Hazara Singh & Ors Vs. State of
Punjab  INSC 45 (4 February 1971)
[K. S. HEGDE AND A. N. GROVER, JJ.]
Indian Penal Code, ss. 307, 146, 148 and
349-Miscreants firing shots on police party in darkness-No evidence that shots
were fired in direction of members of police partyOffence of attempt to murder
could not be said to be made out-Firing of such shots is not use of force as
defined in s. 349-Offenders even though more than five do not commit a riot
within meaning of s. 146-Cannot be held guilty of offence under s. 148.
Evidence-Excessive similarity between
evidence of two witnesses-Inference of tutoring can be drawn specially when the
witnesses are clearly not independent.
The six appellants were challenged by a
police party when they were proceeding towards Pakistan territory with
contraband goods. Two of them, H and B, had fire-arms with which they fired
shots. No member of the police party was injured. There was darkness except for
a temporary illumination created by the firing of two shots from a light
pistol. The police claimed to have recognised H and B, in this light even
though they fled away from the scene. The remaining four persons were arrested
,on the spot. H and B, were arrested later and on their pointing out, two unlicensed
arms were recovered. The Sessions Judge held H and B, to be guilty under s. 307
of the Indian Penal Code as well as s. 25 of the Arms Act. The remaining four
appellants were convicted under s. 307 read with s. 149 I.P.C. All the
appellants were convicted under s. 148. The High Court maintained the
convictions of the appellants though in the ,case of those without fire arms it
reduced the sentences., With special leave the appellants filed appeals in this
HELD : (1) From the evidence it was quite
clear that the shots which were fired by H and B, were not fired during the few
seconds there was light as a result of the light pistol shots. In other words
the shots were fired in complete darkness when it was not possible for any
member of police party to see the direction in which they were fired or the aim
which was taken by H and B. It was not possible to say from this evidence that
H and B fired the shots in the direction of the police party or at them and the
possibility that the shots were fired in the air could not be excluded.
Thus the conviction under s.'307 of H and B
and of the other appellants under s. 307 read with s. 149 could not be
maintained.[678 B-D] (2)Rioting is defined by s. 146 which provides that
whenever force or violence is used by an unlawful assembly or any member
thereof in prosecution of the common object of such assembly every member of
such assembly is guilty of the offence of rioting. Section 349 gives the
meaning ,of the word 'force'. In the present incident no force or violence was
proved to have been used by the appellants in prosecution of the common ,object
of the unlawful assembly of which they were members. With the exception of the
firing of the shots in a direction which could not be determined, no attempt
was made by any of the appellants to use any force or 675 violence on any
member of the police party. Accordingly, the conviction of the appellants under
s. 148 must also be set aside. [678 F-G] (3)The discloure statements made by H
and B in respect of fire arms recovered at their instance could not be acted
upon because the two witnesses produced in this connection gave statement which
by their similarity appeared to be tutored and unconvincing. These witnesses
were associated with the police raids over a long period. The other witness was
proved to be inimical to H and B. The High Court erred in ignoring these facts.
The conviction of H and B under s. 25 of the Arms Act could not be sustained.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 139 to 141 of 1968.
Appeals by special leave from the judgments
and orders dated January 31, 1968 of the Punjab and Haryana High Court in
Criminal Appeals Nos. 653, 655 and 654 of 1967 respectively.
R. L. Kohli, for the appellants (in all the
Harbans Singh, for the resondent (in all the
The Judgment of the Court was delivered by
Grover, J.-Hazara Singh, his brothers Bachan Singh and Jamail Singh and three
others Bhajan Singh, Baj Singh and Balwant Singh were tried under S. 148 of the
Indian Penal Code for being members of an unlawful assembly and in prosecution
of the common object of that assembly which was to attempt to murder the police
party, while these persons were armed with deadly weapons Eke pistol and rifle,
having committed the offence on the midnight intervening 21st and 22nd July
1964. Hazara Singh and Bhajan Singh were also charged under s. 307, Indian
Penal Code, while the other four were charged under s. 307 read with S. 149 of
the Code for Hazara Singh and Bhajan Singh having fired pistol shots at the
police party with such intention and under such circumstances that if they had
there by caused the death of any member of the police party they would have
been guilty of murder.
