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CASE NO.: Appeal (crl.)  820 of 1997

PETITIONER: State of Punjab

RESPONDENT: Ajaib Singh and others

DATE OF JUDGMENT: 13/04/2004

BENCH: N. SANTOSH HEGDE & B.P. SINGH.

JUDGMENT: J U D G M E N T

B.P. Singh, J.

                The State of Punjab has preferred this appeal by special  leave against the judgment and order of the High Court of  Punjab and Haryana at Chandigarh dated 24th September, 1996  in Criminal Appeal No. 627-DB of 1995 and Murder  Reference No. 7 of 1995 whereby the High Court while  allowing the appeal of the respondents herein acquitted them  of the charges under Sections 148, 302, 302/34 IPC.   Accordingly the High Court set aside the judgment of the  Additional Sessions Judge, Bhatinda, who by his judgment  and order dated 13th November, 1995 in Sessions Case No. 54  of 14.12.1190 had found the respondents guilty of offences  under Sections 302 and 302/34 IPC and sentenced them to  death.  Three other accused persons who were tried alongwith  the respondents herein were, however, acquitted by the trial  court.   

       The occurrence giving rise to the instant appeal occurred  on the night intervening 26th and 27th July, 1990.  The case of  the prosecution is that in the said occurrence five persons were  murdered by the respondents and their three accomplices,  since acquitted.  We may notice at the threshold that all the  respondents herein are brothers.  Of the three accused  acquitted by the trial court two are their brothers while the  third is said to be their friend.  The deceased include the  mother of the respondents namely Surjit Kaur, their maternal  grand mother Jangir Kaur, their sister Sujan Kaur, her husband  Mohinder Singh and their six years old daughter Kirna.  The  motive alleged by the prosecution was that their maternal  grand father Jeon Singh who had executed a will in favour of  the respondents and their brother Teja Singh in respect of 8  killas of land, had since changed the Will and bequeathed the  property in favour of his wife Jangir Kaur and daughter Surjit  Kaur.  The respondents and their brothers, therefore,  apprehended that their mother and maternal grand mother may  ultimately give the land to their sister Sujan Kaur and this is  what prompted them to commit the murders.

       The factual backgrounds in which the occurrence took  place may be briefly noticed.  

       Jeon Singh was married to Jangir Kaur and lived in  Village Adamke where the occurrence is said to have taken  place.  They had only one issue namely Surjit Kaur @ Seeto

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who was married to Mukhtiar Singh of village Singhpura.    They had five sons namely Teja Singh, Mohinder Singh, Ajaib  Singh, Balwinder Singh and Joginder Singh.  They had also  three daughters including Sujan Kaur (deceased).  It is not in  dispute that at some stage Surjit Kaur @ Seeto deserted her  husband Mukhtiar Singh and started living with Bogha Singh  of Village Jhunir.  Sujan Kaur, the daughter of Surjit Kaur was  married to Mohinder Singh of Chudhuwala.  They had two  children \026 a son Gurcharan Singh (PW-5) aged about 8 years  and a daughter Kirna aged about 6 years.  They resided in  village Chudhuwala.

       It is not in dispute that two sons of Surjit Kaur namely \026  Ajaib Singh and Joginder Singh (respondents herein) were  married and lived with their families at village Adamke with  their maternal grand father Jeon Singh.  It also appears from  the record that PW-5 Gurcharan Singh (son of Sujan Kaur  deceased) lived with his maternal grand mother Surjit Kaur at  village Jhunir and was studying at Fatta Maluka. His  education expenses were borne by Bogha Singh with whom  his maternal grand mother Surjit Kaur was living.               

