Relationship  is  not  a factor  to  affect

credibility of a witness.  It is more often than not that a relation would not

conceal  actual  culprit  and  make  allegations  against  an  innocent  person.

Foundation has to be laid if plea of false implication is made.  In such cases,

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the court has to adopt a careful approach and analyse evidence to find out

whether it is cogent and credible.

7. In Dalip Singh and Ors.  v. The State of Punjab (AIR 1953 SC 364) it

has been laid down as under:-

“A  witness  is  normally  to  be  considered  independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause,  such as  enmity against  the  accused,  to  wish  to implicate him falsely.  Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person.  It  is true,  when feelings run high and there  is  personal  cause for  enmity,  that  there  is  a tendency to drag in an innocent person against whom a witness  has  a  grudge  along  with  the  guilty,  but foundation  must  be  laid  for  such  a  criticism and  the mere fact of relationship far from being a foundation is often a sure  guarantee of  truth.   However,  we are not attempting any sweeping generalization.  Each case must be judged on its own facts.  Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence.  There is no such general  rule.  Each  case  must  be  limited  to  and  be governed by its own facts.”

8. The above decision has since been followed in  Guli Chand and Ors.

v. State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State

of Madras (AIR 1957 SC 614) was also relied upon.

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9. We may also observe that the ground that the witness being a close

relative  and  consequently  being  a  partisan  witness,  should  not  be  relied

upon, has no substance.  This theory was repelled by this Court as early as

in  Dalip  Singh’s case  (supra)  in  which  surprise  was  expressed  over  the

impression which prevailed in the minds of the Members of the Bar that

relatives were not independent witnesses. Speaking through Vivian Bose, J.

it was observed:  

“We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires  corroboration.   If  the  foundation  for  such  an observation is  based on the fact that  the witnesses are women and that  the fate of  seven men hangs  on their testimony, we know of no such rule.  If it is grounded on the reason that they are closely related to the deceased we are unable to concur.  This is a fallacy common to many criminal  cases  and one which another  Bench of this  Court  endeavoured  to  dispel  in  –  ‘Rameshwar v. State of Rajasthan’ (AIR 1952 SC 54 at p.59).  We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.”

10. Again in Masalti and Ors.   v.  State of U.P.  (AIR 1965 SC 202) this

Court observed: (p. 209-210 para 14):

“But it would, we think, be unreasonable to contend that evidence given by witnesses  should be discarded only on the ground that it is evidence of partisan or interested

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witnesses.......The mechanical rejection of such evidence on the sole ground that  it  is partisan would invariably lead to failure of justice.  No hard and fast rule can be laid  down  as  to  how  much  evidence  should  be appreciated.   Judicial  approach  has  to  be  cautious  in dealing  with  such  evidence;  but  the  plea  that  such evidence should be rejected because it is partisan cannot be accepted as correct.”

11. To the same effect is the decisions in  State of Punjab v.  Jagir Singh

(AIR 1973 SC 2407),  Lehna v.  State of Haryana (2002 (3) SCC 76) and

Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381).  

12. The  above  position  was  also  highlighted  in  Babulal  Bhagwan

Khandare  and  Anr.  v.  State  of  Maharashtra [2005(10)  SCC 404],  Salim

Saheb  v.  State of M.P.  (2007(1) SCC 699) and  Sonelal v.  State of M.P.

(SLP (Crl.) No.3220 of 2007 disposed of on 22.7.2008).

13. In this case though one pellet was recovered and there was only one

injury.  But that does not on the facts of the case take the offence out of the

purview of Section 302 IPC. It cannot be laid down as a rule of universal

application that when there is one shot fired, Section 302 IPC is ruled out. It

would depend upon the  factual  scenario,  more particularly,  the nature  of

weapon, the place where the injury is caused and the nature of the injury. In

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the instant case it has been clearly established that the accused aimed at the

head of the deceased and fired the shot which hit him on his head and that

too was fired from a close range.   

14. Above being the position the applicable offence is Section 302 IPC.

We do no find any merit in this appeal which is accordingly dismissed.     

……………………………….…J. (Dr. ARIJIT PASAYAT)

…………………..………………J. (ASOK KUMAR GANGULY)

New Delhi, February 27, 2009

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