& Ors Vs. State of Haryana  INSC 1427 (8 November 1996)
Anand, K.T. Thomas Thomas J.
Singh, a young wrestler, was murdered around noon on 19.12.1985. Two of his associates were also injured in the episode.
Police challaned the four appellants before us for the murder of Anup Singh and
for causing hurt to his associates. As the weapon used was a knife and as the
place of incident was within the notified area under The Terrorist and
Disruptive Activities (Prevention) Act) 1987 ('TADA' Act for short), the case
was tried by a Designated
under section 9 of the TADA Act. All the four appellants were convicted first
appellant under section 302 and 324 of the Indian Penal Code and the remaining
appellants under those offences with the aid of section 34 of the Indian Penal
Code. Each of them was sentenced to imprisonment for life under the first count
and to rigorous imprisonment for three years under the second count. The first
appellant was further charged with section 25 of the Arms Act 1959 read with
section 6 of the TADA Act but he was acquitted of that offence. Appellants have
preferred this appeal under section 19 of the TADA Act.
story: On the previous day of murder of Anup Singh, an encounter took place
between him and first appellant - Yudhvir. On this account, first appellant was
harbouring a ruse towards the deceased. On the occurrence day, deceased Anup
Singh and his associates (PW1 and PW2) travelled in a bus in which the four appellants
also travelled and they all alighted at Rohtak bus stand. First appellant - Yudhvir
told his associates that he would take revenge on the deceased for the previous
day's incident. He then whipped out a knife from his pocket and aimed a blow at
the deceased but it was warded off by him. Fourth appellant - Rajinder, who
reached there in the meantime, dealt a blow on the deceased with a hockey
stick. At that stage, second appellant (Rambir) and third appellant (Bijender)
caught hold of the deceased by his hands from both sides. First appellant then
inflicted a stab injury on the chest of the deceased. When PW1 and PW2 made a
bid to rescue him, first appellant attacked them also with the knife and
consequently, they too sustained injuries. By then, other people rushed up to
the rescue of the victims and the assailants thereupon took to their heels. All
the injured were taken to the Medical College Hospital Rohtak but Anup Singh
succumbed to the injuries on the same day.
information regarding the incident was the statement of PW1 recorded by the
police. All the four appellants were arrested on different dates, and on the
strength of the information elicited from the first appellant a knife was
recovered by the police. after completing the investigation, final report as
laid against all of them.
the trial PW1 and PW2 spoke to the occurrence in accordance with the
prosecution case. When the appellants were examined under section 313 of the
Code of Criminal Procedure, first appellant stated that he was attacked by the
deceased Anup Singh and his friends in retaliation for what he did to the
deceased on the previous day. Involvement of the remaining appellants in the
incident was totally repudiated by all of them.
Judge of the Designated
Court accepted the
evidence of PW1 and PW2 and held that prosecution succeeded in proving the case
against the appellants. Accordingly, they were convicted and sentenced as
Kumar, learned Senior Counsel who argued for appellants 2 to 4 contended that those appellants were falsely implicated in
the case and alternatively contended that no common intention as envisaged in
section 34 of the IPC could be fastened on them.
first information statement, associates cf first appellant were described as Gogi
s/o Ishwar Singh, Ramkiran Pandit and Jailal @ Jaila Pahalwan. Appellants have
disowned such names and they contended that in the final report laid by the
police they were described with those names added to their real names just to
make it appear that they have such names also. In this context, it is pertinent
to note that in the inquest report, the name of first appellant alone was
mentioned and his companions were indicated by the residuary words
"etc". Learned Senior Counsel contended that if the FIR had really
come into existence before inquest was held, there was no reason to skip the
names of the three appellants in the inquest report.
closer scrutiny of the evidence we are persuaded to attach much weight to the
aforesaid contention. Non- mention of the FIR number in the inquest report is
conspicuous therefrom for which PW 9 (Sub-Inspector who held the inquest) could
not give any explanation whatsoever. On the other hand, he admitted in
cross-examination that he prepared inquest report first and the FIR was
recorded next which, of course, at a later stage he tried to make amends.
what he said first on that score seems to be disclosure of the actual sequence
of what really happened. At no place in the inquest report, the name of anyone
of the assailants (other than the first appellant) was indicated and at all
places where the remaining assailants were to be referred to the author of the
report employed the abbreviation "etc." This lacuna was later
replenished in the FIR by using names of three more assailants which names the
appellants have disowned now.
apart, the role attributed to the four appellants - that one of them blow with
a hockey stick on the deceased - has been prevaricated by the two eye witnesses
examined in Court. As the post-mortem report showed no corresponding injury on
the head of the deceased, PW 1 and PW2 said during trial that they were not
sure whether the strike given by A- 4 had fallen on the head of the deceased.
