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CASE NO.: Appeal (crl.) 287  of  1997

PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: JUGRAJ SINGH & ORS.

DATE OF JUDGMENT:       14/02/2002

BENCH: R.P. Sethi & K.G. Balakrishnan

JUDGMENT:

(With Cr.A.No.288/97) J U G M E N T

SETHI,J.

       Both the appeals have been filed against the judgment of the High Court of Punjab an d Haryana by which the judgment of the trial court, convicting the respondents, was set asid e and they were acquitted of the charge of murder and for offences under the Arms Act.  The  High Court is alleged to have adopted an erroneous approach in appreciating the facts and th e points of law involved in the case.  The conclusions arrived at by the High Court are stat ed to be based on surmises and conjectures rather than on facts and circumstances of the cas e.  The prosecution is stated to have proved the case against the respondents beyond all rea sonable doubts.  The High Court is shown to have committed a mistake of law by substituting   its opinion for the opinion of the medical expert and then discarding  the testimony of the  two eye-witnesses of the occurrence.         The facts of the case reflect the horrifying situation prevalent in the country wher e the prosecution witnesses and their  relations incur the risk of      lives and sometimes  actually lose their lives for deposing truth in a court of law.  Two unfortunate sons of Jag dip Singh, namely, Gurtej Singh aged 22 years and Soudagar Singh aged 24 years had to pay th e price by losing their lives for the fault of their father having appeared as a witness aga inst the respondents herein in a case in which Jugraj Singh, respondent and his companions h ad been convicted for the offence of murder and sentenced to life imprisonment.  Though the  enmity between the parties was not disputed and the homicidal death of Gurtej Singh and Soda gar Singh proved beyond doubt, yet the High Court, adopting hyper-technical      approach, a cquitted the accused vide the judgment impugned in these appeals.         The relevant facts for the purposes of deciding these appeals are that on 23rd Octob er, 1989 Hardip Singh (PW2), his nephews Gurtej Singh (deceased), Sodagar Singh (deceased) a nd Sarabjit Singh (PW 3) had gone to work in their field known as Bangiwala field.  At about  5 p.m. when they were planning to return back to their houses, the respondents Jugraj Singh , armed with a Double Barrel Gun, Narinder Singh @ Naginder Singh, armed with another Double  Barrel Gun and Avtar Singh, armed with Gandasa (a sharp edged weapon) came out from the adj oining fields.  Jugraj Singh raised a Lalkara that sons of Jagdip Singh (who had appeared as  a witness in a murder case against him) should not go alive.  He fired a shot from his gun  which hit Gurtej Singh on his head.  Narinder Singh fired another shot which hit Sodagar Sin gh in the head near the left eye.  Both Gurtej Singh and Sodagar Singh fell on the ground.   Jugraj Singh and Narinder Singh thereafter fired one more short each aiming at their targets .  Avtar Singh gave Gandasa blow to Gurtej Singh.  Hardip Singh (PW2) and Sarabjit Singh (PW 3) who raised a hue and cry were fired at by Jugraj Singh and Narinder Singh from their arme d weapons.      Both the witnesses ran away from the place of occurrence and while they were  running, they heard the sound of two more fire shots.  Hardip Singh reached home and narrat ed the occurrence to his uncle Amar Singh and the women folk of the family.  Hardip Singh an

