Joginder Singh Vs.
State of Punjab  INSC 437 (27 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 406 OF 2009
(Arising out of SLP (Crl.) No. 2315 of 2007) Joginder Singh ...Appellant Versus
State of Punjab ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Punjab and Haryana
High Court upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') and
sentencing him to imprisonment for life and fine of Rs.2,000/- with default
stipulation as recorded by learned District and Sessions Judge, Ferozepur.
facts in a nutshell are as follows:
A complaint under
Section 302 IPC was filed by Harbans Singh son of Gurbachan Singh, resident of
Chak Saidoke, Police Station Sadar Jallalabad, Tehsil Fazilka against Joginder
Singh stating therein that on 18.1.1993 at about 9.00 AM. complainant, his
brother Harjinder Singh alias Inder Singh, Sube Singh son of Partap Singh, Jarnail
Singh son of Mukhtiar Singh, Pohla Singh son of Aroor Singh all residents of
village Chak Saidoke had gone to the school of the village for the purpose of
casting their votes in the Panchayat Election. At about 9.45 or 10.00 a.m. he
and his brother Harjinder Singh made a request to the voters to keep peace so
that there may not be any dispute in casting their votes for the people, who
were already standing in queue to cast their votes. In the meantime, Constable
Joginder Singh No. 1421, PC Branch, office of the Senior Superintendent of
Police, Ferozepur, (the accused-appellant) challenged his brother Harjinder
Singh and abused him and subsequently, he fired a shot from his rifle. The shot
fired at Harjinder Singh hit on his head and he died at the spot. The
occurrence was witnessed by the complainant along with Sube Singh son of Partap
Singh, Jarnail Singh son of Mukhtiar Singh and Pohla Singh son of Aroor Singh,
all residents of village Chak Saidoke. Joginder Singh was requested not to fire
the shot, but he did not pay any attention and committed the murder of
Harjinder Singh. He lodged a report with Inspector Harbans Lal, who recorded
his statement and a case was registered vide FIR No.5 dated 18.1.1993 under
section 304 IPC, but he was not arrested by the police and no action was taken
against him, notwithstanding the fact that he visited the Police Station on
number of times and this necessitated the filing of complaint.
The inquest report on
the dead body of Harjinder Singh was prepared by Inspector Harbans Lal and he
sent the dead body of Harjinder Singh to Civil Hospital, Fazilka, where post
mortem on the dead body of Harjinder Singh was conducted. As per the post
mortem report, cause of death was due to shock and haemorrhage as a result of
injuries Nos.1 and 2, which 3 were on the vital part of the brain and were
sufficient to cause death in the ordinary course of nature and the injuries
were caused with fire-arms.
was completed, charge sheet was filed. Since the appellant abjured guilt, trial
Stand of the accused
appellant before the trial Court apart from the plea of denial was that some
people tried to snatch away ballot boxes as a consequence of which the law and
order situation became bad. The police party fired in the air to disburse the
mob. The trial Court placing reliance on the evidence of the eye witnesses
recorded the conviction as noted above.
In appeal the primary
stand was that the so called eye witnesses were related to the deceased and,
therefore, their evidence should not have been relied upon. The High Court
found that merely because the prime witnesses were related to the deceased that
did not in any event affect the credibility of their evidence. It was submitted
that only one shot was fired and, therefore, Section 302 IPC has no
application. It was also noted that there was no evidence that the voters had
become uncontrollable or that there was snatching of ballot boxes or ballot
papers. The evidence clearly established 4 that the accused aimed at the head
of the deceased and fired the shot.
Accordingly, the High
Court dismissed the appeal.
stand taken before the High Court was re-iterated by learned counsel for the
appellant in this appeal.
counsel for the State on the other hand supported the judgment of the trial
Court as affirmed by the High Court.
because the eye-witnesses are family members, their evidence cannot `per se' be
discarded. When there is allegation of interestedness, the same has to be
established. Mere statement that being relatives of the deceased they are
likely to falsely implicate the accused cannot be a ground to discard the
evidence which is otherwise cogent and credible. We shall also deal with the
contention regarding interestedness of the witnesses for furthering the
prosecution version. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not conceal actual
culprit and make allegations against an innocent person.
Foundation has to be
laid if plea of false implication is made. In such cases, 5 the court has to
adopt a careful approach and analyse evidence to find out whether it is cogent
Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid
down as under:- "A witness is normally to be considered independent unless
he or she springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused, to wish
to implicate him falsely. Ordinarily a close relation would be the last to
screen the real culprit and falsely implicate an innocent person. It is true,
when feelings run high and there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom a witness has a grudge
along with the guilty, but foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is often a sure guarantee
of truth. However, we are not attempting any sweeping generalization. Each case
must be judged on its own facts. Our observations are only made to combat what
is so often put forward in cases before us as a general rule of prudence. There
is no such general rule. Each case must be limited to and be governed by its
above decision has since been followed in Guli Chand and Ors. v. State of
Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR
1957 SC 614) was also relied upon.
may also observe that the ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) in which surprise was expressed over the impression which
prevailed in the minds of the Members of the Bar that relatives were not
independent witnesses. Speaking through Vivian Bose, J.
it was observed:
"We are unable
to agree with the learned Judges of the High Court that the testimony of the
two eyewitnesses requires corroboration. If the foundation for such an
observation is based on the fact that the witnesses are women and that the fate
of seven men hangs on their testimony, we know of no such rule. If it is
grounded on the reason that they are closely related to the deceased we are
unable to concur. This is a fallacy common to many criminal cases and one which
another Bench of this Court endeavoured to dispel in - `Rameshwar v. State of
Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately
still persists, if not in the judgments of the Courts, at any rate in the
arguments of counsel."
in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p.
209-210 para 14):
"But it would,
we think, be unreasonable to contend that evidence given by witnesses should be
discarded only on the ground that it is evidence of partisan or interested 7
witnesses.......The mechanical rejection of such evidence on the sole ground
that it is partisan would invariably lead to failure of justice. No hard and
fast rule can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautious in dealing with such evidence; but the
plea that such evidence should be rejected because it is partisan cannot be
accepted as correct."
the same effect is the decisions in State of Punjab v. Jagir Singh (AIR 1973 SC
2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and
Ors. v. State of Orissa (2002 (8) SCC 381).
above position was also highlighted in Babulal Bhagwan Khandare and Anr. v.
State of Maharashtra [2005(10) SCC 404], Salim Saheb v. State of M.P. (2007(1)
SCC 699) and Sonelal v. State of M.P. (SLP (Crl.) No.3220 of 2007 disposed of
this case though one pellet was recovered and there was only one injury. But
that does not on the facts of the case take the offence out of the purview of
Section 302 IPC. It cannot be laid down as a rule of universal application that
when there is one shot fired, Section 302 IPC is ruled out. It would depend
upon the factual scenario, more particularly, the nature of weapon, the place
where the injury is caused and the nature of the injury. In the instant case it
has been clearly established that the accused aimed at the head of the deceased
and fired the shot which hit him on his head and that too was fired from a
being the position the applicable offence is Section 302 IPC.
We do no find any
merit in this appeal which is accordingly dismissed.
(Dr. ARIJIT PASAYAT)