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CASE NO.: Appeal (crl.)  682-683 of 1996

PETITIONER: Shingara Singh                                   

RESPONDENT: State of Haryana and another                     

DATE OF JUDGMENT: 04/11/2003

BENCH: N. SANTOSH HEGDE &  B.P. SINGH

JUDGMENT: JUDGMENT WITH SPECIAL LEAVE PETITION (CRL.) NOS.2106-2108 OF 1996      

B.P. SINGH, J.

       The appellants in these appeals and special leave  petitions are  Suba Singh (A-1) and his son Shingara Singh  (A-2). They were both tried by the Additional Sessions  Judge, Sirsa in Sessions  Trial No.46 of 1991 charged  variously of offences under Sections 302, 307, 302/34,  307/34 IPC and under Section 25/27 of the Arms Act.  The  learned Additional Sessions Judge by his judgment and  order dated March 6, 1992 acquitted A-2 of all the charges  levelled against him but found A-1 guilty of the offence  under Section 304 Part I holding that he had exceeded his  right of private defence.  Accordingly, he sentenced A-1 to  undergo rigorous imprisonment for a period of 10 years and  to pay a fine of Rs.50,000/-, in default further to undergo  rigorous imprisonment for a period of two years.  Both the  appellants were acquitted of other charges levelled against  them.

       Aggrieved by the judgment and order of the learned  Additional Sessions Judge, Criminal Appeal No. 375-DBA  of 1992 was preferred by the State of Haryana before the  High Court of Punjab and Haryana at Chandigarh against the  acquittal of A-2 under Sections 302 and 307 read with  Section 34 IPC.  Suba Singh preferred Criminal Appeal No.  105-SB of 1992 against his conviction under Section 304  Part I IPC, while the informant Balbir Singh preferred a  Criminal Revision No.68 of 1993 against the same  impugned judgment and order acquitting the appellants of  the other charges levelled against them.  The two Appeals  and the Criminal Revision have been disposed of by a  common judgment and order of the High Court dated March  6, 1992.  The High Court allowed the appeal filed by the  State and held A-2 guilty of the offence under sections 302  and 307 IPC.  A-1 was found guilty and convicted under  Section 302/34 and 307/34 IPC.  A-1 was also found guilty  of the offence under Section 27 of the Arms Act.  A-2 has  been sentenced to undergo life imprisonment under Section  302 IPC and to pay a fine of Rs.10,000/- and in default to  undergo further rigorous imprisonment for two years.  He  has also been sentenced to undergo rigorous imprisonment  for 10 years under Section 307 IPC and to pay a fine of  Rs.5,000/- in default to undergo further rigorous

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imprisonment for one year.  A-1 has been sentenced to  undergo life imprisonment under Section 302/34 IPC and to  pay a fine of Rs.10,000/- in default to undergo further  rigorous imprisonment for ten years.  Under Section 307/34  IPC he has been sentenced to undergo rigorous  imprisonment for ten years and to pay a fine of Rs.5,000/- in  default to undergo further rigorous imprisonment for one  year.  While so allowing the appeal preferred by the State  the High Court has in a mechanical manner allowed the  Criminal Revision preferred by the informant, which in  effect had become infructuous since an appeal had been  preferred by the State which was ultimately allowed.  In any  event a Criminal Revision preferred by a private party  against an order of acquittal could not result in the  conviction of the  accused.

       The Criminal Appeal preferred by A-1 against his  conviction under Section 304 Part I was also disposed of in  the above terms.

       The appellant  Shingara Singh has preferred Criminal  Appeal Nos. 682-683 of 1996 while A-1 Suba Singh has  preferred Special Leave Petition Nos. 2106-2108 of 1996.   In the Special Leave Petition notice was issued with the  direction that the matter be heard along with Criminal  Appeal Nos. 682-683 of 1996  preferred by A-2.  In fact,  there was no need for A-1 to file a Special Leave Petition  since in view of the provisions of Section 380 of the Code of  Criminal Procedure, an appealable judgment  and order  having been passed against co-accused Shingara Singh, A-2,  appellant Suba Singh, A-1 also had a right of appeal to this  Court.  However, we grant special leave to Suba Singh and  proceed to dispose of these appeals by this common  judgment and order.

