Singh, Suba Singh Vs. Harbhej Singh & Ors  INSC 1459 (20 November 1996)
Mukherjee, S.P. Kurdukar S.P. Kurdukar, J.
APPEAL NO 558 OF 1988
two Criminal Appeals on obtaining Special Leave have been filed by the
appellants challenging the legality and correctness of the judgment and order
of acquittal dated January
28, 1988 passed by the
Punjab and Haryana High Court at Chandigarh.
The prosecution had put in the challan before the Judge, Special Court Firozepur
on 14.8.1985 for trial of six accused respondents herein on the following
allegations:- Baldev Singh (since deceased was the younger brother of Hardev
Singh (P.W.2) and Jaswant Singh (P.W.1). Harbhej Singh (A-3) and Gurmej Singh
(A-4), the respondents herein, are the real brothers wheres Sohan Singh (A-5)
and Mohan Singh (A-6), the respondents herein, are the real brothers.
house of Harbhej Singh (A-1) is situated adjoining the house of Hardev Singh
(P.W.2). Harbhej Singh (A-1) and Sohan Singh (A-5) are cousins. Suba Singh, the
appellant in Criminal Appeal No. 558 of 1988 is the son of Harbhajan Singh
(since deceased), whereas Criminal Appeal No. 557 of 1988 is filed by Hardev
Singh, the brother of Baldev Singh(since deceased).
is alleged by the prosecution that Hardev Singh (P.W.2) was doing some
construction work at his house. On 23rd May, 1985 at about 7.30 p.m when he was
sitting in his house alongwith Jaswant Singh and their father Chanan Singh, Harbhajan
Singh (since deceased and Suba Singh (P.W.3) came to his house with a view to
help him in the construction work. At that time all the accused persons armed
with deadly weapons reached the house of Hardev Singh (P.W.2). Harbhej Singh
(a-1) was armed with a .12 bore double barrel gun.
Singh (A-2) with a Gandhali, Sohan Singh (A-5) with a Kirpan, and Amrik Singh
(A-3), Gurmej Singh (A-4) and Mohan Singh (A-6) were carrying Gandasas with
them. They trespassed into the house of Hardev Singh (P.W.2) and a lalkara was
given to teach a lesson to him and others for causing injuries to Harbhej Singh
(A-1). Immediately all these accused persons started assaulting Suba Singh
(PW.3) on his chest. In the meantime Harbhej Singh (A-1) fired a shot from his
gun hitting on the right dorsal and the pitarm of Harbhajan Singh causing a
bleeding injury upon which he fell down. Amrik Singh (A-2) then inflicted blows
from the sharp side of the gandasa on his shoulder and right (A-3) gave a gandasa
blow from its sharp side on his right thigh;
Singh (a-6) did not lag behind and also gave a gandasa blow on his right ankle.
Harbhej Singh (A-1) fired one more shot from his gun but it did not hit
anybody. A roula was raised whereupon all the accused persons fled away with
Coming to the second part of the incident of the same transaction, it is
alleged by the prosecution that when the accused persons were running away they
raised a lalkara to finish Baldev Singh. Apprehending danger to the life of Baldev
Singh, Hardev Singh (P.W.2) and Jaswant Singh hurriedly went in the direction
where Baldev Singh had gone to take fodder, to inform him about the first
incident and also to caution him. At that point of time Baldev Singh was coming
back after taking fodder in the tractor trolley. When he reached in front of
the house of A-1, he was surrounded by the accused persons. Baldev Singh
stopped the tractor and tried to escape from the back side of the trolley but
in the meantime Sohan Singh (A-5) gave a kirpan blow chopping off his right
arm. He fell on the barseen fodder lying in the trolley. Harbhej Singh (A-1)
raised an alarm whereupon Amrik Singh (A-3) climbed upon the trolley and
chopped off hi leg with a gandasa whereas Gurmej Singh (A-3) gave two three
blows with a gandasa on his left arm. Mohan Singh (A-6) also gave a gandasa
blow from its sharp side on his chest. Due to murderous assault Baldev Singh
fell in the trolley with bleeding injuries.
Singh (P.W.2) then contacted Rajinder Singh, the Sarpanch and informed him about
the assault on Harbhajan Singh, Baldev Singh and Suba Singh. The three injured
persons were then taken to the hospital in a trolley. The two injured persons,
namely, Harbhajan Singh and Baldev Singh while being carried to the hospital,
succumbed to their injuries. On reaching the hospital at Mamdot, the doctor on
seeing the serious condition of Suba Singh (P.W.3) advised that he be taken to
the hospital at Ferozepur for medical treatment. Hardev Singh (P.W.2) then went
to the police Station, Mamdot and lodged a report, Ex-PK at 10.50 p.m. on the basis of which a formal FIR Ex-PK/1 was
recorded. The special report was sent to Illaqa Magistrate at about 1.30 a.m. on 24.5.1985.
