Singh & Ors Vs. VS  Insc 352 (16 August 2002)
Hegde & D. M. Dharmadhikari. Dharmadhikari, J
Appeal (crl.) 814 of 2001
appeal by three-convicted accused is being decided with Criminal Appeal No.814
of 2001 preferred by the State of Punjab against the acquittal of other three accused in the same incident.
These appeals arise out of the judgment of the High Court of Punjab and Haryana
dated 27th November,
sessions Judge, Amritsar in Sessions Trial No.1/95 convicted
all the six accused for offences under Sections 302,307,323,324,326 read with
Sections 148 & 149 IPC and sentenced them all to life imprisonment and
separate sentences with fines for other offences for which they were charged.
High Court in appeal set aside the conviction of accused Inderjit Singh, Ajaib
Singh and Satinderpal Singh. The High Court also acquitted the other three
co-accused for charge under Sections 148, 149, IPC.
three accused namely, Harjeet Singh, Varinderjit Singh and Gursharan Singh have
been convicted under Sections 302, 307,326,324 and 323 read with Section 34 IPC
and the sentences imposed on them by the trial court have been maintained.
the six accused persons have been alleged to be members of an unlawful assembly
and with common object alleged to have committed murder of Harjinder Singh
(hereinafter referred to as the "deceased") on 15.10.1994 in Village Chhichrewal
within the jurisdiction of Police Station, Jhobal.
accused were also charged as members of unlawful assembly to have fired at Gurvinder
Singh and thus committed an offence under Section 307/149, IPC. They were also
charged in the same capacity to have voluntarily caused grievous hurt to Ajeet
Singh (not examined). The accused Varinderjit Singh has been charged in
furtherance of common intention of the unlawful assembly with common object to
have caused grievous injuries to Harjinder Singh by means of "Kirpan,"
constituting an offence under Section 326 read with Section 149, IPC.
Singh (who died during the trial) was also charged for voluntarily causing hurt
to Harjinder Singh (deceased) and thereby committed an offence under Section
323 read with Section 149, IPC. Accused Ajaib Singh is alleged to have
voluntarily caused hurt to Ajit Singh (not examined) and Darshan Singh PW5 with
a sharp edged weapon called Gandhali and thereby committed offences punishable
under Section 324 read with Section 149 IPC.
shall first take up for decision Criminal Appeal No.815 of 2001 preferred by
the convicted accused Harjit Singh, Varinderjit Singh and Gursharan Singh
hereinafter they shall be described as accused Nos.1,2 & 6 being the order
in which they were arraigned before the trial court.
prosecution case rests mainly on the alleged eye witness account of the
incident given by Hari Singh (PW!) who is brother of the deceased.
also examined Gurvinder Singh (PW3) who is also alleged to have been an
eyewitness to the incident and received injuries. Darshan Singh PW5 was also
examined as alleged eyewitness who received injury in the incident.
eyewitness account given by Hari Singh (PW1) before the trial court is required
to be stated in necessary details for the purpose of appreciating and weighing
the prosecution case. This version of the incident given by him is that on
15.10.1994 at about 8.30 in the morning he was proceeding with his son Harjinder
Singh (deceased) towards their field. They reached near a circular road and at
the place where their stock of wood was lying. Accused No.2, Varinderjit Singh
@ Vicky armed with a "Kirpan, Ajaib Singh acquitted accused No.4 armed
with a Gandhali and Tarsem Singh (who died during trial) armed with Dang came
on a tractor. They were abusing the deceased and shouting that 'they would
teach him a lesson.' The witness then raised an alarm 'Mar Ditta-Mar Ditta'
whereupon his brother Ajit Singh (not examined), Darshan Singh s/o Ajit Singh
(PW5), Sandeep Singh (not examined) and Gurvinder Singh PW3 came there.
No.2, Varinderjit Singh (Vicky) inflicted a Kirpan blow on the deceased which
hit him on his right elbow, Tarsem Singh, the co-accused who died during the
trial gave a Dang blow to deceased Harjinder Singh on the back of his shoulder.
Ajit Singh (not examined), Darshan Singh PW5 and Gurvinder Singh, PW3 tried to
rescue the deceased and in the porocess they also received injuries.