       A-1, Suba Singh and Gurdeep Singh (father of the  deceased) lived in adjoining houses in Village Chak Sahban.   Suba Singh, A-1 and Gurdeep Singh are married to two  sisters and are therefore related as co-brothers.   A-2,  Shingara Singh is the son of Suba Singh while the deceased  Surinder Singh was the son-in-law of Gurdeep Singh.  It is  not in dispute that the courtyard of the two houses are  adjacent divided by a common wall.  The courtyard of  Gurdeep Singh is at a slightly higher level than the courtyard  of A-1, Suba Singh.  The case of the prosecution is that  Gurdeep Singh sold away his lands in village Chak Sahban  and purchased lands in village Mallewala.  He also intended  to sell his house in village Chak Sahban and with that in  view he had entered into an agreement with A-1, Suba Singh  to sell his house in the village for a sum of Rs.52,000/-.   According to the prosecution, A-1 Suba Singh failed to pay  the amount within the time stipulated and therefore a dispute  arose between him and Gurdeep Singh.  On July 1, 1991 the   matter was settled by a Panchayat consisting of relatives of  the parties who are themselves interrelated.  In Panchayat it  was settled that A-1 Suba Singh will purchase the house and  will pay a sum of Rs.45,000/- by way of consideration.  It is  not in dispute that immediately after the decision of the  Panchayat A-1, Suba Singh actually paid a sum of  Rs.45,000/- to Gurdeep Singh and honoured the decision of  the Panchayat.

       The case of the prosecution is that later in the day at  about 6.30 p.m. Balbir Singh, PW-5  Raghbir Singh son of  Gurdeep Singh, Rur Singh, PW-6, Jagdip Singh and

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Gurdeep Singh were taking meals in the courtyard of  Gurdeep Singh.  According to the evidence produced by the  prosecution there were cots on which food was being served  by Gian Kaur, PW-7, wife of Gurdeep Singh.  The case of  the prosecution is that Suredner Singh (deceased) son-in-law  of Gurdeep Singh wanted to take away his cycle which   rested against the common wall of his courtyard.  While he  was doing so the appellants climbed up the common wall  with the help of a ladder.  While A-1 was empty handed, A- 2 was carrying a licenced gun belonging to his father.  A-1  exhorted his son to kill Surinder Singh since he had been  helping his father-in-law in the dispute relating to the  purchase of the house in the village.  A-2, thereafter fired at  Surinder Singh  injuring him on his forehead as a result of  which he fell down.  Gian Kaur, PW-7 rushed to the rescue  of her son-in-law but A-2 shot at her also causing injury on  the dorsal aspect of her right hand.  On alarm being raised  both the appellants ran away.

       After leaving the dead body in the care of Jeet Singh  who had come there by then, Balbir Singh, PW-5 left for the  police station.  After covering a distance of two kilometers  he boarded a tractor and came to Sirsa where he met  Sukhdev Singh to whom he narrated the incident.  They,  thereafter, went to the police station Sadar and PW-5 lodged  a report at 10 p.m.

       Sub Inspector, Pohp Singh, PW-10, the Investigating  Officer came to the place of occurrence and held inquest  over the body of Surinder Singh.  He, thereafter arranged to  get the body sent for post mortem examination.  He also  lifted blood stained earth from the place of occurrence.   Thereafter, he went to the hospital and in the early morning  of July 2, 1991  recorded the statement of Gian Kaur, PW-7  and Rur Singh, PW-6.  He again came back to the place of  occurrence and prepared a rough site plan Ex. RR.

       Dr. Beena Garg, PW-1 conducted the post mortem  examination on the body of Surinder Singh at the General  Hospital, Sirsa on July 2, 1991 at 10 a.m..  She found the  following ante-mortem injuries on the person of deceased,  Surinder Singh.         "1.     A lacerated wound with inverted margins of  2.5 cm. x 2 cm. on the middle of fore-head 4 cm. above  the base of nose on mid line.  Abrasion of 2 cm area in  size was present surrounding this wound.  Underlying  bones were fractured.  Brain matter was seen to the  whole on dissection.  Underlying bone fractured.   Direction of the wound was upward and posteriorly.   There was opening of 1.5 cm. x 1 cm. on the top of  occipital bone in the midline.  There was fracture of  frontal both pariet alright temporal and occipital bone.   Small pieces of bone were present in fractured area of  occipital bone. Two flatent metallic pieces were  recovered from this area.  These pieces were sealed and  handed over to the police.   

2.      2.5 cm x 1 cm lacerated wound with coverted  margins present over the left frontal area, 5 cm above the  lateral margins of left eye brow.  Underlying bones were  fractured.  On dissection there was communication of  injuries No.2 and 3.  Direction of the track was slightly  upward-backward and medially.

