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PETITIONER: PAMMI @ BRIJENDRA SINGH

       Vs.

RESPONDENT: GOVERNMENT OF MADHYA PRADESH

DATE OF JUDGMENT:       12/02/1998

BENCH: K.T. THOMAS, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Thomas J.      This appeal  is filed  under Section 379 of the Code of Criminal Procedure  ("Code") and  Section 2  of the  Supreme Court (Enlargement  of Criminal Appellate Jurisdiction) Act, 1970. Appellant was third accused in the trial court. He and all the  other accused arrayed along with him were acquitted by  the   Sessions  Court.  When  State  of  Madhya  Pradesh challenged the  acquittal before  the High  Court of  Madhya Pradesh, a  Division Bench  of the  High Court  reversed the acquittal as  against  the  present  appellant  Pammi  alias Brijendra Singh  and his  father Thakkar  Singh (who was the first accused). But the latter died and hence this appeal by special leave  has been filed by Pammi alias Brijendra Singh alone.      This case  relates to the gunning down of three persons (1. Suresh Palia, 2. Suresh Sharma and 3. Bajrang Rajput) at about 9 P.M. on 24.6.1983 near Apsara Punjab Hotel at Itwara Bazar.  (Piparia  in  Madhya  Pradesh).  The  story  of  the prosecution is in brief, the following:      One Santhosh Singh (who died in a subsequent encounter) and Kamal  Kumar Jaiswal  (PW-5) were  partners in  a liquor business. They  had to settle accounts between them and that erupted  estrangement  between  them  which  led  to  severe antagonism  as   against  each   other.  On   the  night  of occurrence,  Santhosh   Singh  and  his  henchmen  including appellant and Thakkar Singh went to the house of Kamal Kumar Jaiswal and  asked him  to settle  the accounts by showing a pistol at  him. During that time, the three deceased went to that house  and  tried  to  pacify  them  which  led  to  an altercation  and  it  got  heated  up.  Santhosh  Singh  and appellant and  Thakkar Singh  took out guns and fired at all the deceased.  Appellant then  brought a pistol from his car (which  was  parked  nearby)  and  fired  at  Suresh  Palia; Santhosh Singh  fired at  Bajrang Rajput while Thakkar Singh shot at  Suresh Sharma.  All the three victims slumped down. PW-1 Rajendra  Prasad Palia  (brother of  Suresh Palia)  who reached the  spot was  also shot  at by  the appellant.  The shooting spree did not spare some of the onlookers like PW-6 and PW-9.  However, the  assailants retreated  and fled from