Hazara Singh and Bhajan Singh were further
tried on a charge under S. 25 of the Indian Arms Act. The learned Sessions
Judge found that all the six persons were proceeding towards Pakistan in order
to smuggle six bags containing 40 Kg.
cardamom each. Hazara Singh and Bhajan Singh
were armed with a rifle and a pistol respectively and when challenged by the
police party they fired shots from their weapons at the police party in their
attempt to murder them in pursuance of the common object of them all and as
such they were guilty of an offence under s. 148 of the Indian Penal Code. They
were con676 victed and sentenced to one year's rigorous imprisonment on that
count. Hazara Singh and Bhajan Singh were found guilty of the offence under S.
307 of the Indian Penal Code while their co-accused were found guilty of the
offence under ss. 307 and 149, Indian Penal Code, and each one of them was
sentenced to rigorous imprisonment for a period of five years and payment of a
fine of Rs. 5001. The sentences were to run concurrently. Bhajan Singh and
Hazara Singh were further found guilty of the illegal possession of firearms
under s. 25 of the Arms Act and were sentenced to rigorous imprisonment for one
On appeals to the High Court the conviction
of the aforesaid persons was upheld but the sentences of Bachan Singh, Jarnail
Singh, Baj Singh and Balwant Singh were reduced to three years' rigorous
imprisonment. All the convicted persons have filed appeals to this Court (Cr.
As. 139141/68) by special leave. These shall stand disposed of by this
The prosecution story was that Inderjit Singh
P.W. I who was posted as Deputy Superintendent of Police P.A.P. Border, Khem
Karan, had received information on 31st July 1964 that a party of smugglers
would be smuggling some goods to Pakistan during the night. He organised a
raiding party consisting of Sub-Inspector Ajit Singh P.W. 1,5, Agya Ram P.W.
12, A.S.1s. Darshan Singh, Nand Singh and Mulakh Raj, Head Constables Surjit
Singh P.W. 3, and Ajai Singh P.W. 13.
The entire raiding party was divided into
four groups. Each group was headed by one of the officers including Inderjit
Singh D.S.P. At about midnight the police party noticed some persons coining
from the side of village Lakhna by the katcha path with some mares. The path
led to Pakistan. It was a moonlit night but was cloudy at that time. It is
unnecessary to go into the details which will be presently noticed of how the
firing of the shots took place by the accused persons and how they were
identified and arrested.
Four of them were taken into custody at the
spot but Hazara Singh and Bhajan Singh escaped on their mares' They were
arrested later and on their disclosure a rifle and 'a revolver were recovered.
No one was injured and although some empty cartridges were found but no attempt
was made to find the bullets which are alleged to have been fired by the party
of the appellants.
The evidence of the police officers was
consistent and we may only refer to the deposition of Inderjit Singh D.S.P.
who appeared as P.W. 1 According to him when
the culprits were at a distance of 25 to 30 karams (One karam is equal to 5 67
7 feet) he alerted members of the police party to be on their guard and
directed Sub-Inspector Ajit Singh to challenge the culprits and inform them
that the police party was holding its positions and they should stop proceeding
further. Ajit Singh accordingly challenged the culprits. Thereupon the, leader
of the party fired a shot at the police party.
Inderjit Singh then ordered Sub-Inspector
Agya Ram to fire a light pistol so that there might be light and it might be
possible to identify the culprits. Agya Ram fired a shot and in the light that
emerged the leader of the party was identified as Hazara Singh appellant who
was riding a mare and who had a rifle in his hand. He was followed by Bhajan Singh
or Harbhajan Singh who also was riding a mare and had a loaded, bag and was
armed with pistol. He was followed by the other four on foot. These persons
then shouted to their companions Hazara Singh and Bhajan Singh that they should
open fire on the police party. Thereupon Hazara Singh and' Bhajan Singh started
firing shots from their respective weapons. Sub-Inspector Ajit Singh ordered
the police party to open fire in defence. Four Head Constables fired two shots
each from their rifles at the culprits. At this stage Agya Ram fired another
light pistol shot. Hazara Singh and Bhajan Singh ran away on their mares
throwing away the bags.
The other four persons were found lying down
on the ground.