3.      Lacerated wound 2.5 cm x 1.5 cm with everted

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margins over the left temporal region of scalp, 6 cm from  the pinna of left ear.  On dissection, the underlying bone  was found fractured."

According to PW-1, the  death was due to injuries to  the brain caused by a fire arms.  The injuries were sufficient  to cause death in the ordinary course of nature and the time  that elapsed between the death and the post mortem  examination was 12 to 24 hours.   Having regard to the  nature of injuries she opined that firing must have been done  from lower level to higher level.  Deceased must have been  at a higher level than the person firing the gun.  There were  no blackening scars around the wounds.   

       The case of the prosecution is that the accused were  arrested on July 3, 1991.  Shingara Singh, A-2 produced  before the Investigating Officer the licenced gun of his  father (A-1) which was taken into possession by the  Investigating Officer.  Suba Singh, A-1 is said to have  produced two empty and four live cartridges which were  also taken into possession.

       On July 4, 1991 the site plan was drawn up by the  draftsman, PW-4 which was  marked Exh.P-E.  The said site  plan shows that the height of the wall on the side of the  courtyard of Gurdeep  Singh was 4 feet 4 inches.  According  to PW-4 he prepared the site plan as pointed out to him by  Balbir Singh, PW-5 and Raghbir Singh.

       After investigation, the appellants were put up for trial  variously charged as noticed earlier.  The defence of the  appellant Suba Singh as stated by him in his examination  under Section 313 Cr.P.C. was that the occurrence did not  take place in the manner alleged by the prosecution.  He  admitted that a Panchayat was convened for resolving the  dispute relating to the purchase of land by him.  He also  admitted that in view of the settlement arrived at he paid a  sum of Rs.45,000/- to Gurdeep Singh.  However, he denied  that he climbed up the wall with the help of a ladder and  exhorted his son Shingara Singh to kill Surinder Singh, who  was taking away his cycle which rested against the common  wall.   He stated that it was Surinder Singh (deceased) who  had climbed the wall and was resorting to brick batting.   With folded hands he requested him not to do so.  At that  time his son Shingara Singh, A-2 was not present.  Despite  his pleadings, Surinder Singh (deceased) removed the bricks  from the wall and threw them at him which hit him.  Gian  Kaur, PW-7 was supplying brick bats to Surinder Singh  from the wall.  Surinder Singh (deceased) shouted that he  had got the amount reduced by Rs.7,000/-.  When this was  happening he went inside his house, brought his gun and  fired shots in his self defence which might have hit him.  He  stated that he had himself produced the gun before the  Investigating Officer as also the two empties on the very  first day i.e. July 1, 1991.  A false case has been made out  against him and his son.  In fact, his son was in the fields at  the time of occurrence but he had been falsely implicated on  account of his being his only son.  Witness PW-6, Rur Singh  had old enmity with him and he had also appeared as a   witness against him in a civil case prior to the occurrence.  Same is the defence of Shingara Singh, A-2.

       At the trial, the prosecution mainly relied upon the  testimony of three alleged eye witnesses viz. Balbir Singh  PW-5, Rur Singh PW-6 and Gian Kaur, PW-7.  It also

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appears from the record that though some other witnesses  were cited by the prosecution they were given up as being  unnecessary which included Gurdeep Singh, Raghbir Singh,  Jagbir Singh and some others.

