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PETITIONER: ROOP SINGH AND OTHERS

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT28/08/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A.

CITATION:  1973 AIR 2617            1974 SCR  (1) 528  1974 SCC  (3) 307  CITATOR INFO :  RF         1992 SC 891  (24)

ACT: Code  of  Criminal Procedure 1898, s. 417-Reversal  by  High Court  of  verdict  of  acquittal  passed  by  trial  court- Principles to be observed by High Court.

HEADNOTE: The  appellants were tried for murder and  causing  grievous hurt.   They  were acquitted by the Trial Court.   The  High Court  however, relying on two of the witnesses produced  by the prosecution, convicted them.  In appeal by special leave to this Court it was contended that in reversing the verdict of   acquittal  the  High  Court  had  acted   outside   its jurisdiction  under S. 41.7 Criminal Procedure Code and  had not observed the principles laid down by this Court. Dismissing the appeal, HELD  :  It is well settled that the High  Court  in  appeal under  s.  417 of the Code of Criminal  Procedure  has  full power  to review at large the evidence upon which the  order of  acquittal was founded and to reach the  conclusion  that upon the evidence the order of acquittal should be reversed. No  limitation should be placed on that power unless  it  be found  expressly stated in the Code, but in  exercising  the power  conferred  by  the  Code  and  before  reaching   its conclusion  upon  fact  the High Court  should  give  proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses;  (2) the  presumption  of innocence in favour of the  Accused,  a presumption  certainly not weakened by the fact that he  has been acquitted at his trial; (3) the right of the accused to the  benefit  of  any  doubt, and (4)  the  slowness  of  an appellate  court in disturbing a finding of fact arrived  at by  a  judge who had the advantage of  seeing  the  witness. [534E] Bishan  Singh & Ors. v. The State of Punjab, Cr.  App.   No. 125/1972 decided on August 9, 1973, referred to The  Judgment of the High Court in the present case did  not any  way run counter to the above principles and called  for no interference.

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 189 of 1971. Appeal  by special leave from the Judgment and  Order  dated February  26, 1971, of the Punjab and Haryana High Court  at Chandigarh in Criminal Appeal No. 96 of 1968. Nuruddin Ahmed and U. P. Singh, for the appellants. O. P. Sharma, for the respondent. The Judgment of the Court was delivered by KHANNA, J. This is an appeal by special leave by Roop  Singh (30),  Paran  Singh (42), Nirbhai Singh (22),  Maghar  Singh (56),  Tara  Singh  (30) and Naib  Singh  (25)  against  the judgment  of  the  Punjab & Haryana  High  Court.   The  Six appellants  were tried along ,with Major Singh  (14),  Inder Singh  (50)  and  Teja  Singh  (42)  in  the  court  of  the Additional  Sessions-Judge  Barnala on  various  charges  in connection with an occurrence which resulted in the death of three  persons,  Mastan  Singh (55),  Amar  Singh  (55)  and Mohinder  Singh  (26) and injuries to Bachan Singh  (PW  9). Learned  Additional  Sessions Judge acquitted all  the  nine accused.  On appeal by the State 529 of  Punjab,  the  High  Court  convicted  the  six   accused appellants  under  section  302 read with  section  149  and section  326  read with section 149 Indian  Penal  Code  and sentenced  each of them to undergo imprisonment for life  on the  first count and rigorous imprisonment for a  period  of three  years on the second count.  Both the  sentences  were ordered  to run concurrently.  The State appeal against  the acquittal  of  Major Singh, Inder Singh and Teja  Singh  was dismissed. The  case  for  the prosecution is that  there  was  a  long standing enmity between the party of the accused and that of the three deceased persons.  In 1964 Kaka Singh, brother  of Roop  Singh  accused, and Nagender Singh,. father  of  Major Singh  accused  and ’brother of Inder  Singh  accused,  Were murdered.  Twelve persons, included Atma Singh Sarpanch  PW, Bachan Singh PW and Mohinder Singh deceased were  prosecuted in  the  case  relating  to the murder  of  Kaka  Singh  and Nagender  Singh.  Four accused in that case, including  Atma Singh,  Bachan and Mohinder Singh were acquitted, while  the remaining  accused were convicted and sentenced  to  undergo imprisonment for life.  Another cause of strained  relations between  the  parties  was  that  Hazura  Singh,  father  of Paranjan  Singh accused, had been murdered amount 12  or  13 years  ago.   Nek Singh, Bachhattar Singh and  Bikar  Singh, sons  of  Amar Singh deceased, were convicted by  the  trial court  in the case relating to the murder of  Hazura  Singh, but  they  were  acquitted  on appeal  by  the  High  Court. Security proceedings were also started by the police against the parties on account of their strained relations. Mastan  Singh deceased, it is stated had given his  land  on batai to Amar Singh deceased.  The maize crop from the  land was  thrashed on November 7, 1966 at the mill of  one  Dalip Singh at a short distance from the abadi of village,  Kangar to  which  the  parties belonged.  The  thrashing  work  was complete by 3 p.m. At about 5.30 p.m. on that day Amar Singh deceased and his son PW Gurmail Singh (16) as well as Mastan Singh  deceased, his son Mohinder Singh deceased and  nephew PW Bachan Singh (45) were present at the mills, as they were engaged at that time in removing the thrashed maize.   While these persons were busy in weighing and trying the maize  in bundles,  the nine accused came there from the direction  of the village abadi.  Roop Singh, Inder Singh and Major  Singh