Puran Singh then went to the hospital at Mamdot but for want of light he could
not hold the inquest on the dead bodies . He then went to Ferozepur hospital
but there he was told by the doctor that Suba Singh (P.W.3) was unfit to make
any statement . He then returned back to civil hospital at (Mamdot and held
inquest viz. Ex.PC and PF respectively on the dead bodies of Harhajan Singh and
Baldev Singh and sent them to the Civil Hospital, Ferozepur for post-mortem
examination vide his two ruqqas dated 23.5.85 exhibits PB and PF. He thereafter
went to the house of Chanan Singh and during the investigation collected blood
stained earth from the place of occurrence vide Ex. PL. A pair of shoes. Ex. P5/1-2 was also taken into possession therefrom
vide memo Ex. PN. Two empty cartridges recovered from the spot were taken into
possession vide memo Ex. PN. A rough site plan Ex. PV was then preoared. He
then recorded the statements of various persons.
During the course of investigation on 28.5.1985 SI Puran Singh arrested Amrik
Singh (A-3), Gurbhej Singh (A-2), Gurmej Singh (A-4) and Sohan Singh (A-5) Who
were produced by Sadha Singh, the Ex Sarpanch. The accused then made the
disclosure statements under Section 27 of the Evidence Act which led to the
recovery of certain incrimination articles.
Singh (A-1) an Mohan Singh (A-6) were arrested on 31.5.1985 and during the
investigation they also made disclosure statements which led to the recovery of
a gun Ex.P.11 along with five cartridges Ex.P.12 to 16; a licence Ex.P.JJ and a
gandasa Ex.P.17. All these articles were taken into possession vide Ex.P.17.
All these articles were taken into possession vide Ex.PKK and PLL respectively.
The seized articles were then sent to Chemical Examiner, Serologist and
Director, Chandigarh for examination and reports. After completing the
investigation all the six respondents herein were charge sheeted for offences
punishable under Sections 148, 302/149,449,324/149 IPC. A-1 was further charged
for an offence punishable under Section 27 of the Arms Act.
The defence of the accused is that of total denial.
to them they have been falsely implicated due to enmity. They also denied to
have made any statement which led to the recovery of any incrimination article.
The accused pleaded that they are innocent and be acquitted. The prosecution in
support of its case examined as many as 13 witnesses of whom two are witnesses
of facts besides the formal witnesses. The defence also examined Dr.H.L. Bhami,
D.W.1, the Consulting Scientist Forensic Science Laboratory, Chandigarh.
The Learned Sessions Judge, Ferozepur, on appraisal of oral and documentary
evidence on record by his Judgment and order dated 20th September, 1986
convicted Harbhej Singh (A- 1), Amrik Singh (A-3), Gurmej Singh (A-4) and Sohan
Singh (A-5) on three counts viz. (i)449 IPC; (ii) 302/34 IPC; and (iii)324/34
IPC and sentenced each one of them to undergo rigorous imprisonment for five
years on first count; life imprisonment and to pay a fine of Rs.1000/- in
default of payment of fine to undergo further rigorous imprisonment for three
months on second count for causing murders of Harbhajan Singh and Baldev Singh;
and rigorous imprisonment for one year for causing injuries to Suba Singh on
the third count. Harbhej Singh (A-1) was convicted under Section 27 of the Arms
Act and was sentenced to suffer rigorous imprisonment for one year. All
substantive sentences were directed to run concurrently. While acquitting Gurbhej
Singh (A-2) and Mohan Singh (A-6) learned Sessions Judge held that the role
attributed to both of them was very minor inasmuch as A-2 alleged to have
caused a simple injury to Suba Singh (P.W.3) and no overtact was attributed to him
. As regards Mohan Singh (A-6), he found that he alleged to have caused one
injury on non-vital part of the body Harbhajan Singh and one dimple injury to Baldev
Singh. The injuries caused by both these accused could have been caused to them
by other co-accused. No motive was alleged against them and, therefore, their
false implication cannot be ruled out.