       The Trial Court on consideration of the evidence on  record came to the conclusion that the prosecution case as  alleged was not true and that the occurrence took place in all  probability in the manner alleged by the defence.  It noticed  that all the three aforesaid eye witnesses had stated earlier  that both the appellants had climbed the common wall and  from there the firing took place resulting in injuries to  Surinder Singh (deceased) and Gian Kaur, PW-7.  This  version was given by PW-5 in his FIR and the same version  was repeated by PWs 6 and 7 in their statements recorded  under Section 161 Cr. P.C..  However, at the trial all the  three witnesses consistently gave a different version so as to  bring the prosecution case in accord with the findings of the  Medical Officer who had opined, having regard to the nature  of injuries, that the injured must have been at a higher level  than the person using the fire arm.  If really, the appellants  had climbed the wall and A-2 fired at Surinder Singh,  trajectory of the pellets would have shown a downward  movement and not an upward movement as found by the  Medical Officer.  At the Trial all the three witnesses  changed their version by stating that only A-1, Suba Singh  climbed on the wall with the help of a ladder, while  his son  Shingara Singh, A-2 was still on the ladder and had not  climbed the wall.  He was standing on the ladder in a  manner that only his face was visible from the courtyard of  Gurdeep Singh.  He placed the barrel of the gun on the wall  and without resting the butt of the gun against his shoulder,  fired at Surinder Singh.  In this manner, it was sought to be  projected that Surinder Singh was at a higher level than the  level of the weapon of Shingara Singh, A-2 when he  fired  the gun.  The Trial Court concluded that the tailored  version  given by the witnesses for the first time in the witness box  was only with a view to bring the prosecution case in accord  with the medical evidence on record and to negative the case  of the defence that it was Surinder Singh, who was standing  on the wall while the firing took place from the ground  level.         The Trial Court also found that Suba Singh, A-1 had  six injuries on his person.  On being arrested he was sent for  medical examination by the Investigating Officer and was  examined by Dr. Chaudhary, DW-1 who found the  following injuries on his person:- "1.             A bruise 4 x 2 cm on dorso  lateral aspect of metacarpal of index  finger, with abrasion 1 cm x linear in the  space between right index finger and  thumb on dorsal aspect.  Soft scalp of  light brown colour was present and  colour of bruise was brownish.   Tenderness was present and x-ray was  advised.

2.      A lacerated wound 2 cm x 2 cm  x skin and tissue deep on the back of the  left leg, on lateral side, 7 cm above the  sole of the left foot.  Serious fluid exuded  from the wound.  The granolation tissue  was visible at places and edges of the  wound were irregular and inflamed, with  swelling of adjacent parts.  

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3.      Swelling 2 x 1 cm on the top of  scalp, left to the midline and 12 cm from  the base of nose.

4.      Bruise 4 x 2 cm on left scapular  region above its upper border, placed  horizently of brownish colour.

5.      Complaint of pain on the right  side of chest and infera axillary region,  with tenderness.

6.      Abrasion = cm x linear on the  back of the right elbow."

       It will be noticed from the above injuries that one of  the injuries was on the scalp and caused by a blunt  substance.  The possibility of these injuries being caused by   brick-bats could not be ruled out.  In cross- examination Dr.  Chaudhary admitted that the possibility of all the injuries  except No.3 having  been caused by friendly hands could not  be ruled out.  The Trial  Court, therefore, concluded that the  presence of injuries on Suba Singh, A-1 which had not been  explained by the prosecution  supported the defence version  and rendered it probable.  Though the injuries were found to  be simple in nature and could have been self inflicted as  well, it was difficult to believe that so many injuries could  be self suffered by the accused.   

       The Trial Court found that the other evidence on  record also supported the defence version and rendered it  probable.  The Investigating Officer, PW-10 admitted in his  cross-examination that when he visited the place of  occurrence he had found that some of the bricks had been  removed from the common wall.  It was the case of the  defence that Surinder Singh (deceased) had thrown bricks at  Suba Singh, A-1 from top of the wall.  Though it was the  case of the prosecution that A-1 climbed the wall and A-2  stood on the ladder and fired at the deceased, in the site plan  Exh. P-R which was prepared by the Investigating Officer  on July 2, 1991, the ladder has not been shown at all.  A  second site plan was drawn to scale on July 4, 1991 by PW- 4 which is Exh. P-E.  In that plan the point where the cycle  of the deceased had been kept has not been shown.  PW-10  explained by saying that in the site plan drawn by him Exh.  P-R the cycle was shown at ’J’.  He, however, admitted that  the cycle was not taken into possession.  The Trial Court  found that point J the last point shown in the marginal notes,   seems to have been interpolated later.  These facts, therefore  do not  support the case of the prosecution that Surinder  Singh had gone to take his bicycle when he was fired upon  by A-2 who had climbed on top of the wall with the help of  a ladder.  The medical evidence was only consistent with the  hypothesis, that having regard to the direction of the injury  on the head of Surinder Singh,  he must have been at a  higher level when fired upon by someone who was at a  lower level. This was consistent with the case of the defence  that firing was resorted to from the ground level when  Surinder Singh (deceased) was throwing brick bats after  climbing the common wall.  The Trial Court also found that  Rur Singh did not appear to be a reliable witness because he  denied the fact that  A-1 had deposed against him in a Civil  Suit.  This statement was proved to be false and the  deposition of A-1 was produced before the Court which

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proved the fact that A-1 had deposed against him in a Civil  suit and this  also established  that Rur Singh was not on  good terms with A-1.