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were  armed with barchhas, while Teja Singh had a gun.   The remaining accused carried gandasas.  Naib Singh, accused, it may  be  stated, is the son of Teja Singh.  As soon  as  the accused   arrived  there,  Roop  Singh  shouted   that   the assailants  of Kaka Singh and Nagelider Singh would  not  be spared.  Naib Singh then gave a gandasa blow on the head  of Bachan  Singh.   The wrong side of the galidasa  struck  the head  of Bachan Singh, whereafter another gandasa  blow  was given  by  Tara Singh accused on the left  wrist  of  Bachan Singh.  Naib Singh then aimed a gandasa blow at Bachan Singh and  he  was struck by the lathi portion  of  that  gandasa. Mastan  Singh  deseased  then ran towards  a  well.   Mastan Singh-had  hardly covered a distance of 8 or 9 karams;  when Teja  Singh, who was holding a gun, came in front of  Mastan Singh and asked him to stop.  Mastan Singh took shelter 530 behind  the  raised  wall of the well but  he  was  given  a barchha blow in the neck by Roop Singh.  Naib Singh,  Maghar Singh  and  Tara  Singh then gave gandasa  blows  to  Mastan Singh.  After Mastan Singh had fallen down, further injuries were  caused to him by Roop Singh, Tara Singh, Maghar  Singh and Naib Singh with their respective weapons.  Mastan  Singh died  at  the spot.  Mohinder Singh deceased  tried  to  run towards Village Dina but he was surrounded at a distance  of about  18  karams by Nirbhai Singh,  Paranjan  Singh,  Inder Singh  and Major Singh.  Mohinder Singh was given a  gandasa blow  on his head by Nirbhai Singh whereafter all the  above mentioned  four accused caused further injuries to  Mohinder Singh  with  their respective weapons.  Mohinder  Singh  too died at the spat.  After giving blows to Mastan Singh,  Tara Singh,  Roop  Singh, Naib Singh and Maghar Singh  ran  after Amar  Singh  and surrounded him near the house of  one  Tara Singh  refugee.   Tara Singh and Maghar Singh  gave  gandasa blows  on the head of Amar Singh.  A barchha blow was  given in the abdomen of Amar Singh by Roop Singh, while Naib Singh gave  a  gandasa blow on the neck of  Amar  Singh.   Further injuries  were caused to Amar Singh by the four accused  and he too died at the spot.  The occurrence, it is stated,  was witnessed  by  Bahadur Singh (PW 3), Bachan  Singh  (PW  9), Gurmail  Singh (PW 12) and Atma Singh Sarpanch (PW  15)  All the nine accused then went in pursuit of Atma Singh Sarpanch who ran inside the village abadi.  Bachan Singh also ran  to the  house of Gajjan Singh, while Gurmail Singh ran  to  his own  house.   Atma  Singh Sarpanch could  not,  however,  be secured by the accused. Accompanied by Gajjan Singh, Bachan Singh, according to  the prosecution,  went  through  a circuitous  route  to  police station Dialpura, at a distance of two miles from the  place of occurrence and lodged there report P.J. at 7 p.m.  Bachan Singh  was thereafter sent to hospital at Bhagta, where  his injuries  were  examined by Dr. Surjit  Singh  at  10-40p.m. Bhagta  is  at a distance of 7 or 8 miles  from  the  police station. After report about the present occurrence had been lodged  at the police, station, Sub Inspector  Jagjit  Singh left  the  police  station  and  arrived  at  the  place  of occurrence  at about 8.15 p.m. The Sub Inspector  found  the three  dead bodies lying there without being guarded by  any one.   As it was late in the night, the Sub Inspector  could not prepare inquest reports relating to the dead bodies.  On the  following morning, the Sub Inspector  prepared  inquest report.  Blood-stained earth was taken into possession  from the  places where the dead bodies were lying.   Post  mortem examination  on  the,  dead  bodies  was  performed  by  Dr. Tejinder  Singh at Mandi Phul at distance of 14  miles  from the  place  of  occurrence on November 9,  1966.   The  nine