The four convicted accused(A-1), (A-3), (A-4) and (A-5) aggrieved by the
judgment and order of conviction preferred a Criminal Appeal No.553 DB/86
whereas the State of Punjab preferred a Criminal Appeal No.198-DBA/87 against
the two acquitted accused (A-2) and (A-6) to the High Court . Both the criminal
appeals were heard together by the Division Bench of the High Court and the
learned Division Bench by its judgment and order dated January 28,1988 allowed
Criminal Appeal No. 553 DB/86 filed by the State of Punjab came to be dismissed
confirming the order of acquitted them all . The appeal filed by the state of Punjab came to be dismissed confirming the
order of acquittal. Appellant Hardev Singh, the brother of Baldev Singh (since deceased
) on obtaining Special Leave has filed Criminal Appeal No.558 of 1988 whereas
Criminal Appeal No. 558 of 1988 is filed by Suba Singh, the son of Harbhajan
Singh (since deceased ) in this Court. Since impugned judgment is common, both
these criminal appeals are being disposed of by this Judgment.
Mr. R.L. Kohli and Mr. Som Datta, the Learned Senior Counsel appearing in
support of these two criminal appeals assailed the impugned Judgement on
various grounds. It was contended that the High Court had totally misread the
direct evidence and other materials on record. The reasoning of the High Court
while acquitting the accused is based on surmises and conjectures and,
therefore, it is unsustainable. It was urged that the evidence on record
clearly establishes that Harbhajan Singh was assaulted in front of the house of
Chanan Singh. This fact finds corroboration from various circumstances. No
sustainable reasons were given by the High Court while rejection the evidence
of Hardev Singh (P.W.2) and the injured witness Suba Singh (P.W.3). It was then
contended that the incident in question occurred on 23.5.1985 at 7.30 p.m. and the First Information Report was lodged at the
earliest opportunity at 10.50
p.m. and copy thereof
reached Illaqa Magistrate at 1.30 a.m. on
High Court was wholly wrong in holding that there was delay in lodging the
First Information Report. Both the eye witnesses were disbelieved on flimsy
ground that they were unable to explain the second fire arm injury on Harbhajan
Singh. It was then submitted that the learned Sessions Judge was equally wrong
in acquitting A-2 and A-6 which order was confirmed by the High Court. There is
unimpeachable material on record to prove that they were members of an unlawful
assembly having a common object to lay murderous assault on the victims. The
trial court as also the High Court had completely misread the scope and true
meaning of section 149 IPC . The High Court ought to have allowed the appeal
filed by the State of Punjab against the order of acquittal of
A-2 and A-6 and they should have been convicted for the offences for the
offences for which they were charge sheeted. Learned Counsel, therefore, urged
that the appeals be allowed and the respondents accused be dealt with in
accordance with law.
It may be stated that the State of Punjab did not file any appeal in this Court against the impugned order of
acquittal passed by the High Court.
Mr. R.S Sodhi, the Learned Counsel for the respondents (accused ) supported the
impugned judgment of acquittal. He urged that the view taken by the High Court
is a probable one and, therefore, no interference is called for. Both the
appeals are devoid of any merit and be dismissed.
We have given our careful thought to the contentions raised before us. With a
view to determine as to whether the view taken by the High Court is probable
one, we have carefully gone through the evidence and other materials on record.
We may briefly indicate the reasons for acquittal given by the High Court an
under:- (i) Delay in lodging the FIR.
Non examination of independent witnesses of facts.
If P.W.2 and P.W.3 were present at the time of incident it would be
unbelievable that they would not have intervened to protect the victims.
When the assailants went to attack Baldev Singh, his relatives including eye
witnesses did not go with weapons to protect him; a situation which according
to the High Court "it is not so easily acceptable in real life".
The witnesses could not have identified the assailants since it was a dark
night hence it was a case of blind murders.
The deceased were men of desparate character and had many enemies and the
respondents (accused) were named as culprits primarily on suspicion.
DDR entry 34 dated 23.5.1985 did not disclose the names of eye witnesses, place
of occurrence or the weapons.
Medical evidence does not support the ocular account since injury No.6 found on
the dead body of Harbhajan Sigh remained wholly unexplained.
The victim (Harbhajan Singh) must have been fired at from a very close range
and not from the distance of 25 ft. as shown in the site plan.