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d Amar Singh thereafter went to Police Station Raman which was about 7 kilometers from the p lace of occurrence and lodged the First Information Report, Exh.PJ.  Hardip Singh (PW2) alon g with ASI Jangir Singh and other police officials reached the spot where the inquest report  was prepared and other formalities completed.  The seized articles including turban of Gurt ej Singh which had corresponding holes of pellets.      All the articles recovered from the  place of occurrence were taken into possession vide Memo Exh.PR.  The accused were not trace able and were arrested only on 25th October, 1989.  One Double Barrel Gun was recovered from  Narinder Singh which was taken into possession vide Memo Exhibit PU.  Jugraj Singh responde nt made a disclosure statement regarding the possession of the gun and cartridges which was  consequently recovered and sealed.      On the disclosure statement made by Avtar Singh, the  Gandasa was recovered.  On completion of the investigation a charge-sheet was filed against  the accused persons in the Court of Additional Sessions Judge, Bhatinda.  They pleaded not  guilty and after completion of trial, the trial court convicted the respondents under Sectio n 302/34 IPC and Sections 25 and 30 of the Arms Act and sentenced them to life imprisonment  for the main offence.  In appeal filed by the respondents before the High Court, the judgmen t of the trial court was set aside and the respondents acquitted of the charges.  Not satisf ied with the acquittal of the respondents, the State has preferred Criminal Appeal No.287 of  1997 and Hardip Singh (PW2) has filed Criminal Appeal No.288 of 1997.         We have heard the learned counsel for the parties and perused the record.         Learned counsel appearing for the respondents have submitted that the finding of fac ts arrived at by the High Court cannot be disturbed by this Court in exercise of powers unde r Article 136 of the Constitution of India.  It is contended that if two views of an occurre nce are possible, the view taken by one of the courts which is favourable to the accused sho uld be given credence.  It is further submitted that as there was no independent legally adm issible evidence against the respondents, the High Court was justified in acquitting the acc used-respondents.  Shri Inderbir Singh Alag, learned counsel appearing for the State submitt ed that the judgment of the High Court acquitting the accused is based upon erroneous facts  and against the settled position of law.  Besides being based upon conjectures and surmises,  the impugned judgment is stated to be against the weight of evidence produced by the prosec ution which was properly appreciated by the trial court while convicting and sentencing the  respondents.         It is now well established that this Court does not, by special leave, convert itsel f into a court to review evidence for a third time.      However, where the High Court is sh own to have failed in appreciating the true effect and material change in the version given  by the witnesses, in such a situation it would not be right for this Court to affirm such a  decision when it occasions a failure of justice.  The power under Article 136 of the Constit ution of India is, no doubt, extraordinary in amplitude and this Court goes into action only  to avert miscarriage of justice if the existence of perversity is shown in the impugned jud gment.  Unless some serious infirmity or grave failure of justice is shown, this Court norma lly refrains from re-appreciating the matter on appeal by special leave.  The findings of th e High Court have to be judged by the yardstick of reason to ascertain whether such findings  were erroneous, perverse and resulted in miscarriage of justice.  If the conclusions of the  courts below can be supported by acceptable evidence, the Supreme Court will not exercise i ts overriding powers to interfere with such a decision.         In Pritam Singh v.The State [AIR 1950 SC 169] it was held that special leave to appe al can be granted only if it is shown that exceptional and special circumstances exist that   substantial and grave injustice has been done and the case in question presents features of  sufficient gravity to warrant a review of the decision appealed against.  In Sadhu Singh Ha rnam Singh v. The State of Pepsu [AIR 1954 SC 271] this Court observed that it is well estab lished that this Court does not, by special leave, convert itself into a court of review to  review evidence for a third time.  But where, however, the court below is shown to have fail ed in appreciating the true effect of material change in the version given by the witnesses,  it would be right for this Court to interfere to avert the failure of justice.         This Court in State of Jammu & Kashmir v. Hazara Singh & Anr. [AIR 1981 SC 451 held: "It is well settled that in appeal by special leave under Article 136 of the Constitution, a gainst an order of acquittal passed by the High Court, this Court does not normally interfer e with a finding of fact based on appreciation of evidence, unless the approach of the High  Court is clearly erroneous, perverse or improper or there has been a grave miscarriage of ju stice."

       In this case the prosecution had produced Hardip Singh (PW2) and Sarabjit Singh (PW3 ) who claimed to be eye-witnesses of the occurrence.  Dr.Tirath Singh (PW1), who conducted t he post-mortem of Gurtej Singh found a number of injuries including the fractured right pari etal bone.      In his opinion the death was due to shock and haemorrhage  as a result of an