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the scene in their vehicles.      As information  about the  escape of  the  killers  was transmitted through  wireless to the nearby police stations, the police  of Tamiya Station succeeded in blocking the fiat car in  which Santhosh  Singh  and  Pammi  were  travelling. Though they  resisted, the  police succeeded in intercepting both, but  in the  encounter, Santhosh  Singh died while the appellant was overpowered by the police.      There is no dispute that the three deceased died due to bullet injuries  at the  time and  time  and  at  the  place suggested by the prosecution. The appellant admitted, during examination under  Section 313  of the  Code,  that  he  and Santosh Singh  went to  the house  of  PW-5  to  settle  the accounts and that the three deceased reached the house soon. According to  him when  an altercation  ensued  between  the three deceased  and Santosh Singh, the deceased persons took out irons  rod for  attacking  Santosh  Singh  and  then  he whipped out  his pistol  to  counter  the  threat  in  self- defence. Though  the appellant  denied having  used any fire arm, he  admitted that some persons who came along with them had, for self protection, opened fire.      Thus the defence strategy, adopted by the appellant, is a plea  for right  of private  defence for Santosh Singh and denial of any action for the appellant himself.       The  prosecution examined  five  eye  witnesses  (PW-1 Rajendra Prasad  Palia, PW-2  Vinod Kumar,  PW-4 Ashok Kumar Sharma, PW-6  Ravi Kumar Sharma and PW-9 Roop Narayan Sahu). Among them PW-6 and PW-9 have only said that when the firing took place  they too  sustained injuries, but they could not say who  fired and  at  whom.  However,  PW-1  has  said  in evidence  in  categoric  terms  that  deceased-Suresh  Palia received bullet  injuries from  the fire  arms used  by  the appellant. PW-1 himself was injured. PW-2 and PW-4 also said in the same manner though they did not receive any injury.      Learned Sessions Judge heavily harped on the failure of the investigating  agency to  conduct a  test identification parade and observed that such failure had seriously affected the veracity  of the  version of the eye- witnesses. Learned Sessions Judge  then considered the defence version that the entire  episode   happened  because   of   the   bellicosity demonstrated by  the three  deceased with  iron rods  and he found that the defence version is more probable.      The Division  Bench of  the High  Court made a scathing criticism on  the reasoning  of the  Sessions Judge and held that the  conclusion arrived  at by the Sessions Court is so unreasonable as  to warrant  interference in appeal. Some of the remarks of castigation made by the Division Bench of the High Court  against the  Sessions Judge seem to have crossed the limit  of judicial  restraint which judges, particularly of the  superior Courts,  are expected to maintain. One such observation is this:      "It is  believed that  the  learned      judge has  made up his mind to give      benefit of doubt to accused persons      of  the   basis  of  Identification      Parade not  being held  to identify      the accused.  Making such  type  of      mentality  and   to   analyse   the      evidence is a judicial fault on the      basis of which dignity of judges is      often suspected"      We are  not  quoting  some  other  disparaging  remarks hurled against  the trial  judge except saying that they too are couched in similar to tone.      Time and  again this  Court has  emphasised the need to

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exercise judicial restraint, particularly while dealing with judgments  and  orders  of  the  lower  courts.  We  are  in agreement with  the submission  of Shri Sushil Kumar, senior counsel that  the High  Court should have avoided such types of unsavoury  remarks against  a judicial  personage of  the lower hierarchy.  We do  not want to say anything more on it now.      However, we  are not  persuaded to  interfere with  the finding of the High Court that the Sessions Judge went wrong in acquitting the appellant. The question of private defence for Santosh Singh does not arise because on the admission of the  appellant  himself,  Santosh  Singh  and  his  henchmen (including the  appellant and  his father) went to the house of PW-5  equipped with  fire arms  to settle  scores, though they say  that they  went there to have the accounts settled between  them.   Such  an  entry  into  the  house  of  PW-5 particularly during  night time  is an  act of aggression on the part  to those  who went  there. At any rate, such entry was enough to instill reasonable apprehension in the mind of the occupant  of the  house that  the accused have committed criminal trespass  and they might persist in mounting up the aggression.      It is  one of the canons of the law of right of private defence that  such a  right would not enure to an aggressor. Any step resorted to thwart an act of aggression is regarded as defensive  act and  no right  of private  defence can  be claimed against such an act of self-defence.      So, the  High Court was correct in repudiating the plea of the  accused claiming right of private defence. According to us,  the Division  Bench of  the High Court has correctly found that evidence of the eye-witnesses in this case is not to  be   jettisoned  merely   due  to  the  failure  of  the investigating officer to conduct test identification parade. This is  not a  case where  the witnesses  were  seeing  the appellant for  the first  time. Nobody  has a case that PW-1 Rajendra Prasad  Palia had  not seen  the appellant prior to the occurrence.  In fact,  he mentioned the names of some of the assailants  including this  appellant event in the First Information  Statement   which  he  lodged  soon  after  the occurrence. PW-2  Vinod Kumar  and PW-4  Ashok Kumar  Sharma have also  said that  they knew  the appellant  earlier.  If their evidence is found believable, then there is no warrant for the  reasoning that  failure to hold test identification parade had vitiated the vitiated the evidence of those three eye-witnesses.      However, Shri  Sushil  Kumar,  learned  senior  counsel contended that  none of  the above  witnesses had  seen  the occurrence, not even PW-1. Normally, one cannot even venture to think that  PW-1 who was an injured person would not have been present  at  the  scene.  But  learned  senior  counsel endeavoured to  show that  the injury found on the person of PW-1 was  subsequently created  for projecting  him  as  eye witness.      Dr.  D.K.Jain  (PW-22)  Assistant  Surgeon  of  Piparia Primary Health Centre has stated in his evidence that he had examined PW-1 at 11.30 P.M. on the same day. He then noted a fire arm injury on the right thigh of PW1 with blackening on the corners  and its  exit wound was on the back side of the thigh. Details of the said injury were entered in Exhibit  B-40  report. The  doctor-witness further said that injured was admitted  in the hospital. In this context, we note that even in  Exhibit P1,  First  Information  Report,  PW-1  had stated that he was shot at by the appellant.      Yet, the  trial court  accepted the  contention of  the defence that  the injury  on the  person of  PW-1 would have