After going through the ocular evidence and other materials on record we are of
the considered view that every finding recorded by the High Court is patently
wrong and unsustainable. The High Court has completely misread the veidence on
Coming to the finding as regards the non-examination of independent eye
witnesses who saw the incident in question we must hasten to add that it is
complete erroneous and unmerited . The prosecution has examined Hardev Singh
(P.W.2) and an injured witness Suba Singh (P.W.3), although some other
villagers did come at the place of incident but in our opinion merely because
other independent witnesses were not examined could not be a ground to
discredit the evidence of these two eye witnesses. This Court time and again
has emphasised that the evidence of close relations who testified the facts
relating to the occurrence be not rejected merely on the ground that they
happened to be the relatives. All that this Court has ruled is that the
evidence of such witnesses be scrutinised very carefully. We have very
carefully gone through the evidence of Hardev Singh (P.W.2) and Suba Singh
(P.W.3) who were consistent in their evidence as regards the details of assault
caused by the respondents (accused). Both the witnesses have given minute
details in regard to the weapons used by each of the accused and the manner in
which they have assaulted Harbhajan Singh in front of the house of Chanan
Singh. They also stated that A-1 fired from his gun at Harbhajan Singh causing
him bleeding injuries. They further stated that the second shot fired by A-1
missed the target. It is true that the medical evidence does indicate two gun
shot injuries. In the facts and circumstances of the case non explanation of
the gun shot injury No.6 by these two eye witnesses would neither dilute their
evidence nor their presence could be doubted. It is the positive case of both
the witnesses that Harbhajan Singh had come the house of Chanan Singh to help
him in the construction work. There is nothing in their evidence which can
persuade us to disbelieve the story narrated as regards the assault on Harbhajan
Singh. Coming to the assault on Baldev Singh caused by the respondents (accused),
Hardev Singh (P.W.2) and Suba Singh (P.W.3) had stated that Baldeb Singh, on
noticing that the respondents (accused) were coming towards him, left the
driver's seat and went to the trolley to escape himself from the probable
attack by the accused. Harbhej Singh (A-1) gave a lalkara and thereupon Amrik
Singh (A-3) climbed up the trolley and chopped off the leg of Baldev Singh with
gandasa. Gurmej Singh(A-4) also climbed up the trolley and gave 2-3 blows on
his left arm from the sharp side of gandasa. Mohan Singh (A- 5) also gave a gandasa
blow from the sharp side on his chest. After infliction injuries to Baldev
Singh the accused fled away. Both these witnesses were searchingly cross
examined by the defence but there is hardly any material brought on record to
discredit their evidence. The evidence of both these witnesses in our
considered view unmistakably proves that the respondents (accused) who were the
members of the unlawful assembly having a common object to cause the murders of
Harbhajan Singh and Baldev Singh did cause such bodily injuries to them as a
result thereof they met with homicidal deaths.
The evidence of both these witnesses find corroboration from the fact that the
blood stained earth seized from the first site of occurrence contained the
human blood. In these circumstances we have no manner of doubt that the
respondents (accused) formed an unlawful assembly and its object was to cause
murderous assault on Harbhajan Singh and Baldev Singh. Both the witnesses have
also testified that the respondents (accused) came together with deadly weapons
in their hands with the common object to cause such assault.
Coming to the next ground of acquittal viz., non intervention of the relatives
of the deceased including the eye witnesses during the assault on the victims
to protect them, In our opinion is wholly unsustainable. Since the respondents
(accused ) were armed with deadly weapons as against this the victims and his
relatives were totally unarmed and in such a situation it was absurd to expect
any intervention and if they were to do so it would have led to some more casualities.
We, therefore, do not see any merit whatsoever in the reasoning given by the
High Court in this behalf.
The High Court was totally wrong in recording a finding that it was a blind
murder during the dark night. The incident took place at 7.30 p.m on 23rd May , 1985
and the witnesses have emphatically asserted that there was enough light to
identify the accused. Moreover the respondents(accused) were known to the eye
witnesses since their houses were adjacent to the house of Chanan Singh.
finding, therefore , is totally imaginary without any material on record.
The next finding of the High Court that the deceased were desparate criminals
having many enemies and the respondents (accused) were roped in on mere
suspicion is again unsustainable. Except the ipse dixit of the respondents
there is no material brought on record to support this assertion. This finding
of the High Court is based on evidence and thus illegal and (21) The further
ground in support of acquittal recorded by the High Court that the case against
the respondents (accused) was framed in the village with the connivance of the
of the police, is based on mere surmise. The very fact that the FIR was lodged
within three hours of the occurrence naming the accused with all details
unmistakably proved the involvement of the accused in the present crime.
Therefore, this ground is figment of imagination on the part of the High Court.
There was hardly any time to concoct any false story against the respondents(accused).
The High Court had again committed a grave error in relying upon the DDR entry
No.34 dated 23rd May,
1985 wherein the names
of the eye witnesses, place of occurrence and the weapons of offence were not
mentioned to corroborate the FIR and ocular evidence.