       Having regard all aspects of the matter the Trial Court  concluded that the defence version appeared to be more  probable.  It was also consistent with the medical evidence  on record.  The prosecution witnesses had made vital  improvements in their deposition with a view to make their  evidence consistent with the medical evidence on record.   The prosecution  failed to explain the injuries suffered by A- 1.  The fact that some bricks had been removed from top of  the common wall supported the defence case that Surinder  Singh (deceased) had thrown bricks at A-1.  The existence  of ladder and cycle was rendered doubtful because they were  not even shown  in the site plans prepared by the  prosecution.  Moreover, the appellants not only produced the  gun but also the empties which were found to have been  fired from the same gun.  The Trial Court also considered  the question as to whether there was any motive on the part  of the appellants to commit the offence.  It found that the  appellants could have no motive to commit the offence  because the dispute if any was amicably settled by the  Panchayat and respecting the decision of the Panchayat A-1  had promptly paid Rs.45,000/- to Gurdeep Singh.  Having  done so, there was no reason for them to commit the  offence.  On the other hand, so far as Gurdeep Singh and his  family members are concerned, they may have reconciled to  the fact that they had to receive Rs.7,000/- less than the  amount agreed to be paid, but Surinder Singh being a young  person was angry and aggrieved on account of the fact that  the Panchayat had reduced the price of the house to be sold  by his father-in-law.  The motive if any could be entertained  only by Surinder Singh and not by the appellants.  However,  as observed by the Trial Court motive was not of  much  significance in a case where the prosecution sought to prove  its case by  direct evidence of eye witnesses.  The Trial  Court, therefore, concluded that the occurrence took place in  the manner stated by the defence.  In all probability Shingara  Singh, A-2 was not  present when the occurrence took place.   However, it held that though A-1, Suba Singh had a right of  private defence, he certainly exceeded that  right in as much  as the facts and circumstances did not justify his using the  weapon in such a manner as to cause the death of Surinder  Singh (deceased).  He, therefore, found him guilty of the  offence punishable under Section 304 Part I of IPC.

       In the appeals the High Court has reversed the  findings recorded by the Trial Court.  The High Court held  that the Trial Court was not justified in holding that the  defence version was more probable since all the three  witnesses had improved upon their statements under Section  161 Cr.P.C. and made significant  changes while deposing  before the Trial Court.  The High Court considered the  deposition of these three witnesses namely PWs 5, 6 and 7  and came to the conclusion that they had not stated that the  firing was resorted to from the ground level.  Their  deposition in Court  proved that Shingara Singh, A-2 while  on the ladder fired at Surinder Singh.

       In our view, the High Court has completely missed  the significance of the finding recorded by the Trial Court.   The Trial Court found that in the FIR as also  statements  recorded under Section 161 Cr. P.C. the witnesses had  clearly mentioned that both the appellants had climbed on

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top of the wall and from there Shingara Singh, A-2 fired at  Surinder Singh.  If this version were to be accepted, the  injury caused would not have been of the nature found by  the Medical Officer who was clearly of the opinion, having  regard to the trajectory of injuries,  that the person firing the  fire arm was at a lower level than the victim.  Therefore,  with a view to bring their case in consonance with the  medical evidence on record, all the three witnesses made  significant changes while deposing in Court and all of them  thereafter consistently stated that while A-1 had climbed on  top of the wall A-2 stood on the ladder in such a manner that  only his face was visible from across the wall and while  standing in that position, keeping the barrel of the gun on the  wall and without resting the butt of the gun against his  shoulder, he fired at the deceased.   There was no dispute  that their deposition in Court was consistent, but what was  observed by the trial court was that their version as to the  manner of occurrence as deposed to by them was at variance  with what was stated in the first information report by PW 5,  and in the statements of PWs 6 and 7 recorded under Section  161 Cr. P.C.   When confronted with their earlier statements,  they could not give a satisfactory explanation, with the result  that their credibility was sufficiently impeached.  The  change of version by each one of them, and to the same  effect, was deliberate and not merely accidental or an  account of lapse of memory.  It cannot be disputed that this  was a very   significant  change.  It cannot   also   be  disputed that the change was deliberately made by all the  witnesses, so that the prosecution case became consistent   with the medical evidence on record.  We, therefore, do not  find any error committed by the Trial Court in coming to  this conclusion.