       The case of the prosecution is that Jeon Singh (not  examined) and his brother Amar Singh owned 16 killas of  land in equal share.  The land of Amar Singh was recorded in  the name of Jangir Singh and the said land came in ownership  of Joginder Singh, respondent, since Jangir Kaur suffered a  decree in respect of the said land in favour of the aforesaid  Joginder Singh.  Remaining 8 killas of land was held by Jeon  Singh and he had executed a will bequeathing 2 killas of land  each in favour of his remaining 4 grand sons namely \026 Teja  Singh, Ajaib Singh, Mohinder Singh and Balwinder Singh. It  appears that he had later changed his mind and had executed a  fresh will bequeathing the aforesaid 8 killas of land in favour  of his wife Jangir Kaur and daughter Surjit Kaur (both  deceased).  It is further case of the prosecution that about 15- 30 days before the occurrence Sujan Kaur and her husband  Mohinder Singh left Chudhuwala and started residing at  village Adamke in the house of Jeon Singh alongwith their  children.  The occurrence is alleged to have taken place on the  night intervening 26th and 27th July, 1990 at Adamke.           The first information report relating to the occurrence  was lodged by Gurjant Singh (PW-4), a brother of Mohinder  Singh.  Though he was a resident of Village Chudhuwala he  claimed that on 26th July, 1990 in the evening he had come to  meet his brother Mohinder Singh at Village Adamke and slept  in the night in the house of Jeon Singh.  In the first  information report, which is a detailed report, lodged at 9.05  a.m. at P.S. Sardulgarh, the informant narrated the various  facts relating to the families of Jeon Singh, Surjit Kaur and  Mohinder Singh.  He also narrated facts relating to the  execution of wills by Jeon Singh as a result of which the sons  of Surjit Kaur bore a grudge against him.  He then stated that  he had come to village Adamke in the evening of 26th July,  1990 to see his brother Mohinder Singh.  He found that Surjit  Kaur had also come there from Jhunir.  Ajaib Singh, Joginder  Singh and their brother Balwinder Singh had also come there  but the families of Ajaib Singh and Balwinder Singh were not  present in the house.  In the evening, after taking dinner, he  and his nephew Gurcharan Singh (PW-5) went on the roof of  the house and slept on two cots while the remaining family  members slept in the courtyard.  There was an electric bulb  emitting light in the courtyard.  At about mid night, on hearing  some noise, he and Gurcharan Singh woke up and they saw  that in the courtyard Ajaib Singh armed with a kirpan;

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Balwinder Singh armed with a dah and Joginder Singh armed  with a kirpan were standing near the head of the cot of his  brother Mohinder Singh.  They were causing injuries to him  with their respective weapons.  This was being resisted by his  sister-in-law Sujan Kaur and her mother Surjit Kaur.  He saw  that Ajaib Singh gave two blows with his kirpan on the  shoulder of his brother and Joginder Singh gave a kirpan blow  on the neck of his brother with the result that his brother could  not get up from the cot.   He then described in the first  information report the manner in which Surjit Kaur, Sujan  Kaur, Jangir Kaur and Kirna were assaulted by the three  accused who had entered the courtyard.  In the first  information report the informant has given a detailed  description of the manner of assault and the injuries caused  thereby.  The informant and Gurcharan Singh (PW-5) raised  an alarm and the accused persons fled away.  They found that  all the five injured succumbed to their injuries.  According to  the informant he left Chowkidar Sukhdev Singh to look after  the dead bodies and he himself went to the police station to  lodge the first information report.   

The first information report was recorded by Inspector  Gurjit Singh who left for the place of occurrence immediately.   He recorded the statements of Gurjant Singh (PW-4) and  Gurcharan Singh (PW-5) under Section 175 Cr. P.C.  The  police party inspected the place of occurrence and lifted blood  stained earth from different places.  Inquest reports in respect  of the five dead bodies were prepared and the bodies were sent  for post-mortem examination.  It is also the case of the  prosecution that after arrest the respondents and other  accomplices suffered disclosure statements and got their  weapons of offence recovered.  The rough site plan of the  place of occurrence Ext. DA was prepared by the investigating  officer at the spot and a site plan drawn to scale Ext. DB was  prepared by Shiv Chand Jindal, draftsman with the assistance  of PW-4 Gurjant Singh  and PW-5 Gurcharan Singh.  After  investigation police filed a charge sheet against the  respondents herein as also their remaining two brothers  namely \026 Teja Singh and Mohinder Singh and their alleged  accomplice Baldev Singh.

At the trial the prosecution relied upon the testimony of  two eye witnesses namely \026 Gurjant Singh (PW-4) and  Gurcharan Singh (PW-5).  As noticed earlier they claim to  have witnessed the occurrence which took place in the  courtyard from the roof of the house where they were sleeping  on separate cots.  The trial court acquitted Teja Singh,  Mohinder Singh and Baldev Singh finding that they were not  named in the first information report and no specific overt act  was attributed to them.  The trial court found that their  participation in the occurrence, in the facts and circumstances  of the case, had not been established.  The trial court also  found that the alleged weapons of offence recovered at the  instance of the accused were not produced before the court.   Commenting on the testimony of Gurjant Singh (PW-4) the  trial court found that he had not mentioned the names of three  other accused persons who were subsequently sought to be  implicated.  They were persons who were known to him and if  they had really taken part in the occurrence, PW-4 could not  have omitted to name them in the first information report.  The  trial court, therefore, concluded that the informant Gurjant  Singh (PW-4) as an after thought roped the two remaining  brothers of the respondents alongwith their family friend  Baldev Singh.  It would, thus, appear that the trial court has  not treated witnesses Gurjant Singh (PW-4) and Gurcharan