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te-mortem injuries which were sufficient to cause death in the ordinary course of nature.  H e further opined that Injury No.1 should be the result of blunt side of Gansdasa and the lac erated wound over lying it could be the result of a fire arm.  Injury No.2 could be the resu lt of a grazing by a fire arm bullet/pellets.  He also conducted the post-mortem examination  on the body of Sodagar Singh and found a number of injuries.  The cause of death was stated  to be shock and haemorrhage as a result of ante-mortem injuries which were found to be suff icient to cause death in the ordinary course of circumstances.  Injuries 4, 5, 6 and 7 were  stated to be the result of the fire arm.  Injuries 1 and 2 could be the result of blunt weap on.      Injury No.6 was stated to be the wound of entry and the injury No.7 was the wound o f exit.  Injury No.6 was individually sufficient to cause death.  Injury Nos.4 and 6 each in dividually were sufficient to cause the death.  Jangir Singh (PW4), ASI recorded the FIR on  23rd October, 1989 at 8 p.m. He went to the spot and reached the house of the accused for ar resting them but the accused were not traceable.  Blood stained earth, turban of Gurtej Sing h, pair of shoes of Gurtej Singh, Parna (towl) lying near the dead body of Sodagar Singh, fo otwear, Khais, tyre and tube of tractor, wads and pieces of turban were seized by him vide S eizure Memo prepared on the spot.  The accused were arrested on 25th October, 1989 from outs ide the court premises, Bhatinda. Disclosure statements of Jugraj Singh and Narinder Singh w ere recorded and consequently the guns were recovered.  Similarly, after the disclosure stat ement of Avtar Singh, the Gandasa, weapon of offence was also seized.  It is mentioned in th e Seizure Memo that the guns seized were not in a working condition.  The witness did not se nd the guns to ballistic expert for comparison because he did not think it proper to do so.         Major Singh (PW5) has stated that he was posted as SHO  at Police Station Raman on 2 5th October, 1989 when he arrested the accused persons.  At the time of arrest Narinder Sing h, respondent-accused was armed with a Double Barrel Gun for which he was not holding any li cence.  The gun was seized vide Exh. PU.  Baldev Singh, Head Constable (PW6) has submitted t hat ASI Jangir Singh had deposited with him the case property.         On appreciation of evidence, the trial court found that it was admitted case of the  parties that the occurrence had taken place at about 5 p.m., of which  the FIR was lodged by  Hardip Singh at Police Station Raman, located at a distance of 7 kms. from the place of occ urrence at about 8 p.m.  The Special Report was received by the Ilaqa Magistrate on the same  night at 11 p.m.  The prompt lodging of the FIR stood established which minimised the possi bility of improvements and strengthened the facts stated therein.  The names of the responde nts and the name of the other witness Sarabjit Singh was specifically mentioned in the FIR.   He held: "I also find that the entire prosecution version find specific mention in the body of the FI R lodged so promptly and the same reached to the Magistrate concerned within three hours of  the time when the report was lodged.  The version of the prosecution case as incorporated in  the FIR has been consistently stuck by both the eye witnesses at trial.

......I also find that the version put forward by the witnesses who gave the ocular account  of the occurrence is consistent with the injuries noted in the post mortem reports and medic al evidence of Dr.Tirath goyal and their statements do fit in with the medical evidence on r ecord.  The incident of firing upon the deceased had taken place in broad day light at about  5 or 5.30 p.m. and such an incident had been witnessed by two prosecution witnesses namely  Hardip Singh and Sarabjit Singh from the close quarters and their evidence substantially tal lies with the medical evidence on record.  In view of such direct evidence when eye witnesse s of the firing being available on record some inconsistency relating to the distance from w hich gun shots were fired between the parties of medical experts and eye witnesses would be  of no significance whatsoever and in this regard reasoning of mine is also supported by law  Karnaial Singh vs. State of Punjab AIR 1971 SC 2119.  I am clearly of the view that the pros ecution evidence pertaining to the assault by guns and gandasa substantially fits in with th e medical evidence on record.  The cross-examination conducted on both the eye-witnesses in  no way causes any doubt in the prosecution version and even during the course of cross-exami nation of both the witnesses nothing of importance could be elicited against the prosecution ."