The High Court then held that the upward  direction  of the wound could be on account of deflection of the  metallic pieces of the bullet after striking the occipital  bone.   In the first instance there is no basis for this speculation.  No  such question was put to the doctor PW-1, Beena Garg, nor  is there any other evidence to support this finding.   Moreover, this was not a case of bullet being fired at the  deceased.  The doctor found pellet injuries caused to the   deceased.  The pellets having penetrated the skull bone,  there was no possibility of its deflection because the brain  matter is soft and cannot cause deflection of pellets or bullet.   Be that as it may, it cannot be readily inferred, having regard  to the evidence of the prosecution itself, that the direction of  the injury was otherwise and not as found by PW-1.  The  finding that the pellet must have got deflected is at best  speculative.

       The High Court then found that the failure of the  prosecution to explain the injuries on Suba Singh, A-1 did  not affect the case of the prosecution.  The reason assigned  by the High Court is that he was not medically examined on  the same day but was got examined by the police  two days  later, on July 3, 1991.  This reason does not impress us  because the medical evidence on record is consistent with  the injuries having been caused at about the time of  occurrence.  The High Court then observed that according to  the doctor the injuries except one could be self suffered. It  therefore jumped to the conclusion that all the injuries may  have been self suffered.  It is possible for one to conjecture  that the injuries  may have been self suffered, but that does  not provide a good reason for setting aside a finding of fact  recorded by the Trial Court which came to the conclusion

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that A-1, Suba Singh resorted to firing when Surinder Singh  (deceased) threw brick bats at him.  The evidence of the  Investigating Officer, PW-10 also disclosed that some bricks  had been removed form top of the wall where the firing took  place.  Unfortunately, the Investigating Officer does not  appear to have bothered to inspect the courtyard of the  accused and therefore it is not possible to conjecture as to  whether some brick bats were lying in the court yard of the  accused, which may have further supported the defence  case.  The High court has observed that no such brick bats  were found on the spot, but in doing so the High Court has  not correctly appreciated the evidence of the Investigating  Officer who does not appear to have at all inspected the  courtyard of the accused.  The High Court, further, observed  that removal of the bricks from the wall would have been  shown by the Investigating Officer in the site plan and also  by the drafts-man who prepared another site plan, but these  two witnesses have not shown the removal of the bricks  from the wall  in the site plans prepared by them.  No doubt  it is so, but what the High Court has failed to notice is the  factual statement made by PW-10, the Investigating Officer  who after consulting the case diary stated before the Court  that he had  noted the fact that some of the bricks had been  removed from the common wall.          

       If such be the factual position, the failure to show that  in the site plans cannot prejudice the case of the defence.   The High Court then found  that the appellants had a motive  to commit the offence and it held so for the reason that A-1,  Suba Singh had to make payment and part with  money to  buy the house after he had backed out of the agreement.  In  our view, having regard to the fact that the price of the house  had been reduced by the Panchayat, Suba Singh, A-1 could  hardly entertain a grudge on this account.  Moreover, he  readily paid Rs.45,000/- to Gurdeep Singh immediately after  the settlement,  before the occurrence took place on that day,  which only shows that he was more than happy to buy the  house at a reduced price.  Therefore, in our view, he had no  motive to commit the offence and we entirely agree with the  finding of the trial court in this regard.   

By its impugned judgment the High court reversed the  order of acquittal in so far as Shingara Singh, A-2 is  concerned and convicted him of the offence under section  302 IPC.  It further convicted accused No.1 Suba Singh of  the offence under section 302 read with section 34 IPC  instead of section 304, Part I for which he was convicted by  the trial court.  We are of the view that the High Court was  not justified in setting aside the order of acquittal of A-2  under section 302 IPC  having regard to the facts of the case.   It is well settled that in an appeal against acquittal the High  Court is entitled to re-appreciate the entire evidence on  record but having done so if it finds that the view taken by  the trial court is a possible reasonable view of the evidence  on record, it will not substitute its opinion for that of the trial  court.  Only in cases where the High Court finds that the  findings recorded by the trial court are  unreasonable or  perverse or that the court has committed a serious error of  law, or where the trial court had recorded its findings in  ignorance of relevant material on record or by taking into  consideration evidence which is not admissible, the High  Court may be  justified in reversing the order of acquittal.   We do not find this case to be one where the High Court was  justified in reversing the findings recorded by the trial court.   At best, it may be contended that the view taken by the High

