Hardip Singh Vs. State of Punjab [1993] INSC 369 (21 September 1993)

Reddy, K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)

CITATION: 1994 SCC Supl. (1) 183 JT 1993 (5) 343 1993 SCALE (3)812

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- On September 9, 1979 at about 4 p.m., an occurrence took place at bus-stand, Vijay Nagar, Amritsar during the course of + which one Jamail Singh was attacked by some assailants. He was shot at by a firearm by some of the assailants and others are alleged to have inflicted injuries with some cutting weapons. Karnail Singh, PW 2, the brother of the deceased, Jamail Singh gave a report before the Assistant Sub-Inspector, police post Verka at about 5 p.m. on the same day. In that version it was mentioned that Santokh Singh, accused armed with a rifle, Hardip Singh (appellant herein) and Balkar Singh, accused armed with gandasis and Jagdish Singh, another accused were coming in a bus of Janta Transport Company from Batala and the bus stopped at the bus-stop. The deceased, his brother Karnail Singh, PW 2 and their nephew Chhinda, PW 3 were standing there waiting for the bus. When the deceased was trying to board the bus, Jagdish Singh accused raised a lalkara. Thereupon the deceased tried to run but Santokh Singh, accused fired the first shot which hit on the shoulder of the deceased who fell on the ground. Then Hardip Singh, the appellant and Balkar Singh are alleged to have given gandasi blows and Jagdish Singh after snatching the rifle from Santokh Singh, fired a second shot hitting in the abdomen of the deceased, who died.

2.It appears that Jagdish Singh and Santokh Singh, accused appeared before the Superintendent of Police in the morning of September 10, 1979 and pleaded that they were falsely implicated. The Superintendent of Police directed a police officer, Puran Singh to go to Batala and verify the version given by those accused. The investigation was carried on and ultimately Santokh Singh, Jagdish Singh and Balkar Singh were not arrested and challaned. Instead Balraj Singh, Khajan Singh and Ranjit Singh were challaned as accused along with Hardip Singh, the appellant. The driver of the bus Ram Lubhaya and the conductor Lakhwinder Singh were examined and according to them the occurrence took place in the bus-stand but it was Hardip Singh, the appellant + From the Judgment and Order dated December 23, 1981 of the Punjab and Haryana High Court in Crl. Appeal No. 475 D.B. of 1981 184 armed with a rifle, Balraj Singh and Khajan Singh armed with gandasis and Ranjit Singh armed with a dang, who caused the death of the deceased Jarnail Singh.

3. Dissatisfied with this police investigation, Kamail Singh filed a complaint in which he repeated the allegations made in the FIR. Therefore there were two cases and the learned Magistrate committed both the cases to the Court of Session and they were numbered as Sessions Case No. 51 of 1980 arising out of police challan and Sessions Case No. 56 of 1980 arising out of the complaint. The learned trial Judge consolidated the complainant's case with the challan case and with the consent of the parties recorded the evidence in the latter case and the witnesses were examined.

Practically there appeared to be two sets of eyewitnesses.

Accordingly Karnail Singh, PW 2 and Chhinda, PW 3 appeared as witnesses and gave their own ocular account in accordance with the FIR and the complaint given by PW 2. Ram Lubhaya, the driver and Lakhwinder Singh, the conductor, PWs 6 and 7 also figured as witnesses. They gave their own version of the occurrence as found in the police challan. According to PWs 2 and 3, Santokh Singh fired a shot at the deceased and Hardip Singh and Balkar Singh inflicted gandasi blows and thereafter Jagdish Singh took over the rifle from Santokh Singh and fired again at the stomach of the deceased. But according to PWs 6 and 7, Hardip Singh, the appellant was the first person who fired a shot with the rifle and thereafter the deceased was attacked by Balraj Singh, Khajan Singh and Ranjit Singh, It is also their version that Hardip Singh fired another shot in the abdomen of Jarnail Singh.

4. The medical evidence, however, shows that there were two gunshot injuries on the deceased and some incised injuries. From the above narration, it can be seen that Santokh Singh, Jagdish Singh and Balkar Singh, who figured as accused in the FIR, do not figure as accused in the challan and in their place three other persons figured as accused but those three do not figure as accused in the complaint. The learned Sessions Judge held that the prosecution version in the challan case is not proved and the version given in the complaint was proved but only against Santokh Singh and Hardip Singh and convicted them under Sections 302/34 IPC. They preferred an appeal to the High Court. The State did not prefer any appeal. The High Court, on the other hand, taking the two versions into consideration and mainly relying on the evidence of PWs 6 and 7, the driver and the conductor of the bus, accepted the version given in the challan only against the appellant and convicted him under Section 302 IPC simpliciter and sentenced him to undergo imprisonment for life. Santokh Singh was, however, acquitted. This virtually amounts to reversal of the order of the Sessions Judge. The appeal before us is filed by Hardip Singh.

5. It can be seen that there are some strange features in this case. The Sessions Judge accepted the version given by PWs 2 and 3, the brothers of the deceased and according to them, it was Santokh Singh and Jagdish Singh, who fired at the deceased. Hardip Singh only gave a gandasi blow along with others mentioned in the complaint. The Sessions Judge gave a categorical finding that he was not prepared to believe the version given in the police challan. The High Court, on the other hand, took a quite contrary view and held that the challan version was proved and the version in the complaint was not proved. The High Court also held that Hardip Singh, the appellant shot at the deceased twice. It has to be noted that it was PW 2, the complainant who gave the first information 185 to the police and it was only on that basis that the investigation commenced. PWs 6 and 7 were examined at a later stage. It appears that they were not even examined during the inquest but on the other hand PWs 2 and 3 were examined during the inquest. We have gone through the evidence of PWs 2 and 3 as well as PWs 6 and 7 and the two versions given by them are completely at variance with each other. Likewise both the trial court and the High Court have taken two conflicting views. As a matter of fact, the State did not prefer any appeal to the High Court against the judgment of the Sessions Court acquitting the accused in the challan case which was prosecuted by the State. The two convicted accused in the sessions case that arose out of the private complaint only preferred an appeal to the High Court and the High Court did not accept the evidence in the complainant's case which was accepted by the trial court and reversed the order of the trial court and as a matter of fact acquitted Santokh Singh but in the same breath, accepted the evidence in the challan case and applied the same against the appellant. Thus there are many incongruities in this case. At any rate the two sets of eyewitnesses contradicted each other. Therefore the benefit of the same should go to the appellant.

6.Accordingly the appeal is allowed and the conviction of the appellant under Section 302 IPC and sentence of imprisonment of life awarded thereunder are set aside. If he is on bail, his bail bonds stand cancelled.

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