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Singh (PW-5) as witnesses on whose testimony implicit  reliance could be placed.  However, the trial court relying  upon the testimony of these very witnesses convicted the  respondents herein and sentenced them to death for the murder  of five members of the family.         The respondents herein preferred an appeal before the  High Court which was allowed by the High Court.  In  substance the High Court has held that the presence of   PW-4  Gurjant Singh and PW-5 Gurcharan Singh was doubtful.   Even the other circumstances established by the evidence on  record supported the case of the defence that the instant case  was a case of blind murder not witnessed by anyone, but when  the news about the murders spread in the locality Gurjant  Singh (PW-4) and Gurcharan Singh (PW-5) as well as many  other relatives came in the morning at about 7.00 a.m. and  only thereafter the case was concocted against the  respondents.  In this view of the matter the High Court  allowed the appeal and acquitted the respondents of all the  charges levelled against them.  

       This being an appeal against acquittal we have with the  assistance of counsel for the parties gone through the evidence on  record with a view to find whether the view favourable to the  accused taken by the High Court is based on the evidence on  record and is reasonable.  It is well settled that in an appeal against  acquittal, the appellate court is entitled to re-appreciate the  evidence on record, but having done so it will not interfere with the  order of acquittal unless it finds the view of the court acquitting the  accused to be unreasonable or perverse.   If the view recorded by  the court acquitting the accused is a possible, reasonable view of  the evidence on record, the order of acquittal ought not to be  reversed.   

       The High Court has considered the evidence on record in  detail and recorded its findings, but we propose to consider only  the important findings recorded by the High Court on the basis of  which the order of acquittal has been recorded.   

       As we have noticed earlier the prosecution examined two  witnesses as eye witnesses, namely \026 PW-4 Gurjant Singh and  PW-5 Gurcharan Singh.  Gurjant Singh (PW-4) was a brother of  deceased Mohinder Singh and at the relevant time resided at  Chudhuwala.  Gurcharan Singh (PW-5) was a son of the deceased,  Mohinder Singh and his wife Sujan Kaur.  He was about 7 years of  age at the time of occurrence.  The case of the prosecution is that  in the evening preceding the night of occurrence Gurjant Singh  (PW-4) had come to meet his brother Mohinder Singh at Village  Adamke.  In the night he and Gurcharan Singh (PW-5) slept on  two separate cots on the roof of the house from where courtyard  was visible.  The deceased were sleeping in the courtyard.   According to these two witnesses they witnessed the occurrence  which took place at about midnight.  The High Court has suspected  their presence at the place of occurrence and described them as  chance witnesses.  This is because Gurjant Singh (PW-4) was a  resident of another village while Gurcharan Singh (PW-5) was  studying in a school near village Jhunir where he resided with his  grand-mother Surjit Kaur and Bogha Singh.   

       Gurjant Singh (PW-4) in his evidence admitted that he was  separated from his brother Mohinder Singh.  They were separate in  mess and residence and they separately carried on their agricultural  operations.  He did not give any reason why he came to his brother  who was then staying with his wife and children at the house of his  wife’s grand parents.   This led the High Court to observe that he is  a mere chance witness.  Similarly PW-4 after some hesitation had

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to admit that Gurcharan Singh (PW-5) was residing with his grand- mother Surjit Kaur and Bogha Singh at village Jhunir and was  studying in a school nearby at Fatta Maluka.    However, what is  significant is the fact that the objective findings of the investigating  officer did not support the testimony of PWs. 4 and 5 that they had  slept on the roof on the night of occurrence on two separate cots.   Ext. DA was the sketch plan prepared by the investigating officer  PW-7.  He stated that he had included every relevant feature of  place of occurrence in the rough sketch plan prepared by him.  Ext.  DB is the sketch plan drawn to scale by the draftsman with the  assistance of PWs. 4 and 5.  In both the sketch plans neither a  wooden stair-case nor cots on the roof have been shown.  The  prosecution has failed to explain why the wooden stair-case and  the cots were not shown in the sketch plans prepared by the  investigating officer and later by the draftsman.  The absence of  these things from the sketch plans created a doubt about the  truthfulness of the two eye witnesses.  It also raised a serious doubt  as to whether they slept in the house of Jeon Singh on the night of  occurrence at all.   The High Court noticed the fact that the wooden  stair-case and cots on the roof were not shown in either of the  sketch plans and, therefore, the evidence of the investigating  officer who prepared the rough sketch plan did not support the  evidence of the eye witnesses that on the night of occurrence they  had slept on two separate cots on the roof of the house.  We also  find that the investigating officer who reached the place of  occurrence soon after the report was lodged could not have missed  to notice the wooden stair-case and the two cots if they were really  there, because there was mention of these things in the first  information report itself.          