Again, as we noticed some of the anti-mortem injuries sustained by the
deceased, We find it difficult to believe that second and third appellants
would have held the deceased's hands while first appellant was inflicting blows
on the deceased with a knife. Deceased had an incised tailing wound on the
anterior aspect of the left upper arm, incised wounds on the right thumb, right
index finger, left ring finger and also on left middle finger and an abrasion
3x2 cm. on left upper arm with infilteration of blood. It is highly improbable
that deceased could have sustained those injuries if both of his arms were held
in the firm grip of anyone else.
not satisfied from the prosecution evidence that appellants 2 to 4 would have
done the act attributed to them. We are therefore, unable to sustain their
conviction and sentence.
first appellant- Yudhvir, the position is entirely different. He admitted his
presence at the scene of occurrence; he also admitted that there was an
encounter on the previous day between him and the deceased. According to him
while he was travelling in the bus) deceased Anup Singh and his associates (PW1
and PW2) tried to drag him out of the bus and when he got down he was assaulted
by them and consequently he fell down. Of course, he did not say as to what
Anup Singh sustained, apart from the incised injuries adverted to above, a very
serious spindle shaped incised wound on the chest which had fractured a rib and
pierced into the paracardium and also the ventricle. The other incised wounds
on his fingers and upper arms could have been the consequence of warding off
the blows with sharp weapon. PW 1 in the same episode sustained a muscle deep
incised wound 5x1 cm. on the left bottocks. PW2 sustained a stab wound on his
left thigh. Those two witnesses have said that they and the deceased were
stabbed by the first appellant with a knife. We have no difficulty in believing
their version that it was the first appellant who inflicted the injuries on the
deceased as well as on PW1 and PW2.
then the question is, who was the aggressor in the incident. In this context,
we may point out that the conductor of the bus (Mahabir) was cited by the
police as a witness to the occurrence but the Public Prosecutor did not examine
him merely on the ground that such examination was not necessary. The
prosecution has, therefore, now to depend upon the testimony of the injured
witnesses for establishing that first appellant was the aggressor.
Non-examination of Mahabir, according to us, has badly damaged the prosecution
case with regard to the commencing part of the occurrence.
now refer to the fact that first appellant also sustained some injuries and he
too was admitted in the same hospital on the same day (almost at the same time)
as the deceased and the other injured were admitted. Of course, those injuries
on the first appellant were simple, but in the circumstances, we cannot
overlook those injuries altogother. We are, therefore, not inclined to rule out
the case of first appellant that he was first attacked by the deceased in the
company of his associates PW1 and PW2.
first appellant would have had initial right of private defence. But he had
clearly exceeded his right by inflicting fatal injuries to the deceased with a
lethal weapon. In this view of the matters first appellant is liable to be
convicted only under section 304 (part I) of the Indian Penal Code and not
under section 302, IPC.
matter of sentence, Sri U.R. Lalit, learned Senior Counsel who argued for first
appellant invited our attention to certain mitigating circumstances. One is
that, first appellant was below the age of 21 when the incident happened;
second is that he was pitted against three persons, two of whom were wrestlers.
Learned Senior Counsel further pointed out that during the pre-trial period as
well as post conviction period, first appellant has undergone imprisonment for
a few years in connection with this case.
persuaded to take such circumstances into account while fixing the quantum of
sentence to be awarded to him.
result, we set aside the conviction and sentence passed on appellants 2 to 4
and acquit them. We alter the conviction of first appellant to section 304 (PartI)
of the Indian Penal Code and sentence him to rigorous imprisonment for-the
period he has already undergone in connection with this case. the bail-bonds
executed by the appellant would stand discharged.