Varinderjit Singh @ Vickey also inflicted a Kirpan blow on the leg of Darshan
Singh PW5. Ajit Singh, who is not examined as witness, also received two
injuries on the left leg by blows of Kirpan inflicted by Varinderjit Singh @
the three accused Harjinder Singh-A2, Ajaib Singh-A4 and Tarsem Singh (who is
dead) as members of the first party, who came in tractor, were inflicting blows
on the deceased and the above named alleged eye witnesses, the other three
accused persons, namely, Harjit Singh (A1), armed with revolver, Inderjit Singh
(acquitted accused No.3) with pistol and convicted accused No.6 Gursharan Singh
armed with a double barrel gun came on the spot. It is stated that they were
all raising Lalkaras and were abusing. All of them came from the side of house
of accused No.6 Gursharan Singh. Further version of PW1 Hari Singh is that when
he saw the three accused who joined later armed with firearms he went inside
his house and took out a double barrel gun. The eyewitness further states that
he saw accused No.1 Harjit Singh firing from his revolver at deceased from a
distance of 4-5 Karmas. Gursharan Singh accused No.6 also fired from his double
barrel gun at the deceased hitting him on head and arms. On receiving the
injuries the deceased fell down. It is alleged that accused No.1 Harjit Sigh,
accused No.6 Gursharan Singh continued to fire with their firearms towards
members of the complainant party. It is then stated that acquitted accused Satinder
Pal Singh (A5) with his firearm hit Gurvinder Singh PW3 causing him injury on
the right knee. Hari Singh (PW1) then stated that as he saw his son the
deceased and Gurvinder Singh PW3 to have fallen on the ground due to injuries
caused to them by the bullets fired by the accused, he fired from his own
double barrel gun which hit accused No.1 Harjit Singh. He stated that after
this incident of firing the accused left the place of occurrence leaving their
tractor at the spot.
to the Autopsy Surgeon, Dr. Harpal Kaur (PW2), the following ante-mortem
injuries were found on the person of the deceased:-
punctured lacerated wound with inverted margins measuring 0.5 cms in diameter
over left lumber region of the abdomen mid-way between iliac crest and left
costal margins, in the mid axillary line. Blackening present around the wound.
On probing the wound was found going deep into the abdominal cavity.
punctured lacerated wound measuring 0.75 cms in diameter on right lumber region
of the abdomen mid-way between iliac crest and the right costal margins, in the
mid axillary line. Margins were inverted. No blackening around the wound was
lacerated would 0.5 cms in diameter over ventral aspect of the right fore-arm
mid-way between elbow joint and wrist joint. The wound had inverted margins and
on probing was directed upwards towards the elbow. No blackening was found
around the wound.
lacerated wound 1.5 cms x 0.25 cm. over the right side of the scalp 3 cms
lateral and parallel to the anterior posterior mid-line of the scalp.
dissection underlying subcutaneous tissue was lacerating and enchoymosed.
Underlying skull done was intact. On opening the skull manages and brain matter
incised wound 5cms x 2 cms over the right elbow joint dorsal lateral aspect.
Underlying subcutaneous tissue and muscles cut. Underlying olecralol process of
right ulna was cut up to the cortex.
abrasion present over left hop, laterranl aspect measuring 5 cms x 0.2 cm.
parrael abrasions 12 cms x 0.2 cms each at a distance of 2 cms from each other
on the left arm posterior aspect over the deltoyed region. Underlying sub- cutaneous
tissue enchoymosed. Muscles and bone healthy.
abrasion 1cm x 1 cm on the dorsal aspect of the middle finger of the right hand
over middle (sic) underlying muscles and bone healthy.
opinion of the Autopsy Surgeon injuries 1&2 caused to abdomen communicated
with each other. Doctor also found a cartridge measuring 2 cms in length and
0.25 diameter embedded in the muscles at a distance of 7 cms from injury No.3
which was caused in right forearm midway between elbow joint and wrist joint.