The findings arrived at by the trial court are based upon the ocular testimony of the eye-wi tnesses which is supported by the medical evidence.      The existence of motive also stood  established.         The High Court found that the oral evidence of Hardip Singh (PW2) and Sarabjit Singh  (PW3) was not consistent with the medical evidence which was sufficient to hold that they w ere not the eye-witnesses of the occurrence and were got up witnesses.  Despite the expert o pinion that the injuries found on the person of the deceased were gun shot injuries and the  injuries caused by sharp edged and blunt weapon, the High Court plunged into the exercise of

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finding out as to whether the aforesaid injuries could be caused by gun shots.  Keeping in  mind the distance between the accused and the victim, as stated by the eye-witnesses, the co urt held that there was no blackening, tattooing or collar of abrasion or charring on the in juries found on the person of the deceased, they could not have received such gun shot injur ies from the distance as detailed by the eye-witnesses.  The court found that as in the post -mortem report Exh.PA it was not mentioned that the injuries found on the person of the dece ased were caused by fire arm, the Doctor was not justified to state in the court that the in juries found on the person of the deceased were gun shot injuries.  The High Court did not r ely on the statement of the doctor and arrived at its own conclusions.  The High Court disbe lieved the eye-witnesses on finding a number of injuries on the person of the deceased on ac count of  the fact that the eye-witnesses were held to have stated the firing of only two gu n shots.         The finding of the High Court in this regard cannot be justified.  The High Court co uld not substitute its own opinion for the opinion of the expert who had categorically state d that the injuries received by the deceased were the gun shot injuries.  The statements of  the eye-witnesses have not been properly appreciated.  Hardip Singh (PW2) had categorically  stated that the respondents-accused armed with Double Barrel Guns and the Gandasa had  come  on the spot.  Jugraj Singh, accused raised Lalkara that sons of Jagdip Singh should not go a live.  Jugraj Singh fired a shot hitting Gurtej Singh on the head, Narinder fired a shot hit ting Sodagar Singh in the head near the left eye.  Jugtar Singh fired another shot from his  gun at Gurtej Singh and Narinder Singh fired another shot on Sodagar Singh from his gun.  Th ereafter shots were fired upon the witnesses and when they were running away, the sounds of  two more fire shots were heard.  Nothing could be spelt out from their cross-examination whi ch could weaken the testimony of aforesaid two witnesses regarding the firing of a number of  shots at the time of occurrence.  It is to be kept in mind that the shots were fired from t he Double Barrel Gun and the cartridges recovered show that the firing would have sprayed th e pellets all around.  In such a situation it could not be ruled out that the deceased could  have received more than one or two injuries.  As the witnesses had run away from the spot t o save their lives, they could not state as to what happened to the deceased after they were  forced to leave the place of occurrence. The testimony of the witnesses could not be  disca rded only on the ground that they happened to be the relations of the deceased.  Under the c ircumstances of the case PWs 2 and 3 were proved to be natural witnesses.         There was, therefore, no justification for the High Court to not accept the testimon y of the eye-witnesses and reject the same on the ground of there being contradictions betwe en their testimony and the conclusion arrived at by the High Court regarding the injuries su stained by the deceased.  The High Court held: "In the present case, as noticed above, evidence of the eye-witnesses Hardip Singh and Sarab jit Singh is wholly inconsistent with the medical evidence and, therefore, it is difficult t o accept them as eye witnesses to the occurrence and thus, it would not be safe to base the  conviction on the evidence of such witnesses.  Even otherwise, it is evident from the record  that the alleged eye witnesses had an old enmity with the accused and this, there was a mot ive for them to falsely implicate the accused.  There is no other evidence to support the pr osecution case."

       We have critically perused the statements of the aforesaid two eye-witnesses and the  statement of Dr.Tirath Singh (PW1) and did not find any inconsistency in their depositions.   We are further satisfied that the statements of the eye-witnesses stand corroborated by th e medical evidence.      We have no doubt in our mind that the accused-persons are responsib le for causing the death of the deceased persons.  The prompt lodging of the FIR and its des patch to the Magistrate has further strengthened our belief that there was no possibility of  either wrong person being impleaded as accused or persons who have not seen the occurrence   produced as eye-witnesses.  The finding of the High Court, being contrary to the legal evid ence, is perverse and cannot be sustained.         To justify the opinion of the High Court, learned counsel for the respondents-accuse d argued that as the doctor had not made a mention of gun shot injuries in the post-mortem r eport, his later deposition before the police regarding the nature of the injuries should no t be accepted.  We cannot accept such a plea either legally or factually.  There is no oblig ation on the doctor to describe the origin or cause of the injuries in the post-mortem repor t as he stated in his deposition in the court.  Otherwise also we find that a mention of fir e arm injury is factually made in one of the columns of the post-mortem report.  It is furth er contended that as the doctor had stated that "due to putrefaction the normal anaomy of ti ssues is disturbed, so collar of abrasion showing two zones of inner grease and outer of abr asions was not possible for me to distinguish", the medical report could not be relied upon.   In support of his contention, the learned counsel has referred to Modi’s Medical Jurisprud