There can be no manner of doubt that if
Hazara Singh and Bhajan Singh fired shots at the police party and even though
no one was injured the appellants would be guilty of the offences with which
they were charged. The real question is whether it had been proved beyond doubt
that the shots were fired at the police party. There could be two possibilities
in such a situation, one could be of the shots being fired in the direction of
the police party or taking aim at them and the other could be of the shots
being fired in the air or in some other direction and not in the direction of
the police party merely to create confusion for the purpose of running away. On
the evidence of Inderjit Singh P.W. 1 himself it was a moonlit night but owing
to the weather being cloudy it was dark and light pistol shots bad to be fired
by Sub-Inspector Agya Ram on two occasions in order to provide sufficient light
for seeing and identifying them.
The light provided by these pistol shots
admittedly lasted only for 2 or 2 1/2 seconds. If the shots which are alleged
to have been fired by Hazara Singh and Bhajan Singh had been fired,at the time
when there was light as a result of the firing of the light pistol shots by
Sub-Inspector Agya Ram then it could be said to have been established that the
Deputy Superintendent of Police and the other witnesses could have seen in
which direction the fire arms were fired by Hazara Singh and 678 Bhajan Singh
and their statement could have been accepted that ,the shots had been fired at
them. But from the evidence of Inderjit Singh as also of Sub-Inspector Agya Ram
who actually fired the light pistol shots which provided the light on two
occasions it is quite clear that the shots which were fired by Hazara Singh and
Bhajan Singh were not fired during the few seconds there was light as a result
of the light pistol shots of Agya Ram.In other words the shots which are stated
to have been fired by the aforesaid two appellants were fired in complete
darkness when it was not possible for any member of the police party to see the
direction in which they were fired or the aim which was taken by Hazara Singh
and Bhajan Singh. It is not possible to say from this evidence that Hazara
Singh and Bhajan Singh fired the shots in the direction of the police party or
at them, and the possibility that the shots were fired in the air cannot be
excluded. Thus the conviction under S. 307 of Hazara Singh and Bhajan Singh and
of the other appellants under s. 307 read with s. 149, Indian Penal Code cannot
be maintained and they must' be acquitted of that charge. It is unfortunate
that the judgment of the High Court' is very sketchy and there is hardly any
discussion or examination of all the above material facts.
As regards, the conviction of the appellants
under S. 148 of the Indian Penal Code we find it difficult to uphold the same.
According to that section whoever is guilty of rioting being armed with deadly
weapons or with anything which used as a weapon of offence, is likely to cause
death, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both. Rioting is defined
by s. 146 which provides that whenever force or violence is used by an unlawful
assembly or any member thereof in prosecution of the common object of such
assembly every member of such assembly is guilty of the offence of rioting.
Section 349 gives the meaning of the word "force". The learned
counsel for the State has not been able to show how any force or violence is
proved to have been used by the appellants in prosecution of the common object
of the unlawful assembly of which they were members. With the exception of the
firing of the shots in a direction which cannot be determined no attempt was
made by any of the appellants to use any force or violence on any member of the
police party. Consequently the conviction of the appellants under s. 148 must
also be set aside.
As regards the conviction of Hazara Singh and
Bhajan Singh under s. 25 of the Indian Arms Act it is most unfortunate that the
witnesses who were produced with regard to the disclosure statements made by
them and the recoveries effected at their 6 7 9 instance are of such a type
that their evidence could never have been believed by any court. Lal Singh P.W.
and Karnail Singh P.W. admitted that they had been joining in the police raids
and had been appearing as witnesses for the police for the last 15 years. Apart
from that the statements made by them were so similar particularly with regard
'to the manner in which they happened to join the investigation that their
whole evidence looks tutored and unconvincing. P.W.11 Hakam Singh admitted that
Pooran Singh was the son of his cousin Geja Singh and that he had been
convicted-in a case of murder and sentenced to life imprisonment. Charan Singh,
uncle of the two appellants had appeared as a witness against Pooran Singh in
that case. He was obviously an inimical witness. It is again surprising that
the High Court in its very sketchy judgment had made-no mention of these
salient facts and has contended itself by saying that there was nothing on the
record to indicate that the appellants had been falsely implicated. The conviction
of Hazara Singh and Bhajan Singh, therefore, cannot be maintained under s. 25 of
the Arms Act.
In the, result the appeals are allowed and the
convictions and sentences of all the appellants are hereby set aside.
The bail bonds of the appellants who were ordered
to be released on bail by this Court on July 15, 1968 shall stand discharged.