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accused were thereafter arrested and the weapons of  offence were recovered from them. At the trial Bahadur Singh (PW 3) Bachan Singh (PW 9),  Gur- mail  Singh (PW 12) and Atma Singh (PW 15) gave eye  witness account  of  the occurrence and  supported  the  prosecution case.   The accused, in their statements under  section  342 Code of Criminal Procedure, 531 denied  the  prosecution  allegations  about  their   having participated  in the present occurrence.  According  to  the accused, they had been falsely involved in this case due  to enmity. The  trial  court  did not accept the evidence  of  the  eye witnesses.   The evidence about the recovery of the  weapons of  offence  was  also not accepted.  The  trial  court  was further  of the view that the injuries which were  found  on the  person of Bachan Singh PW were not received during  the course of the present occurrence.  There was also delay,  in the  opinion  of  the  trial court,  in  lodging  the  first information report with the police. The High Court in appeal, on consideration of the  evidence, found  that the testimony of Bachan Singh and Gurmail  Singh was  natural  and probable.  The High Court  did  not  place reliance  upon the evidence of Bahadur Singh and Atma  Singh as,  in the opinion of the High Court, the reason  given  by those   witnesses  for  their  presence  at  the  scene   of occurrence  was not convincing.  As regards the injuries  on the  person of Bachan Singh, the High Court was of the  view that  they  were received by him during the  course  of  the present  occurrence.  The High Court agreed with  the  trial court that there was delay in lodging the first  information report,  but that circumstance, in the opinion of  the  High Court, was not sufficient to discard the evidence of  Bachan Singh and Gurmail Singh.  The case against Teja Singh, Inder Singh and Major Singh, in the opinion of the High Court, was not  free  from  doubt.   The High  Court  in  this  context observed  that Teja Singh, though armed with a gun  had  not used  it.   Regarding Inder Singh and Major Singh  who  were alleged to be, armed with barchhas, the High Court  observed that only one stab wound had been found on the bodies of the three  deceased persons and the same was attributed to  Roop Singh.  In the result, the six appellants were convicted and sentenced as above. In appeal before us Mr. Nuruddin on behalf of the appellants has  argued  that the trial court on  consideration  of  the evidence had come to the conclusion that the same, was,  not reliable.  The High Court, it is submitted, should not have, in  the  circumstances,  interfered  with  the  judgment  of acquittal, of the trial court.  As against that, Mr.  Sharma on  behalf  of  the State has contended that  there  was  no cogent ground for the trial court to reject the evidence  of Bachan  Singh and Gurmail Singh.  The High Court,  according to  the learned counsel, accepted the evidence of those  two witnesses and interfered with the judgment of acquittal  for substantial reasons. It has not been disputed before us that a number of injuries were  caused to Mastan Singh, Amar Singh and Mohinder  Singh deceased during the course of the occurrence as a result  of which  they  died.  Dr. Tejinder Singh, who  performed  post mortem  examination  on the three dead  bodies,  found  nine incised  wounds  and 14 abrasions on the  body  of  Mohinder Singh  deceased.  There was also a post mortem wound on  the body  due  probably to eating by some animal.   Two  of  the incised  wounds, one of which was on the lower part  of  the neck  and  had  resulted  in the  cutting  of  the  muscles,