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ence & Toxicology - Twenty-second Edition where it is stated that putrefaction follows the d isappearance of the rigor mortis, and that as the rigor mortis was present, putrefaction cou ld not have been noticed by the doctor.  We have perused the opinion of the learned Author a nd find that in the same heading "Putrefaction of Decomposition and Autolysis" it is stated  that "putrefaction follows the disappearance of the rigor mortis, but this is not always the  case; since, in northern India, especially during the hot months from April to October, it  commences before rigor mortis has completely passed off from the lower extremities".  It is  not disputed that the occurrence had taken place in northern India during the period, referr ed to by the learned Author.         Pointing out to another defect of not sending the weapon of offence, the guns, to th e ballistic expert for examination for his expert opinion, it is argued that the creditworth iness of the case is totally demolished entitling the respondents the benefit of acquittal.   In support of his contention, the learned counsel relied upon a judgment of this Court in S ukhwant Singh v. State of Punjab [1995 (3) SCC 367] wherein it is held that: "There is yet another infirmity in this case.  We find that whereas an empty had been recove red by PW6, ASI Raghubir Singh from the spot and a pistol along with some cartridges were se ized from the possession of the appellant at the time of his arrest, yet the prosecution, fo r reasons best known to it, did not send the recovered empty and seized pistol to the ballis tic expert for examination and expert opinion.  Comparison could have provided link evidence  between the crime and the accused.      This again is an omission on the part of the prosec ution for which no explanation has been furnished either in the trial court or before us.  I t hardly needs to be emphasised that in cases where injuries are caused by firearms, the opi nion of the ballistic expert is of a considerable importance where both the firearm and the  crime cartridge are recovered during the investigation to connect an accused with the crime.   Failure to produce the expert opinion before the trial court in such cases affects the cre ditworthiness of the prosecution case to a great extent."

In that case the evidence of the two eye-witnesses was held inadmissible as they were not ex amined in terms of Section 138 of the Evidence Act and the court did not rely upon the sole  testimony of Gurmej Singh (PW3).  In that context the court observed that failure to produce  the expert opinion affected the creditworthiness of the prosecution case to a great extent.   Nowhere it was held that on account of failure to produce the expert opinion the prosecuti on version in all cases should be disbelieved.         In the instant case the investigating officer has categorically stated that guns sei zed were not in a working condition and he, in his discretion, found that no purpose would b e served for sending the same to the ballistic expert for his opinion.  No further question  was put to the investigating officer in cross-examination to find out whether despite the gu ns being defective the fire pin was in order or not.  In the presence of convincing evidence  of two eye-witnesses and other attending circumstances we do not find that the non-examinat ion of the expert in this case has, in any away, affected the creditworthiness of the versio n put forth by the eye-witnesses.         As we find that the impugned judgment is based upon conjectures and hypothesis and t he High Court has wrongly ignored the evidence of eye-witnesses, the conclusions arrived by  it are erroneous both on facts and on law.  We find it a fit case in which, upon review of t he judgment and in the light of legal position, the impugned judgment deserves to be set asi de.         Accordingly the appeals are allowed by setting aside the impugned judgment of the Hi gh Court and upholding the judgment of the trial court by which respondents were convicted a nd sentenced for the commission of offences punishable under Section 302/34 IPC and Sections  25 and 30 of the Arms Act.      The bail bonds furnished by the respondents shall stand can celled and they shall be taken in custody forthwith for undergoing the remaining part of the ir sentences awarded to them.

                                               ...........................J.                                                 (R.P. Sethi)

                                               ...........................J.                                                 (K.G. Balakrishnan)

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February 14, 2002