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Court is also a reasonable view of the evidence on record.   However, we cannot say that the view taken by the trial  court was not another reasonable view of the evidence on  record.  It is well settled that where two views are  reasonably possible on the basis of the evidence on record,  the one that favours the accused must be accepted.  In any  event in a case of  acquittal if the view of the trial court is a   possible reasonable view of the evidence on record,  interference by the High Court may not be justified.   Apart from the reasons given by the trial court we  find that there are many other features which create a serious  doubt about the truthfulness of the prosecution case.  The  case of the prosecution was that the prosecution witnesses  and others were having their meals at about 6.30 p.m. sitting  on cots in the court-yard of Gurdeep Singh.  PW-5, Balbir  Singh has stated that there were three such cots lying in the  courtyard of Gurdeep Singh when PW-10 the Investigating  Officer came there.  But he further admits that the existence  of these cots is not sown in the site plan prepared by him nor  was it shown in the site plan prepared by PW-4.   

       The second aspect of the prosecution case is that the  cycle of Surinder Singh was resting against the common  wall and when he went to bring the cycle he was shot at by  Shingara Singh A-2.  However, PW-10, the Investigating  Officer has admitted in his deposition that the cycle was not  shown in the site plan prepared by him.  He then stated that  it was shown in the site plan Ex. PR at J shown in the note.   The trial court looked at the site plan and came to the  conclusion that the note in the site plan showing the  presence of the bi-cycle was an interpolation.  We also had a  look at the site plan Ex. PR and we are not in a position to  say that the trial court was not justified in making that  observation.      

       So far as the ladder is concerned, PW-5, Balbir Singh  stated that the ladder was in the same position when the  Investigating Officer came to the place of occurrence but he  could not explain why it was not shown in the site plan  prepared by the police.  Even PW-10 the Investigating  officer had to admit that in the site plan the position of the  ladder was not shown.  These features of the prosecution  case also support the conclusion reached by the trial court  that the occurrence must have taken place in a manner  different than the one deposed to by the alleged eye  witnesses.  The evidence on record with regard to the  existence of cots in the court-yard of Gurdeep Singh, the  existence of a bicycle, as also about the existence of a ladder  is rather unsatisfactory and creates a serious doubt as to  whether the prosecution witnesses are telling the truth.  The  omission to show them in both the site plans cannot be  attributed to a mere lapse on the part of the investigating  agency.  In fact so far as the site plans are concerned, the  case of the prosecution is that they were prepared in the  presence of PW 5 and another witness and on their pointing.   However, PW 5 denied that the plans were prepared in his  presence.  The other witness was not examined.

       We are, therefore, of the considered view that the  High Court was not justified in setting aside the order of  acquittal passed in favour Shingara Singh, A-2.  On  appreciation of the evidence on record it appears to us that  the occurrence in all probability may have taken  place  in  the manner alleged by the defence, and not in the manner  alleged by the prosecution.  If that be so we must hold that

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Shingara Singh, A-2 was not even present when the  occurrence took place.  He, therefore, is entitled to acquittal.

       However, so far as the case of Suba Singh, A-1 is  concerned, we agree with the findings of the trial court that  he had exceeded the right of private defence.  In the facts  and circumstances of the case there was no justification for  using his gun in such a manner as to cause the death of the  deceased.  We, therefore, find him guilty of the offence  under section 304 Part I IPC but in the facts and  circumstances of the case sentence him to rigorous  imprisonment  for  five years and to pay a fine of  Rs.10,000/-, in default of payment of fine he shall undergo  imprisonment for further period of one year.

       Accordingly the appeals preferred by Shingara Singh,  A-2 are allowed.  The appeals preferred by Suba Singh, A-1,  are partly allowed and he is found guilty of the offence  punishable under section 304 Part I IPC instead of section  302 IPC and sentenced as indicated above.

