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PETITIONER: HARJINDER SINGHSTATE OF PUNJAB

       Vs.

RESPONDENT: KARNAIL SINGH AND OTHERSKARNAIL SINGH AND OTHERS

DATE OF JUDGMENT:       06/03/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO.785 OF 1989                       J U D G M E N T NANAVATI. J.      Both these  appeals arise  out of  the judgment  of the High Court of Punjab and Haryana in Criminal Appeal No.59 of 1986. The  High Court  allowed the  appeal,  set  aside  the conviction and  acquitted the  respondents who were tried by the court of Additional Sessions Judge, Barnala, in Sessions Case No. 26 of 1984.      The three  respondents were  also tried  along with six others in  Sessions Case No.15 of 1984 for the same offences but on  a complaint  field by  the injured  victim Harjinder Singh. As  the two  versions were  totally different and the witnesses cited  and number  of accused were also different, this Court  had   on an  appeal  filed  by  the  complainant Harjinder  Singh,   directed  the  two  cases  to  be  tried separately. In  both these  cases the accused were tried for committing murders  of Major  Singh, Jit Singh, Dayal Singh, Nazir Singh  and Nachhattar  Singh and for causing an injury to Harjinder  Singh. In  Sessions Case  No.26 of  1984,  the learned Judge  convicted all  the three  accused (the  three respondents in these appeals) under section 302 read with 34 IPC. In  Sessions Case  No.15  pf  1984  the  convicted  six accused including  the three  respondents and  acquitted the remaining three.  The  High  Court  acquitted  all  the  six convicted accused.  Aggrieved  by  their  acquittal  in  the police case,  the complainant  Harjinder Singh and the State have filed these appeals.      On the  basis of  the same  incident,  same  FIR,  same investigation and  same witnesses  as  many  as  19  persons including complainant  Harjinder Singh  were tried  for  the offences punishable  under Sections 147,353,447 and 307 read with 149  IPC in  Sessions Case  No.9 of  1984. The  learned Additional Sessions  Judge convicted 8 accused and acquitted the remaining  11. In  appeal (Criminal  Appeal No.91-SB  of 1986) the  High Court confirmed their convection but reduced their sentence  to the  period  already  undergone.  In  the appeal filed  by those  accused we have held the neither the FIR   was recorded truly not the investigation was conducted

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fairly and  even at  the trial  the accused had not received fair treatment  at the hands of the prosecution. Taking that view and  disbelieving the  evidence of three police witness (who were  examined as  eye-witnesses in this case also) and that of  the two Investigating Officers we have allowed that appeal today  by a  separate  judgment  and  set  aside  the conviction of those convicted accused.      The  three  policemen,  Head  Constable  Chanan  Singh, Constable Karnail  Singh and Constable Pawan Kumar, who were examined  as   eye-witnesses,  deposed   before  the   Court consistently with  the FIR   lodged by Head Constable Chanan Singh and  further stated  that the  three  respondents  had fired at Harjinder Singh and his companions in order to save themselves. The  trial court  had rightly held that the said version given  by those witnesses was not true and the whole incident had  not really  happened in   the manner stated by them. The  trial court  relying upon  the admission  of  the respondents that they had fired shots at Harjinder Singh and his companions and the falsity of their defence as indicated by the  medical evidence  and other  circumstances held that the accused had failed to establish that they had caused the deaths of  those five  persons in  exercise of  the right of private defence.  The  trial  court,  therefore,  held  them guilty under  section 304/34  IPC for causing murder of each of those  five deceased. However, no separate punishment was imposed upon them as they were also convicted along with six others in Sessions Case No.15 of 1984 under section 302 read with 34  IPC for  the murders of those five deceased persons and were sentenced to suffer imprisonment for life.      The High  Court allowed  the appeal  and set  aside the conviction of  the respondents as it was of the view that in absence of any substantive it was not permissible to convict them under Section 302 read with 34 IPC. The High Court held that the trial court by disbelieving the three policemen who were examined  as eye-witnesses  and also  disbelieving  the plea of private defence raised by the accused could not have legally convicted  the respondents  under section  302  read with 34  IPC. There  was nothing in the evidence of the eye- witnesses on  the basis  of which the respondents could have been held  guilty for  causing the  murders  of  those  five persons.  On  the  contrary  their  evidence  supported  the defence version.  The respondents  had merely  stated in the statements under  Section Cr. P.C. that they had fired shots in self-defence  without admitting  that any of  their shots had hit  anyone  from  the  opposite  party.  There  was  no material before  the Court  on the  basis of  which  it  was possible to  say who  had caused  whose death.  There was no material before  the Court  on the  basis of  which it could have been  said that  while firing  shots from the guns they were acting  in furtherance  of their common intention. Thus in absence  of any  reliable evidence  it was  not proper to convict the  respondents in this case for causing the deaths of those  five persons. The High Court was, therefore, right in setting  aside their  conviction and  acquitting them. As the FIR  was recorded, investigation was carried out and the trial was  conducted in  such a  way that  it was  bound  to result into  an acquittal  of the  respondents, we hold that the acquittal  of the respondents in this case shall have no bearing on  the conclusion  that can  be lawfully reached in appeal arising  out of  the complaint case. As we are of the opinion that  the impugned  judgment of  the High  Court  is cored, these appeals are dismissed.