Singh & Ors Vs. Gulab Singh & Ors  INSC 560 (8 July 1997)
MUKHERJEE, K. VENKATASWAMI
Singh & Ors. V. State of Haryana WITH CRIMINAL
APPEAL NO. 237 OF 1988
two appeals have been heard together as they stem from a common judgment
rendered by the Additional Judge.
Court. Karnal (at Ambala) in Sessions Trial No. 52 of 1987. Fact leading to
these appeals and relevant for their disposal are as under:
On December 27, 1986 at or about 3.00 A.M. Naurang Singh a resident of Village Manakpur
lodged an F.I.R. with Om Prakash (PW-19) the then Station House Officer of Ambala
(Sadar) Police Station, at Civil Hospital, Ambala, wherein he state inter alia,
that to keep a vigil over the electric lines of their village, Gurdev Singh
(P.W. 10) the Sarpanch used to deploy some villagers every night. In the
previous evening . Gurdev had sent Faquira (P.W. 15) Chowkidar of the village
to inform Harbhajan Singh and Gurnam Singh, tow of the villagers that they
would have to perform the above duty in that night Accordingly, Faquira went to
the house of harbhajan Singh at or about 8.30 P.M. and having found his nephew Nachhatar
Singh present there apprised him of the direction of Gurdev Singh. Nachhatar Singh,
however refused to comply with such direction. Over this issue a quarrel
ensured between Faquira and Nachhatar Singh in course of which the informant (Naurang
Singh) and this son Nirmali Singh (P.W. 14) came out of their house. Nachhatar Singh
then left the place saying that he would teach Gurdev Singh a lesson for
exploiting his authority as the Sarpanch.
thereafter, Gulab Singh, Kulwant Singh, Jaswant Singh @ Bant Singh and Saudagar
Singh, all sons of Amar Singh, Shamsher Singh and Baldev Singh sons of Sadhu
Singh, Charan Singh son of Raunaq Singh and Nachhatar Singh, son of Gurnam
Singh, came there fully armed. While Gulab Singh and Shamsher Singh had guns
with them. Charan Singh and Bant Singh had Gandasas and the other four lathis.
When the informant along with his son Nirmail Singh and Faquira was about to
leave the place to call Gurdev Singh Saudagar Singh gave a lathi blow on his
(informant's) head. Similar blow was also given by Nachhatar Singh. On being so
assaulted, informant raised an alarm and hearing the same. Swaran Singh (the
deceased) and his brother Gian Singh, sons of Gurdev Singh reached there.
Seeing them Shamsher Singh fired a shot which, however did not hit anybody.
Then Gulab Singh fired a shot which hit Swaran Singh and felled him down. All
the miscreants then ran away with their respective weapons. The informant and Swaran
Singh were then taken to the hospital where the State House Officer came on
receipt of a ruqa fro the doctor.
the above statements of Naurang Singh a case was registered against the above
eight accused persons and Sub- Inspector Om Prakash took up investigation. He
first arranged to get the dying declaration of Swaran Singh recorded by Shri
R.K. Garg (P.W. 2) an Executive Magistrate (Exht. P/C-4) and then went to the
site of the incident. He seized some blood stained earth and two pieces of wad
from near the house of Naurang Singh and also prepared a site plan. In course
of investigation, he arrested the accused persons and seized the licenced DBBL
gun of accused Shamsher Singh and two cartridge.
January 11, 1987, Sub-Inspector Om Prakash received
a report that Swaran Singh has succumbed to this injuries:
receipt of the same he went to the hospital and after holding inquest on his
body sent it for postmortem examination. Dr. Vinay Goal (P.W. 1) who held the autopsy,
recovered some pellets from the dead body of Swaran Singh and sent the same to
the Forensic Science Laboratory (F.S.L) for examination. On receipt of the
report of F.S.L. and after completion of investigation police submitted charge-
sheet against the eight accused persons and in due course, their case was
committed to the court of sessions.
accused persons pleaded no guilty to the charges levelled against them and
contended that they had been implicated falsely.
support of its case, the prosecution examined twenty witnesses but the defence
did not examine any. On consideration of the evidence adduced, the Designated
Court convicted all the eight accused persons under Section 148 IPC and 323/149
IPC; accused Gulab Singh under Section 302 IPC and Section 27 of the Arms Act
read with Section 6 of the Terrorist and Disruptive Activities (Prevention)
Act, 1985 (TADA); accused Shamsher Singh under Section 307 IPC and Section 27
of the Arms Act read with Section 6 of the TADA; seven accused (except Gulab
Singh) under Section 302/149 IPC, and seven accused (except Shamsher Singh)
under Section 307/149 IPC.