The doctor in cross-examination said that injury No.1 caused a punctured
lacerated wound with inverted margins measuring 0.5 cms in diameter over left
lumber region of the abdomen. Injury No.2 punctured wound on right lumber
region of the abdomen on which margins were inverted and injury No.3 is on the
right forearm from where an embedded cartridge was removed could be result of
one single fire. She also admitted that injuries 6 to 8 were possible by
rubbing against hard surface. The autopsy surgeon was very definite in her
opinion that injury No.4 which is a lacerated wound on the head cannot be the
result of a firearm, as there was no blackening or charassing. To support her
Opinion that injuries 1 to 3 could be caused by one single bullet the doctor
said that the dimensions of injuries 1 and 3 were the same and injuries 1 to 3
were in the same line and were possible with one bullet.
prosecution also got medically examined injuries alleged to have been caused to
witnesses Darshan Singh (PW5) Gurvinder Singh (PW3) to ascertain the nature of
injuries caused to them in the alleged incident. We shall deal with that
medical report at the appropriate stage when we take for consideration the part
allegedly played in the incident by the convicted accused.
to the prosecution on a disclosure statement made by accused Satinder Pal Singh
(Ex.P4) all the firearms alleged to have been used by the accused were
recovered with 12 cartridges wrapped in a gunny bag under the heap of crop in
the field near the tubewell of accused Inderjit Singh. The recovery memoranda
is Ex.PU/1. Memorandum of disclosure statement Ex.P4 and memorandum of recovery
of arms Ex.PU/1 have been signed as witness by Faqir Chand and Virsa Singh both
are Police Officer of the rank of Police Assistant Sub-Inspector. Investigating
Officer Puran Singh PW9 admits that no independent witnesses have signed the
memoranda of disclosure and recovery.
and cartridges recovered were sent to the Forensic Science Laboratory, Chandigarh for obtaining opinion of the
Ballistic Expert. In the opinion of the Ballistic Expert the empty cartridges
sent for examination could have been fired from the recovered firearms. Copy of
the report of the Forensic Science Laboratory is Ex.PZ.
of accused Harjit Singh A1 as contained in his statement recorded under Section
313 Cr.P.C. is as under: He accepts his presence on the date and time of the
incident. He also admits that he was carrying his licensed revolver. According
to him he belongs to communist party and as was on the hit- list of the
terrorists he was allowed to have a licensed fire-arm which he normally carried
on his person for his self protection. According to him the cause of the
incident is long pending dispute regarding the piece of land on which the
complainant party had stocked their wood and thereby caused obstruction to the
path which led to the houses of the accused party. To explain the nature of
dispute over the piece of land he states that he is member of the Panchayat and
with co-accused had approached the Gram Panchayat with a request that the path
by which they approached their houses from the village be paved with bricks as
the same gets flooded during rainy season. Hari Singh PW1 and their relations
including his son deceased Harjinder Singh were opposing such a move as they
wanted to illegally occupy that part of the village common land. The Panchayat
had approached Hari Singh (PW1) and members of his family but they persisted in
their stand. In September 1994 an application was moved before the Naib Tehsildar
for demarcation of the street. The members of the staff of Revenue Department
and Panchayat visited the spot on 22.2.1994 and held measurement.
Singh (PW1) was asked to sign the proceedings prepared by the Kanungo but he
refused to sign it. Villagers raised the level of the street by putting earth
on it for paving the same with bricks. Deceased Harjinder Singh had placed some
logs of wood on the pavement which were removed by the Panchayat before raising
the level of the street. On 14.10.1994 the deceased and his relations removed the
earth from the pavement. The respectable members of the Panchayat and village
requested them to desist from doing so.