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been self-inflicted.  The first premise for such an approach was the  blackening on  the entry  side of  the wound  which could support  an inference  that it would have been a close rage shot.  Sessions Judge  highlighted an  answer which PW1 gave in cross-examination that he would have been fired from a distance  of 30-40  feet and  on its strength it was found that the  story of  his sustaining  injury at the occurrence was untrue.  We are not impressed by the aforesaid reasoning based on that answer in cross-examination because either the distance  mentioned   by  PW-1   would  have  been  a  wrong estimation or  what he  would have  meant was that the range would be  30-40 C.M.s  instead of  feet.  At  any  rate  for reaching a  conclusion that  injury would  have  been  self- inflicted, the above premise is too tenuous.      The second  premise is  that one Purushotham - driver - had stated  in Exhibit  D-8 that  after the incident in this case, he  had occasion to take one Rajendra Palia on a motor cycle from  Panchsheel Store  (Mangal Waria).  Thus, learned Sessions Judge  used Exhibit  D-8  for  disbelieving  PW-1’s version. Exhibit  D-8 is  a copy  of  the  deposition  of  a witness called Purushotham recorded in another criminal case tried in  the Court of a Judicial Magistrate of First Class. That deponent  Purushotham was  not examined as a witness in this case.  We have  absolutely not  doubt that the Sessions Judge had  committed a gross error in banking on Exhibit D-8 for any purpose whatsoever in this case.      We are  in agreement  with the  reasons advanced by the High Court  for believing  that PW-1 was an eye-witnesses to the occurrence  and he  sustained injury  from the appellant during the  course of  the occurrence. Evidence of PW-1 that it was the appellant who fired at deceased Suresh Palia does not suffer  from any infirmity. There is no reason to reject his testimony.      Learned Sessions  Judge rejected  the evidence  of  the other two  witnesses PW-2  and PW-4  also. But  the Division Bench of  the High Court has chosen to take a different view of it  and found the testimony believable. We make a note of the fact  that PW-1  has said in evidence about the presence of the  other two witnesses. Learned senior counsel attacked their testimony  mainly on  the ground  that their names did not find  a place  in the  FIR or in the Inquest Report, but the investigating  officer came  to know  of them  only at a later stage of investigation. It is a matter of appreciation of evidence  and the  mere fact  that PW-1  in  the  injured condition did not mention the names of all the eye-witnesses when he gave the first information statement is no ground to frown at  the evidence  of PW-2  and PW-4.  The  High  Court cannot be said to have gone wrong in acting on the testimony of those  two witnesses  which  was  subjected  to  rigorous cross-examination and no material has been elicited to doubt their presence.  At any  rate, as it relates to appreciation of evidence,  we are  not taking  a different view from what the High Court has taken about that.      We have  considered  the  arguments  addressed  by  the learned senior counsel and we are not persuaded to upset the conclusion made by the Division Bench of the High Court that the appellant Pammi had fired at Suresh Palia and caused his death. We,  therefore dismiss  this appeal. The bail bond of the  appellant  will  stand  cancelled  and  we  direct  the Sessions Judge, Hoshanghabad to take prompt steps to put the appellant back into jail for undergoing the sentence imposed on him.