       The High Court also noticed that the deposition of PW-4  Gurjant Singh is not corroborated by the statement made in the  first information report lodged by him.  The most significant fact is  that while deposing as a witness PW-4 Gurjant Singh involved not  only the three respondents herein, who were named as the  assailants in the first information report, but also implicated three  others, namely the remaining two brothers Teja Singh and  Mohinder Singh and their alleged accomplice Baldev Singh.  The  High Court, therefore, doubted the truthfulness of PW-4 as also  that of PW-5 since he also sought to implicate the remaining  accused for the first time in the course of his deposition.  It is  worth noticing that in the first information report lodged by PW-4  he had named only three assailants of the deceased, namely \026 Ajaib  Singh, Balwinder Singh and Joginder Singh, the respondents  herein.  In a very graphic manner PW-4 described the manner in  which they had assaulted the victims one after the other.  He  expressed his suspicion that all this was done by the three named  accused in connivance with their two other brothers namely \026 Teja  Singh and Mohinder Singh.  This necessarily implies that those  two other brothers were not present at the time of occurrence.  In  the course of deposition, however, PW-4 asserted that there were  six assailants which included all the five brothers and their  associate Baldev Singh.  A similar improvement was made by PW- 5 Gurcharan Singh who had also named only three assailants in the  course of investigation and later sought to implicate three more.   The explanation offered by PW-4 is that out of fear and  nervousness he omitted to name the remaining three accused while  lodging the first information report.  This explanation does not  deserve even a serious consideration because in the first  information report he had mentioned the names of two of the  remaining brothers but with the allegation that what was done by  the respondents was in connivance with them.  Moreover, PWs. 4  and 5 both knew Teja Singh and Mohinder Singh very well, and if  they had really seen them at the time of occurrence they could not  have forgotten to mention their names, particularly when the

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remaining three brothers were specifically named and specific  roles were assigned to them in the occurrence.  These facts lead us  to doubt the truthfulness of the alleged eye witnesses and creates a  serious doubt about their credibility. It cannot be a mere  coincidence that both the witnesses, so well known to the accused,  forgot to name two of the accused, and both forgot the names of  the same persons.  

       The High Court has noticed many inconsistencies between  the evidence of PWs. 4 and 5.  It is not necessary to notice all of  them but we find from the evidence on record that according to   PW.4 he raised an alarm after the occurrence but no one came in  response to the same.  There after the village Chowkidar came at  about 7.00 a.m. and leaving him to guard the dead bodies he went  to police station to lodge a report.   

On the other hand, according to PW-5 he became  unconscious on seeing the occurrence and he re-gained  consciousness only in the morning where he saw his great grand- father Jeon Singh to whom he narrated the incident.  He has also  mentioned the presence of Bogha Singh alongwith Jeon Singh  when he regained consciousness.  PW-4 has not even whispered  about PW-5 becoming unconscious after seeing the occurrence and  remaining as such till 7.00 a.m. in the morning.  If both of them  slept on adjacent cots and had seen the occurrence and one of them  had become unconscious after seeing the occurrence, PW-4 would  have certainly mentioned these facts.  It is surprising that he has  not said a word about PW-4 becoming unconscious after  witnessing the occurrence.  This creates a serious doubt about the  presence of the alleged eye witnesses at the time of occurrence and  it appears from the evidence on record that they may have come to  the place of occurrence in the morning after hearing about the  ghastly crime.  The crime was committed in the dead of night and  was not witnessed by anyone.  Only much later, after word was  sent to the relatives, they assembled at the house of Jeon Singh at  about 7.00 a.m. in the morning which included PWs. 4 and 5.  This  was the plea of defence and this has been accepted by the High  Court.  We find evidence on record to support this conclusion.   Firstly we find it difficult to believe that though the occurrence  took place in the village in the night which was witnessed by PWs.  4 and 5, no one came to the house after they raised alarm, and only  at 7.00 a.m. in the morning the village Chowkidar could be  contacted.  However, even if we do not attach much importance to  this fact the evidence on record clearly indicates that village  Chudhuwala where PW-4 resided is connected by a metalled road  with village Adamke.  PW-4 denied this fact, but the evidence of  the investigating officer PW-7 establishes beyond doubt that there  is a metalled road connecting Adamke with Chudhuwala and the  same can be covered in 7-8 minutes by car and 1 to 1 = hours on  bicycle.  PW-5 was residing at village Jhunir where Surjit Kaur  resided with Bogha Singh.  According to the evidence on record  village Jhunir is also connected with Adamke by a metalled road  and the evidence is that its distance is 5 kms. less than the distance  to village Chudhuwala.  The evidence on record further discloses  that at 7.00 a.m. Jeon Singh, Bogha Singh, PW-4 Gurjant Singh,  PW-5 Gurcharan Singh and Jagjit Singh, another brother of PW-4,  were present in village Adamke.  It was thereafter that Gurjant  Singh (PW-4) left for the police station to lodge a report.  If we are  to believe Gurjant Singh (PW-4) that the whole night they could do  nothing since no one came to the house even on raising alarm, it is  difficult to explain how all these persons from different villages  assembled there at 7.00 a.m. in the morning at about the time when  the Chowkidar came there.  Obviously, therefore, word must have  been sent to relatives in different villages nearby in the night itself,  so that they could reach the place of occurrence at about 7.00 a.m.  