The finding of the High Court that A-1must have fired from a close range and
not from a distance of 25 ft. as deposed to by Hardev Singh (P.W.2) and Suba
Singh (P.W.3) is not correct. To sustain this reasoning the High Court relied
upon the evidence of Dr. Maan (P.W.1) In a sudden assault of this nature it was
difficult for an eye witness to describe the correct distance from where the
gun was fired . This minor discrepancy in our opinion would not justify to
disbelieve the two eye witnesses.
Coming to the injuries inflicted on Suba Singh (P.W.3), who had stated in his
evidence that he had sustained the injuries on his person during the assault
caused by the respondents (accused), it need be noticed that he was treated at Ferozepur Hospital. His evidence finds corroboration from the evidence of Dr.
A.S. Mann (P.W.1) Medical Officer, Civil Hospital, Ferozepur who Testified to these
injuries. It is true that the same were superficial.
evidence of Suba Singh also finds corroboration from the evidence of Hardev
Singh (P.W.3). In view of this evidence we see no hesitation to conclude that
the respondents who were members of an unlawful assembly caused injuries to Suba
Singh and committed an offence punishable under Sections 324/149 IPC.
The defence has examined Dr. H.L. Bahmi (D.W.1) who claims to be the Consulting
Forensic Scientist New Delhi. We have gone through the evidence and the same in
our opinion is tailor made to suit the defence. After going through the reports
of the Chemical Examiner Ex. PNN and the FSL EX. PQQ produced by the
prosecution and the evidence of Dr. H.L Bahmi (D.W.1) we are satisfied that the
reports of the Chemical Examiner and FSL are more credible and we accept the
same and reject the evidence of Dr. H.L. Bahmi
It also needs to be mentioned that the learned trial judge in paragraph 44 of
his judgment has referred to various recoveries at the instance of some of the
respondents and in particular recovery of .12 bore gun (Ex.P.11) from Harbhej
Singh (A-1). The trial court accepted the prosecution evidence in respect of
these recoveries and held that these various recoveries corroborated the
evidence of two eye witnesses. Surprisingly, the High Court had not touched Thess
evidence at all which in our opinion is a serious error on its part. We accept
the evidence of various recoveries made during the course of investigation,
which in unmistakable terms, corroborates the evidence of two eye witnesses.
Coming to the acquittal of accused Nos.2 and 6 by the trial court against which
the State of Punjab had filed an appeal to the High
Court and the same was dismissed - in our opinion the learned Sessions Judge
had completely misunderstood the scope of Section 149 IPC. The only reason
given by the learned trial Judge was that there was no material on the record
to prove that they caused any serious injuries to the two victims. It was
further observed that no specific role was attributed to these two accused. in
our opinion this finding is again contrary to the evidence on record inasmuch
as both these accused were the members of the unlawful assembly and did have
the common object as it was implicit in their action i.e they were armed with
deadly weapons; came along with other accused and participated in the murderous
assault on both the victims, The trial court and the High Court had erred in
law in not holding both these accused guilty with the aid of Section 149 IPC
for the substantive offences punishable under Section 302 IPC . The order of
acquittal passed by the trial court and on appeal affirmed by the High Court
thus cannot be sustained for the reasons recorded hereinabove.
In the result the Criminal Appeal No.558 of 1988 is allowed. The order of
acquittal passed by the trial court and affirmed by the High Court in respect
of A-2 and A-6 is quashed and set aside. The order of acquittal passed by the
High Court in respect of Harbhej Singh (A-1), Amrik Singh) (A-3), Gurmej (A-4)
and Sohan Singh (A-1) in also quashed and set aside and all the respondents
(A-1) to (A-6) are held guilty for the offence punishable under Sections
302/149 of the Indian Penal Code for committing the murders of Harbhajan Singh
and Baldev Singh and each one of them is sentenced to suffer imprisonment for
life on two counts and to pay a fine of Rs.1000/- each in default further
rigorous imprisonment for three months. Respondents(A-1) to A-6) are also
convicted under Section 449 of the Indian Penal Code and each one of them is
sentenced to suffer RI for five years. Respondents (A-1 to A-6) are also
convicted under Sections 324/149 of the Indian Penal Code for causing injuries
to Suba Singh and each one is sentenced to suffer RI for one year. Harbhej
Singh (A-1) is also convicted under Section 27 of the Arms Act and sentenced to
suffer RI for one year. The substantive sentences of respondents(A-1 to A- 6)
are directed to run concurrently. The respondents(A-1 to A-6) who are on bail,
shall surrender to their bail bonds forthwith to serve out the remainder of
In view of our order passed in Criminal Appeal No.558 of 1988 no separate order
is called for in Criminal Appeal No.557 of 1988, which stands disposed of.