L.......T.......T.......T.......T.......T.......T.......T.......T.......T.......T.......T... ....T.......T.......T.......T.......T.......T.......T....R. Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited#Collector of Centra l Excise, Chandigarh#2003-11-25#25622#4051#P. VENKATARAMA REDDI### Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey and Ors.#State of Bihar#2003- 11-25#25623#104-106#DORAISWAMY RAJU### Appeal (civil)#Appeal (civil)  10906 of 1996#1996#Shanti Kumar Panda#Shakutala Devi#2003-11- 03#25624#10906#R.C. LAHOTI### Appeal (civil)#Appeal (civil)  11483 of 1996#1996#Amrendra Pratap Singh#Tej Bahadur Prajapat i & Ors.#2003-11-21#25625#11483#R.C. LAHOTI### Appeal (civil)#Appeal (civil)  9130 of 2003#2003#Ameer Trading Corporation Ltd.#Shapoorji Da ta Processing Ltd.#2003-11-18#25626#9130#CJI### Appeal (civil)#Appeal (civil)  14178-14184 of 1996#1996#Brij Behari Sahai (Dead) through L.R s., etc. etc.#State of Uttar Pradesh#2003-11-28#25627#14178-14184#Doraiswamy Raju### Appeal (crl.)#Appeal (crl.)  1968 of 1996#1996#Goa Plast (P) Ltd.#Chico Ursula D’Souza#2003- 11-20#25628#1968#B.P. Singh### Writ Petition (crl.)#Writ Petition (crl.)  199 of 2003#2003#Ashok Kumar Pandey#The State of  West Bengal#2003-11-18#25629#199#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  20 of 2003#2003#Surendra Paswan#State of Jharkhand#2003-11-28#2 5630#20#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  278 of 1997#1997#Vidyadharan#State of Kerala#2003-11-14#25631#2 78#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  292 of 1997#1997#State of Madhya Pradesh.#Awadh Kishore Gupta a nd Ors.#2003-11-18#25632#292#DORAISWAMY RAJU### ###State of Punjab & Anr.#M/s Devans Modern Brewaries Ltd. & Anr.#2003-11-20#25633##CJI.### Appeal (crl.)#Appeal (crl.)  331 of 1997#1997#Shriram#State of Madhya Pradesh#2003-11-24#256 34#331#DORAISWAMY RAJU### Appeal (civil)#Appeal (civil)  3630-3631 of 2003#2003#The Prohibition & Excise Supdt., A.P.  & Ors.#Toddy Tappers Coop. Society, Marredpally  & Ors.#2003-11-17#25635#3630-3631#CJI.### Appeal (crl.)#Appeal (crl.)  371-372 of 2003#2003#Ram Dular Rai & Ors.#State of Bihar#2003-1 1-27#25636#371-372#S.B. Sinha.### Appeal (civil)#Appeal (civil)  4075-4081 of 1998#1998#Nair Service Society#Dist. Officer, Ke rala Public Service Commission & Ors.#2003-11-17#25637#4075-4081#CJI.### Appeal (civil)#Appeal (civil)  4698-4700 of 1994#1994#State of U.P. & Ors.#Lalji Tandon (Dea d)#2003-11-03#25638#4698-4700#R.C. LAHOTI### Appeal (crl.)#Appeal (crl.)  506 of 1997#1997#State of Karnataka#Puttaraja#2003-11-27#25639#

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506#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  519-521 of 2003#2003#Goura Venkata Reddy                                    Vs.#State of Andhra Pradesh#2003-11-19#25640#519-521#DORAISWAMY RAJU### Appeal (crl.)#Appeal (crl.)  530-531 of 2003#2003#Bhargavan & Ors.                                       #State of Kerala                                                #2003-11-17#2564 1#530-531#DORAISWAMY RAJU### Appeal (civil)#Appeal (civil)  7371 of 2002#2002#N.D. Thandani (Dead) By Lrs.                            #Arnavaz Rustom Printer & Anr.                          #2003-11-24#25642#7371#R .C. LAHOTI### Appeal (civil)#Appeal (civil)  9205-07 of 2003#2003#The Land Acquisition Officer, Nizamabad,  District, Andhra Pradesh   #Nookala Rajamallu and Ors.                             #2003-11 -21#25643#9205-07#DORAISWAMY RAJU### Transfer Petition (crl.)#Transfer Petition (crl.)  77-78 of 2003#2003#K. Anbazhagan                                              #The Superintendent of Police & ors.#2003-11-18#25644#77 -78#S.N. VARIAVA### Appeal (civil)#Appeal (civil)  7868 of 1995#1995#ITW Signode India Ltd.                                  #Collector of Central Excise                 #2003-11-19#25645#7868#CJI### Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###                                                                    Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh  

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#2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh  

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#2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS Appeal (civil)#Appeal (civil)  4051 of 1996#1996#M/s Pepsi Foods Limited                              #Collector of Central Excise, Chandigarh   #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR. LAKSHMANAN. ###Appeal (crl.)#Appeal (crl.)  104-106 of 2003#2003#Bikau Pandey andS 25671