15.10.1994 the deceased brought the logs of wood on tractor and placed them on
the pavement. Tarsem Singh (accused who is dead) and Varinderjit Singh @ Vicky
A2 objected as obstruction was caused to passage to their houses. Whereupon
deceased who was accompanied with Gurvinder Singh PW3 declared that they would
not allow anyone to pave the street. The deceased was carrying a double barrel
gun and Gurvinder Singh PW3 a spear. According to accused Harjit Singh he was
attracted towards the spot from his nearby house as he heard a noise of quarrel
(Raula). The deceased and Gurvinder Singh PW3 made an attempt to assault
accused Tarsem Singh and Vicky. Accused Harjit Singh then requested the
deceased not to pick up quarrels by placing logs of wood on the path. The
deceased thereupon blamed Harjit Singh being member of Gram Panchayat to be the
root cause of quarrel and he had been instrumental in raising the level of the
street. The deceased on thus getting enraged fired two shots at Harjit Singh,
which hit him. They were making further advances towards him to assault. It is
at that time, according to Harjit Singh, he opened fire in his defence from the
revolver that he was carrying. He further stated that accused Gursharan Singh
was also attracted towards the spot on hearing Raula. Then he intervened to
rescue Harjit Singh and in the process was also assaulted by PW3 Gurvinder
Singh. According to Harjit Singh on receiving a shot from the firearm of the
deceased he was seriously injured and was taken to Civil Hospital, Amritsar. He remained indoor patient till
24.10.1994. His statement was recorded by the police in which he gave the
version of the incident but the police did not make any investigation against
the members of the complainant party.
the plea of Harjit Singh, accused No. 1 is that since his house was near the
place of incident he was attracted by the commotion and went to the spot. He
was carrying his licensed revolver which he always carried being member of the
communist party and on the hit list of the militants. When deceased fired at
him and injured him he fired back at him in exercise of right of private defence
of his person. It is also stated that at that time Hari Singh PW1 Darshan Singh
PW5 and Ajit Singh were not present and they have falsely been described as
eyewitnesses to the incident.
AGAINST HARJIT SINGH (A-1) We take up for consideration first the case of Harjinder
senior counsel Mr. U.R. Lalit assails the conviction of the accused (A-1) on
several grounds. Some of the grounds urged by him are common in assailing the
conviction of other two co-accused named Varinderjit Singh @ Vicky (A-2) and Gursharan
Singh (A-6). He submits that as has been tried to be proved by the alleged
eye-witnesses examined by the prosecution, the incident resulting in death of
the deceased happened in two parts. In the first part of the incident, the
co-accused Varinderjit Singh @ Vicky (A-2) armed with Kirpan, Ajaib singh (A-4)
armed with Gandhali and Tarsem Singh (who died during trial) armed with a Dang
came on tractor. It is submitted that these three co-accused might have
proceeded together on the tractor but it is not possible from that evidence and
from their subsequent acts to infer that they had a common intention to commit
murder of the deceased. They did not carry with them any fire arms. They had
proceeded towards the spot only because the deceased had been obstinate in
asserting his right to the portion of land on which he had stacked his wood.
counsel submits that the other three accused viz., Harjit Singh (A-1), Inderjit
Singh (A-3) and Ajaib Singh (A-4) went to the spot after they had heard a commotion
described as Raula or noise of fighting. The act of members of party No. 2 in
rushing towards the scene of occurrence, where the members of the first party
after reaching on a Tractor had already clashed with the deceased and Gurvinder
Singh (PW-3), does not show a common intention on their part to commit murder
of the deceased.
the cross-examination of Hari Singh (PW-1), brother of the deceased, it is
pointed out to us that version of giving of Lalkaras by the members of the
second party who had rushed towards the scene is a material improvement over
version of the eye-witnesses given by them to the police in their statement
under Section 161 Cr.P.C. Reading portion of cross-examination of Hari Singh
(PW-1) it is pointed out that Hari Singh admitted that he had taken out his own
gun and had fired in self-defence. From the Injury Report of Harjit Singh
(A-1), it is pointed out that he was seriously injured and his condition was
serious when he was admitted to the hospital. On behalf of the accused, Harjit
Singh (A-1), the learned counsel severely criticized the reasoning of the High
Court in rejecting his plea of self-defence. The High Court on the basis of
Injury Report of the accused (A-1) inferred that as he had suffered serious
injuries on his legs, he could not have fired in self-defence. Learned senior
counsel appearing for the accused assails the above reasoning and conclusion
reached by the High Court for rejecting the defence plea of the accused (A-1).