Assailing their convictions the eight accused have filed one of these two
appeals (Criminal Appeal No. 231 of 1988) while the other appeal has been
preferred by Gian Singh (P.W. 16) the brother of deceased Swaran Singh for
enhancing the sentences imposed upon them.
the context of the case made out by the prosecution the first question that
falls for our consideration in these appeals is whether it has been able to
conclusively prove that Swaran Singh met with his death owing to gun-shot
injuries and Naurang Singh sustained injuries owing to assault by lathis. To
answer this question we may profitably look to the medical evidence on record.
Dr. N.P. Jindal (P.W. 8) Medical Officer of Civil Hospital, Ambala City, testified that on December 26, 1986 at 11.50 P.M. he examined Swaran Singh and found multiple pellet injuries
in and around his abdomen and those injuries were fresh and bleeding. P.W. 8
further testified that thereafter he examined Naurang Singh and found one
lacerated wound on his left parietal region and one abrasion on the right
to the doctor the injuries found on the person of Naurang Singh could have been
caused by lathi. In cross- examination, P.W. 8 stated that Swaran Singh
remained under his treatment upto 7.40 A.M. on December 27,
1986 after which he
was shifted to surgical ward.
testimonies of Dr. Subhas Goel (P.W. 3) and Dr. P.D. Kakkar (PW 7) reveal that Swaran
Singh was X-rayed on the same day and the skiagrams showed multiple radio
opaque shadows of metallic density in the abdominal area.
From the evidence of Dr. S.P. Shenoy (P.W. 7) we get that on January 2, 1987 Swaran Singh was operated upon by
him for gun shot injuries on his abdomen but despite all efforts he succumbed
to those injuries on January
opined that the death was the direct result of the gun shot injuries and in
giving the above opinion refuted the defence suggestion that the immediate
cause of the death was infections developed during surgery.
only other witness examined by the prosecution in this regard was Dr. Vinay Goel
(P.W. 1) who conducted the autopsy on the dead body of Swaran Singh on January 12, 1987. On perusal of his evidence, we
find that his objective findings regarding injuries and his opinion as to the
cause of the death are in conformity with those of the other doctors whose
evidence we have discussed earlier. The evidence of P.W. 1 reveals that some
pellets were recovered from the dead body which were put in a bottle duly
sealed and sent for F.S.L examination.
Since from the evidence of the doctor, it is manifest that Swaran Singh met
with his death due to gunshot injuries sustained on December 26, 1986 and that on the same day.
Singh also sustained some injuries which could be caused by lathi, we proceed
to consider whether they are the outcome of the incident as narrated by the
(P.W. 15) and Gian Singh (P.W. 16) are the two witness who were examined by the
prosecution to give an ocular version of the incident. Besides, it pressed into
service the dying declaration of Swaran Singh (Exhibit P/C- 4), as recorded by Shri
R.K. Garg (P.W. 2) Executive Magistrate Ambala. Before discussing the evidence
of the above witnesses, it need be mentioned that Naurang Singh, who claimed to
have sustained injuries in the incident and lodged the FIR with the police at
the hospital where he was admitted for treatment and as such was the most
important witness for the prosecution was not examined. The learned counsel for
the accused appellants, therefore asked us to draw an adverse presumption
against the prosecution under Section 114, illustration (g) of the Evidence
Act. On perusal of the record, we are however, unable to accept the above
submission as we find that the explanation offered by the prosecution for
non-examination of Naurang Singh that he was gained over by the accused is
borne out by record in that his son Nirmail Singh (P.W. 14) who also claimed to
have seen the incident when examined under Section 161 Cr. P.C. turned hostile.
Beside on being cross-examination by the Public Prosecutor, he (P.W. 14) stated
that the complainant party was suspecting that his father has joined hands with
Coming now to the evidence of the two eye witnesses, we first notice that it
was not disputed that at the material time Gurdev Singh (P.W. 10) was the Sarpanch
and Faquira (P.W. 15) was the Chowkidar of the village and that since prior to
the incident a vigil was being kept over the village electric lines by the
villagers to avert theft as per directions given to Gurdev Singh by the Deputy
Commissioner Judged in the context of the above undisputed facts, the claim of
P.W. 15 as corroborated by Gurdev Singh (P.W. 10) that on the fateful evening
under the direction of the latter he went to intimate Harbhajan Singh and Gurnam
Singh that they were to perform the above duty must be accepted. Equally
acceptable is his further claim that when he met Nachhatar Singh son of Gurnam
Singh he refused to comply with the above directions of Gurdev Singh and
challenged his authority for the record indicates, earlier there was as dispute
over the office of the Sarpanch between Gurdev Singh and accused Shamsher Singh
and Baldev Singh and since ultimately the Deputy Commissioner appointed Gurdev
Singh in the above post the accused party has a grievance against him.
Considered in the light of these facts and circumstances and in absence of any
satisfactory material to indicate as to why P.W. 15 would depose falsely
against the accused persons, we find no reason to disbelieve his testimony
regarding the incident more so when the defence failed to elicit anything in
cross-examination to discredit him.