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The explanation of PWs. 4 and 5 that no one from the village came  inspite of their raising alarm and that they kept sitting in the house  till 7 O’ clock in the morning appears to be untrue.             

       It is surprising that Jeon Singh who was admittedly present  in the house where the occurrence took place has not been  examined as a witness.  What is really surprising is that his  statement was not even recorded in the course of investigation.   The High Court has commented on the non-examination of Jeon  Singh who appeared to be a witness who could really unfold the  prosecution case.  Having regard to the facts and circumstances of  the case it appears probable that Jeon Singh who ought to have  been the main target, if the motive alleged was true, had a  miraculous escape, may be because he was sleeping elsewhere and  not in the court-yard.   It also appears probable that after the  occurrence he may have sent word to the relatives who assembled  at his house at about 7.00 a.m. in the morning. Otherwise the  presence of Bogha Singh and Jagjit Singh, brother of PW-4 at the  place of occurrence cannot be explained.  There is force in the  defence plea that PWs. 4 and 5 also came to the village of  occurrence on hearing about the murder of five members of the  family.  In these facts and circumstances we cannot say that the  High Court was not justified in observing that the case appears to  have been concocted after due deliberations and only after large  number of persons had assembled in the morning at the place of  occurrence whereafter PW-4 left for the police station to lodge the  report.  In this connection it is interesting to note that in the first  information report PW-4 Gurjant Singh mentioned in detail the  facts relating to the execution of two wills by Jeon Singh and  details of his holdings etc., which in normal course would not have  been within his knowledge.  He admitted that he had never seen  the will of Jeon Singh.  The mention in such great detail about the  affairs of the family of Jeon Singh in the first information report  leads to an irresistible conclusion that PW-4 Gurjant Singh was  properly briefed before he came to lodge the first information  report.  We do not find any infirmity in the finding of the High  Court that the first information report was lodged after much  deliberation.

       The High Court has also observed that there was  considerable delay in lodging the first information report.  If really  the occurrence had taken place as alleged, there was no reason for  PW-4 to keep sitting in the village till 7.00 a.m. and only thereafter  to start for the police station for lodging the report.  The plea  sought to be urged before us, that in those days the terrorists were  active in the State of Punjab, is unacceptable in the facts of this  case, because PW-4 knew that the assailants were not members of  a terrorist group but were members of the family of his brother’s  wife.

       The High Court has also commented upon the recovery of  weapons allegedly made at the instance of the accused.  It has  noticed the fact that the alleged disclosure statements were not  supported by the evidence of any independent witness and even the  Serologist report did not give any clear opinion about the origin of  the blood allegedly found on the weapons since the blood on the  weapons had disintegrated.  The High Court was also of the  opinion that the motive suggested by the prosecution did not  appear to be a sufficient motive for the respondents to commit such  a ghastly offence.  

       Having carefully appreciated the evidence on record and the  conclusion reached by the High Court we have no hesitation in  holding that the view of the High Court is a reasonable view of the  evidence on record and does not deserve to be interfered with in an

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appeal against acquittal.  The High Court has very meticulously  examined the evidence on record and its findings are fully  supported by evidence.  

       In the result we find no merit in this appeal and the same is  accordingly dismissed.