He submits that the investigation in the case made by the Investigating Officer
was partisan, one sided and did favour to the complainants. In his
cross-examination, the Investigating Officer, Puran Singh (PW-9) admits that he
had come to know that in the same incident, accused Harjit Singh (A-1) had
suffered serious injuries and co-accused Varinderjit Singh and Gursharan Singh
had also suffered injuries yet he had made no investigation as to how those
injuries were caused to the above members of the accused party.
learned counsel appearing for the accused argues that in incident in which two
parties clashed and there were allegations of cross-firing and assaults on each
other, it was the duty of the prosecution to have also explained the injuries
sustained by the members of the accused parties. Non-explanation of the
injuries to the members of the accused party shows that prosecution has not
come out with full and truthful version of the incident. It has suppressed the
genesis of the crime. It is, therefore, argued that the eye-witness account
given by Hari Singh (PW-1) who is father of the deceased and being his near and
dear one should not be believed in the absence of independent corroboration to
his version. The incident took place in the day time in the village and must
have been witnessed by many independent witnesses but none of them was examined
by the prosecution. He submits that there has been a clear attempt on the part
of Hari Singh (PW-1) to rope in as many members of the families of the accused
party as was possible. In order to involve other co-accused who had taken no
overt part in the incident, a material improvement was made by him in the
statement in court by attributing that both the members of the parties (nos. 1
& 2) were raising Lalkaras indicating common intention on their part. It is
further pointed out that attempt has been made as an after thought by Hari
Singh (PW-1) to explain serious injuries caused to the accused (A-1) with fire
arms by taking a false plea that in order to save his son (the deceased Harjinder
Singh), Hari Singh (PW-1) had to take out his own gun and fire at the accused, Harjit
Singh (A-1). It is argued that this version of Hari Singh (PW-1) is artificial
and a lame attempt on his part to some how explain serious fire arms injuries
caused to accused Harjit Singh (A-1). This fact of his own firing was not
stated by him in his statement under Section 161 Cr.P.C made to the police. The
relevant part of the statement of Hari Singh (PW-1) in the court reads thus:-
"I fired twice from my gun. Both the fires might have hit Harjit Singh.
But I had not stated to the police in my statement Ex.P.A that any of my fire
hit Harjit Singh. I did not state in my statement that Harjit Singh was injured
with my fire." It is on the above circumstances, improvements and omissions,
in the statement of Hari Singh (PW-1) that the learned counsel appearing for
the accused Harjit Singh (A-1) submits that plea of self-defence of the accused
should be accepted by the court. The submission made is that accused (A-1) was
seriously injured. The medical report clearly shows that the injuries caused to
him were by fire arm. The statement of Hari Singh for the first time in court
that injuries to the accused (A-1) were caused by shots fired from his gun is
an after-thought and cannot, therefore, be believed. It is, therefore,
submitted that Harjit Singh (A-1) who had suffered a fire arm shot from
deceased, had to open fire in exercise of his right of private defence of his
person. It is argued that there is fallacy in the reasoning of the High Court
that accused (A-1) having suffered serious injuries on the legs could not have
fired back in self-defence and therefore, his case has to be disbelieved. It is
argued that admittedly accused (A-1) had not suffered any injury on any vital
part. It is not the medical opinion that by sustaining fire arm injuries on the
legs, he might have fallen unconscious.
that be so even after receiving the bullet injuries on his legs, he could have
fired back to save himself.
have given very careful consideration to the relevant evidence and the
submissions made by the learned counsel on behalf of accused (A-1). In our
opinion, in spite of infirmities in the prosecution case as highlighted above,
the plea of self-defence is not available to the accused (A-1) for other
reasons. There is nothing on record to disbelieve the version of the
prosecution witnesses that three accused as members of the first party armed
with lethal weapons came on the tractor and challenged the deceased who was
asserting his right on piece of land over which he had placed his stock of
wood. The first party has, therefore, a serious grievance against the deceased.