The evidence of P.W. 15 get ample corroboration from that of Gian Singh (P.W.
16) brother of deceased Swaran Singh. This witness was cross-examined at length
particularly to prove that there was no source of light which could enable him
and P.W. 15 to see the incident much less identify the miscreants but such
attempt failed. On the contrary, we find that his evidence that there was
street light near the site of incident is borne out by Om Prakash (P.W. 19) the
Investigating Officer, who stated that there was an electric pole near the spot
with a bulb fitted therein. In support of his testimony he produced photographs
(PE/7 to PE/12) taken at his instance at the time of his visit to the spot.
Assailing the evidence of Faquira (P.W. 15) it was submitted on behalf of the
accused-appellants that having regard to the testimony of Gurdev Singh that he
(P.W. 15) has come to his house to inform him about the conversation which took
place between him and Nachhatar Singh he could not have been present at the
place of occurrence at the material time for admittedly Gurdev Singh reached
the place only after the firing was over. We do not find any merit in this
contention for there is nothing on record to indicate that Faquira had
continued to stay in the house of Gurdev Singh after apprising him of the talk
he had with Nachhatar Singh and that he went to the place of occurrence with Gurdev
Singh. The other related contention was that Gurdev Singh did not name Faquira
as one of the persons whom he met and heard of the incident when he reached the
spot. This contention is also without any substance for Gurdev Singh stated
that on reaching the spot he found Naurang Singh, Nirmail Singh, Gain Singh, my
son etc. standing there and that the persons present their narrated the
incident to him and mentioned the names of the assailants. From the manner in
which the statement of P.W. 10 was recorded by the Trial Judge the presence of Faquira
therefore, cannot be excluded.
as the testimony of Gain Singh (P.W. 16) is concerned the criticism of the
learned counsel was that it materially contradicted his statement recorded
under Section 161 Cr. P.C. On perusal of his evidence we find that the
contradictions relate to minor aspects and details and do not in any way impair
Notwithstanding the evidence of the two eye witnesses which fully supports the
case of the prosecution we feel that some of the accused-appellants should be
given the benefit of doubt in view of the dying declaration made by Swaran
Singh. Thought therein Swaran Singh specifically mentioned that they were
surrounded by about ten persons and that Shamsher Singh and Gulab Singh fired
shots towards him and his brother Gian Singh (P.W. 16) he did not name five of
the other six accused-appellant and stated that he could not identify them in
the night as their faces were covered. He however mentioned the name of accused
Balbir Singh as one of the persons present there but did not ascribe any role
to him. When the evidence of the two eye witnesses is considered along with the
dying declaration the conclusion is inescapable that along with other Gulab
Singh and Shamsher Singh had formed an unlawful assembly both of them fired
from their respective guns and the shot fired by Gulab Singh hit Swaran Singh
which ultimately resulted in his death. Since however Swaran Singh has not
named five of the appellant before us namely Kulwant Singh, Jaswant Singh, Saudagar
Singh, Charan Singh and Nachhatar Singh, we by way of abundant caution
exonerate them from the charges for which they have been convicted. Accused Baldev
Singh also gets the benefit of doubt in view of the fact that the dying
declaration speaks only of his presence at the spot. For the foregoing
discussion the conviction of both Gulab Singh and Shamsher Singh under Section
148 IPC is upheld. Having regard to the fact that both of them fired shots from
their respective guns it is obvious that the common object of the unlawful
assembly of which they were members was to kill Swaran Singh and his brother Gian
Singh thought the attempt of Shamsher Singh failed. We therefore also uphold
the conviction of Gulab Singh under Section 302 and 307/149 IPC and of Shamsher
Singh under Section 302/149 and 307 IPC as also their convictions under Section
27 of the Arms Act read with Section 6 of the TADA. However since Naurang Singh
was not examined by the prosecution we do not feel inclined to sustain the
conviction of Gulab Singh and Shamsher Singh under Section 323/149 IPC for
causing hurt to him.
the result, we allow the appeal preferred by the eight accused-appellants
(Criminal Appeal No. 231 of 1988) in part and set aside the convictions and
sentences recorded against Kulwant Singh, Jaswant Singh, Saudagar Singh, Charan
Singh, Nachhatar Singh and Baldev Singh. As regard, the other two
accused-appellants, namely Gulab Singh and Shamsher Singh we uphold all the
convictions recorded against them except the one under Section 323/149 IPC.
They will now surrender to their bail bonds to serve out the sentences imposed
upon them for the convictions now upheld by us.
far as the other appeal preferred by Gian Singh (Criminal Appeal No. 237 of
1988) is concerned we find that no ground has been made out for enhancing the
sentences of imprisonment for life imposed upon the above two accused person
namely, Shamsher Singh and Gulab Singh to death. This appeal is accordingly