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oesophagus and trachea, and the other on the, right side  of the  abdomen, were individually sufficient to  cause  death. Mastan  Singh had five incised wounds, four  contusions  and five abrasions.  One of the incised wounds, which was on 532 the  right side of the neck and had resulted in the  cutting of the third vertebra and the main vessels of the right side of  the neck, was individually sufficient to cause death  in the ordinary course of nature.  Amar Singh had five  incised wounds,  one stab wound, two lacerated wounds, one  contused wound,  three abrasions and an injury which had resulted  in fracture  of the left radius and ulna.  Two of the  injuries of  Amar Singh, namely, an incised wound which had  resulted in  the  cutting of the skull bones completely on  the  back side of the head, and a stab wound with lacerated margins on the, right side of the abdomen, were individually sufficient to  cause  death in the ordinary course of  nature,  Omantum under  the  stab  wound  in the abdomen  had  also  a  wound measuring 1/2 x 1/2 x 1/2". The nature of the injuries which were found on the bodies of the,  three  deceased  persons  leaves  no  doubt  that  the assailants intended to cause their death.  According to  the case of the prosecution, the injuries to the, three deceased persons which resulted in their death had been caused by the appellants.   The  appellants  are further  stated  to  have caused  injuries  to Bachan Singh PW.  The  appellants  have denied  these  allegations.  The High Court in  holding  the prosecution  allegations in this respect to be well  founded has  relied  upon the evidence of Bachan Singh  (PW  9)  and Gurmail  Singh (PW 12).  The High Court disagreed  with  the learned  Additional Sessions Judge who was of the view  that the  above mentioned two witnesses were not present  at  the scene  of occurrence.  There were, in our opinion, good  and weighty reasons for the High Court to accept the evidence of Bachan  Singh  and Gurmail Singh and to  disagree  with  the trial court in this respect.  According to both Bachan Singh and  Gurmail Singh, they were present at the mills of  Dalip Singh  along with the three deceased persons as they had  to remove  thrashed  maize.  Bachan Singh PW is the  nephew  of Mastan Singh deceased and had gone to the mills to assist in the  removal of the maize from the mills premises.   Gurmail Singh  is the son of Amar Singh deceased and, as  such,  had been  taken by Amar Singh for the purpose of  thrashing  and carriage of the maize.  The evidence of Sub Inspector Jagjit Singh  shows that he found two quintals and 35 kg  of  maize lying at the place of occurrence when he arrived there.  The said  maize was taken by the Sub-Inspector into  possession. The  evidence of the Sub-Inspector further shows that  scale P5,  weight measure of 5 kg P10, groom P11 and  chajjli  P12 were also found there and were taken into possession.  These articles,  it  would  seem, were being used  for  the  batai (division)  of  the maise as Mastan Singh’s  land  had  been cultivated  on  batai by Amar Singh.  It is  natural  for  a father  in rural areas to take his son to a maize  thrashing mills  if  the  maize has to be  carried  home  after  being thrashed  at  the, mills.  The explanation given  by  Bachan Singh  and  Gurmail Singh regarding/ their presence  at  the scene of occurrence is, in our opinion, convincing and there appears to be no cogent ground to disbelieve their  evidence in this respect.  The fact that Bachan Singh had injuries on his  person, which are alleged to have been received  during the   course  of  the  present  occurrence,  lends   further assurance  to  the testimony of Bachan Singh.   We  are  not impressed  by  the  suggestion  on  behalf  of  the  accused appellants