Accused Harjit Singh (A-1) was member of the Panchayat and as per his own defence
version, he was making efforts through the Panchayat and Revenue Authorities to
get the land cleared from encroachment of the deceased so that access through
the path to their houses remains unobstructed. His version is that he was
attracted by the noise of quarrel between the accused who had first arrived on
the spot and the deceased.
admits that on hearing Raula or commotion, he went to the spot with his
revolver. He as a member of the Panchayat with other accused wanted that the
encroached land be cleared for access to the houses of the accused. His rushing
towards the spot with revolver in his hand clearly indicates that he had gone
there to help the three other co-accused who had reached the spot before him on
a tractor with weapons in their hands. The accused Harjit Singh (A-1), thus,
joined the three accused who had earlier reached on the spot on tractor. He
was, therefore, one of the members of the aggressor party and had joined others
on the spot with his revolver. He being one of the aggressors can claim no
right of self-defence. His plea that being on the hit list of terrorist he
always carried his licensed arms does not satisfactorily explain his conduct of
rushing towards the spot with revolver. Accepting the defence version that the
deceased fired at the accused (A-1) and seriously injured him on the legs, it
can be said to be an act committed by deceased in exercise of his (deceased's)
right of private defence.
such circumstances, if the deceased had first fired at the accused (A-1), as
the latter arrived on the spot with a revolver, the right of private defence
was available to the deceased and not to the accused.
much importance can be attached to the fact that there was serious lapse on the
part of Investigating Officer in not investigating the facts leading to the
cause of injuries to the accused (A-1) and the other co-accused in the same
incident. It has been admitted on behalf of the accused that they had not filed
any counter complaint or First Information Report against the members of the
deceased party. There is no explanation for the same. Even if the accused (A-1)
was admitted in hospital, nothing prevented him or other co-accused from
lodging a report of commission of offence by the members of the deceased party.
plea of self-defence, therefore, is clearly an after-thought. The accused (A-1)
had suffered serious fire arm injuries in the incident and could not possibly
have denied his presence and participation in the incident. Accused (A-1) has,
therefore, come up with the false plea of self-defence which, for the aforesaid
reasons we do not find worthy of acceptance. The conviction of the accused Harjit
Singh (A-1), therefore, deserves to be maintained under Section 302 IPC for
causing death of the deceased.
shall now take up for consideration the cases of convicted accused Varinderjit
Singh @ Vicky (A-2) and Gursharan Singh (A-6). Case against the accused Varinderjit
Singh @ Vicky (A-2).
the eye-witness account, accused Varinderjit Singh @ Vicky (A-2) was member of
the first party who went on tractor to the spot with a Kirpan.
counsel firstly submits that accused (A-2) who was a member of the first party
could not have been convicted under Section 302 with aid Section 34 of IPC by
attributing common intention to him with co-accused Harjit Singh who shot at
and killed the deceased. It is submitted that the case of prosecution is that
the deceased died by fire arm injuries caused to him by accused Harjit Singh
(A-1). The medical evidence also supports the version that the three injuries
Nos. 1, 2 and 3 could have been caused by one bullet. There is an entry- wound
and exist-wound and a deep injury on forearm from which a cartridge embedded in
the muscles was recovered as per the post-mortem report of the deceased. In the
opinion of Autopsy Surgeon, one revolver shot could have caused all the three
injuries. Other three injuries including one said to have been caused on the
head of the deceased was not found to be a fire arm injury. The accused (A-2),
it is argued, only carried a Kirpan and was a member of the first party who
came on tractor. This accused and other two co-accused who accompanied him on
tractor could not have expected that on hearing Raula or commotion, accused
(A-1) would appear on the scene with a revolver and would fire at the deceased.
If at all the common intention is to be attributed to three accused who came on
tractor and on reaching the spot caused injuries to members of complainant
party, at worst show their common intention to cause injuries to the deceased
to teach him a lesson for encroaching on the disputed land and for his
obstinate attitude. The members of the first party only inflicted simple and
grievous injuries to the members of complaining party. They did not inflict any
serious injuries on any vital part of the body of the deceased. The cause of
death of deceased was not due to any injuries caused to him by any of the three
accused who first came on a tractor. In these circumstances, with the aid of
Section 34 of IPC, accused (A-2) could not have been convicted under Section
302 of IPC for the fatal shot by fire arm of the accused (A-1) who was a member
of the second party and had reached the place of occurrence little after the
first accused party had arrived.
given our thoughtful consideration to the submissions made in the light of the
evidence on record, we find that there is sufficient force in the submissions
made by the learned counsel on behalf of the accused (A-2). As has been stated
above since accused(A-2) was member of the first party of the accused who had
come on tractor, he cannot be attributed common intention with accused Harjit
Singh (A-1) who joined the first party at a later point of time with his
revolver. As has already been noticed above, it has been alleged that all the
accused of the first and second party were raising Lalkaras and came out of the
house of Gursharan Singh. This allegation has been found to be a material
improvement made by Hari Singh (PW-1) over his statement made to the police
under Section 161 Cr.P.C. in which there is complete omission on that part of
his version of Lalkaras. The evidence on record, therefore, does not show that
accused Varinderjit Singh @ Vicky (A-2) had any common intention with accused Harjit
Singh (A-1) in commission of murder of the deceased. The trial court and High
Court, therefore, cannot be held to be right in convicting accused Varinderjit
Singh @ Vicky (A-2) for offence under Section 302 read with Section 34 of IPC.
The conviction of accused (A-2) under Section 302 read with Section 34 of IPC
is, therefore, set aside and he is acquitted of the said charge.
have now to consider whether the conviction of accused (A-2) is sustainable
under Sections 307, 323, 324 and 326 read with Section 34 of IPC.
against accused Varinderjit Singh @ Vicky, Hari Singh PW1 has stated that
accused Vicky had inflicted a Kirpan blow to the deceased which hit him on his
right elbow. Thereafter he is alleged to have inflicted a Kirpan blow on the
leg of Darshan Singh PW5. The witness in cross-examination admits that allegation
against Vicky that he gave two Kirpan blows also to Ajit Singh on his left leg
was not told to the police in his statement under Section 161 Cr.P.C. Ajit
Singh has not been examined.
other eyewitness PW3 Gurvinder Singh corroborates PW1 in stating that Vicky
came with the first party holding a Kirpan. On the alleged part played in the
incident by Vicky, this witness states that a Kirpan blow was inflicted by him
on the deceased on his right elbow but he admits that he did not mention the
fact to the police in his statement under Section 161 Cr.P.C. He also admits
that he did not tell anyone in the village as to how he received injuries. As
per the defence taken by accused Vicky in the course of cross-examination of
eyewitnesses and his statement under Section 313 Cr.P.C., he was present at the
place of occurrence. He states that accused No.1 Harjit Singh fired at the
deceased in his defence.
have already extracted the relevant part of the post-mortem report describing
the ante-mortem injuries suffered by the deceased. We have also noted that as
per medical opinion injury Nos.1,2, & 3 could have been caused by one fire
from the revolver. The other injuries found on the body of the deceased are
injuries Nos.4 to 8. Injuries 6,7 & 8 are abrasions. Injury No.4 is
lacerated wound. Only injury No.5 which is incise 5cms. X 2cms. Over the 'right
elbow joint dorsal lateral' could have been caused by a Kirpan, which is a
sharp edged weapon. This injury is not on any vital part of the body and was
not in the ordinary course of nature sufficient to cause death. So far as Darshan
Singh PW5 is concerned he does not remember who caused injuries to him. The
three injuries as are found on his person in injury report on examination by
Singh PW7 which include contusions and abrasions, are likely to have been
caused by use of some blunt object. Only injury No.3 found on the person of Darshan
Singh is an incised wound of 3.5 x 1 cm muscle deep on the front of right knee
of the inner surface, which alone could be caused by sharp edged weapon like Kirpan.
Gursharan Singh PW3 has categorically stated that he is not aware who caused
him firearm injuries. Dr. KK Sharma who medically examined him states on the
basis of the X-Ray report that injuries 1 & 2 caused on the right leg of Gurvinder
Singh were injuries which could have been caused by firearm.
other two injuries 3 & 4 are "contusions" and are described as
overall discussion and appreciation of evidence we are of the opinion that the
common intention would be inferred against party No. 1 who had come on a
tractor with lethal weapons but not fire arms. The party no. 2 which rushed to
the place of occurrence on hearing commotion cannot be held to have acted with
any common intention amongst themselves. Accused Varinderjit Singh @ Vicky
(A-2) cannot, therefore, be held guilty of offence under Sections 302 and 307
read with Section 34, IPC. On the basis of the allegations found to have been
proved against him he caused grievous and simple injuries to the deceased and
being the member of party no. 2 who had gone on a tractor with common intention
to cause injuries to the deceased and the eyewitness, is liable to be convicted
under Sections 326, 324 read with Section 34, IPC. His conviction and sentences
imposed on him by the trial court under Section 326, 324 read with Section 34
and 322 read with Section 34 alone deserve to be maintained.