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533 which  seems to have found favour with the trial court  that the  injuries  on  the person of  Bachan  Singh  were  self- inflicted or self-suffered.  Bachan Singh was found to  have the following three injuries               "(1.) Incised wound (margin clean cut) 2-1/2 x               1/2  x  1" on the dorsum of left  wrist  joint               cutting   the  tendons  underneath  and   also               cutting  the  head of ulna of left  arm.   The               tendons were extenser tendon of left arm.  The               head  of  the  ulna was  cutting  through  and               through.               (2)Lacerated  wound (Martin’s raggad) 1-1/2  x               1/4 x 2 deep on the right side of the bead  on               the posterior side, 4" from the-right pinea.               (3)Bruise reddish blue in colour, 3" x 1" with               interventing  area clear on the outer side  of               the right deltoid region." Enjury  No. 1 after X-ray was declared to be, grievous.   It is  also  in evidence that Bachan Singh had to  stay  as  an indoor patient in the hospital for 21 or 22 days because  of the injuries received by him and that during that period  he could  not  carry on his ordinary avocations of  life.   The nature of injuries on the person of Bachan Singh was such as would not, in our opinion, be normally suffered by a  person with a view to create evidence regarding his presence at the scene of occurrence.  We may mention in this context that no question  was  put to Dr. Surjit Singh on the  point  as  to whether the injuries of Bachan Singh could be self-inflicted or  self-suffered.   It  is also,  in  our  opinion,  highly improbable  that  after  the murder of  the  three  deceased persons, Bachan Singh instead of going to the police station would  spend  time on getting grievous  and  other  injuries inflicted on his person with a view to show his presence  at the  scene  of  occurrence.   The  fact  that  Bachan  Singh received  these  injuries  on  the evening  of  the  day  of occurrence cannot be disputed because Bachan Singh was found to have those injuries when he was examined at 10.40 p.m. by Dr.  Surjit  Singh at Bhagta at a distance of about 7  or  8 miles from police station Dialpura. It  has  been argued by Mr. Nuruddin that Bachan  Singh  and Gurmail  Singh would run away and would not  remain  present near the scene of occurrence after the assailants  commenced their attack.  This submission, in our opinion, is not well- founded.   Gurmail Singh is the son of Amar Singh  deceased, while Bachan Singh is the nephew of Mastan Singh and  cousin of  Mohinder  Singh.  Gurmail Singh and Bachan  Singh  would naturally  be  interested to know the fate  of  their  close relatives who were being attacked by the assailants.   There would  be  consequently  nothing surprising in  the  act  of Gurmail  Singh and Bachan Singh stopping at a safe  distance and from there looking behind and seeing the assault on  the three deceased persons.  The High Court on careful  scrutiny of the evidence of Bachan Singh and Gurmail Singh found  the same to be natural and probable.  We see no cogent ground to take a different view.  The evidence of the above  mentioned two witnesses has also been found by the High Court to be in accord with the medical evidence.  It may be mentioned  that the  heights of Mohinder Singh, Mastan Singh and Amar  Singh were   5  ft.11-1/2  in.,  6  ft-1  in.  and  5  ft-10   in. respectively.  All of them were 534 fairly well built.  The fact that all the three of them were killed  and  a very large number of injuries were  found  on their  bodies as also the fact that their  fourth  companion

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Bachan  Singh  too  was injuried shows that  the  number  of assailants was large.  We find in the circumstances no valid reason  to  disbelieve  the evidence  of  Bachan  Singh  and Gurmail  Singh that all the six appellants participated  in. the  assault  on  the deceased persons  as  alleged  by  the prosecution. Argument has been advanced on behalf of the appellants  that the occurrence took place at a late hour when it had  become dark and no one was in a position to fix the identity of the assailants.  There is no force in the above argument because it  is  established  by the prosecution  evidence  that  the attack  was  made  on the deceased persons  when  they  were engaged in the removal of the maize.  It is not likely  that the  deceased persons to whom the maize belonged  would  not remove the maize from the mills before it became dark.   The fact that the deceased persons were killed before they could remove  the maize shows that the occurrence took place at  a time  when  it  had not become dark.  It is  also  not  very likely that Bachan Singh would have been in a position to go to Bhagta primary health centre at 101.40 p.m. after lodging the  report at the police station at Dialpura if,  in  fact, the occurrence bad taken place after night fall.  Some  time must have also been taken by Sub, Inspector Jagjit Singh  in examining  the  injuries of Bachan Singh and  preparing  the injury  statement P.C. regarding those injuries.   The  said injury statement too was sent to Dr. Surjit Singh at  Bhagta when  Bachan Singh was sent there for being examined by  the doctor. As  mentioned by us recently in the case of Bishan  Singh  & Ors.  v. The State of Punjab(1) it is well settled that  the High  Court  in  appeal under Section 417  of  the  Code  of Criminal  Procedure  has full power to review at  large  the evidence on which the order of acquittal was founded and  to reach  the  conclusion that upon the evidence the  order  of acquittal  should  be  reversed.  No  limitation  should  be placed  upon that power unless it be found expressly  stated in  the Code, but in exercising the power conferred  by  the Code and before, reaching its conclusion upon fact the  High Court  should give proper weight and consideration  to  such matters  as  (1)  the views of the trial  judge  as  to  the redibility  of  the  witnesses;  (2),  the  presumption   of innocence in favour of the accused, a presumption  certainly not  weakened by the fact that he has been acquitted at  his trial;  (3) the right of the accused to the benefit of  any- doubt;  and  (4)  the allowance of  an  appellate  court  in disturbing  a finding of fact arrived at by a judge who  had the  advantage of seeing the witnesses.  We have been  taken through  the judgment of the High Court and we find  nothing in it which runs counter to the principles enunciated above. The judgment of the High Court, in our opinion, calls for no interference.    The  appeal  consequently  fails   and   is dismissed. G.C. Appeal dismissed. (1). Cr.  App.  No. 125/1972 decided on 9-8-1973. 535