against Gurshan Singh accused No.6 According to the version of eyewitnesses, Gursharan
Singh A6 was member of party No.2 who reached on the spot subsequently after
party No.1 were already engaged in altercation and wordy duel with the
deceased. This accused is alleged to have reached on the spot armed with a
double barrel gun.
have already disbelieved the version of the eyewitness that he was also raising
Lalkaras with other co-accused. According to Hari Singh PW1 accused Gursharan
Singh A6 fired with his double barrel gun towards the deceased and hit him on
the head, arm and flank. We have already extracted above contents of the
post-mortem report of the deceased in which the doctor is very clear in his
opinion that the injury found on the head of the deceased did not appear to
have been caused by any firearm. It is therefore unsafe to rely on the
testimony of PW1 Hari Singh that accused No.6 Gursharan Singh hit the deceased
on any vital part of the body. The eyewitness also admit that Gursharan Singh
had also fired at other members of the complainant party and then had himself
fallen down on the ground.
other eyewitness Gurvinder Singh PW3 corroborates PW1 that accused No.6 had
fired with his double barrel gun and hit the deceased on his head and other
parts of the body. We have already stated above that in the absence of firearm
injury on the head of the deceased this part of the version of eyewitness
cannot be relied. PW3 has suffered as per the injury report, firearm injury in
his right leg but he very categorically stated that he did not know who fired
at him as there was firing all over.
Gursharan Singh had rushed on hearing commotion towards the scene of occurrence
along with other co-accused who constituted party No.2.
accused who subsequently rushed towards the spot with firearms in their hands
cannot be said to have gone with any common intention because there was hardly
any time with them for meeting of minds. It is prosecution's own case that
members of party Nos.1 & 2 both had a grudge on the stubborn attitude of
the deceased because despite intervention of the Panchayat he had been
asserting his right to the disputed land. It is undeniable that common
intention can develop on the spur of the moment and can be inferred from the
overt acts committed by the accused. We find no evidence in this case to come
to a conclusion that after the members of party No.2 rushed with firearms to
the place of occurrence a common intention developed between them. As has been
stated by the eyewitnesses, by the time the members of accused party No.2
reached on the spot, the scuffle had already commenced between members of party
No.1 and deceased. The appearance of the members of accused party No.2
therefore could raise an inference that they had gone to intervene in the
quarrel to support the members of accused party No.1 who had already reached on
the spot on a tractor. In the aforesaid circumstances we do not find any ground
to infer common intention inter-se between members of party No.2 who rushed on
hearing commotion towards the place of occurrence. In the absence of common
intention on their part, they cannot be held vicariously liable for the
commission of criminal acts of other co-accused who were members of party No.2.
The accused constituting party No.2, therefore, can only he held liable for
their individual acts.
following observations of Justice Krishna Iyer speaking for this Court in Hira Lal
Malik vs. State [AIR 1977 SC 2236] :
a crime is committed by the concerted action of a plurality of persons
constructive liability implicates each participant, but the degree of criminality
may vary depending not only on the injurious sequel but also on the part played
and the circumstances present, making a personalized approach with reference to
each. Merely because of the fatal outcome, even those whose intention,
otherwise made out to be far less than homicidal cannot, by hand sight-reading,
be meant to have had a murderous kindred mens rea." Common intention is a
state of mind of an accused which can be inferred objectively from his conduct
displayed in the course of commission of crime as also prior and subsequent
attendant circumstances. Mere participation in the crime with others is not
sufficient to attribute common intention to one of others involved in the
crime. The subjective element in common intention therefore should be proved by
objective test. It is only then one accused can be made vicariously liable for
the acts and deeds of the other co-accused.
members of party No.1 reached on the spot variously armed with weapons other
than firearms. They declared their intention to teach a lesson to the deceased
for his stubborn attitude in asserting right to a piece of land intended for
common use. A common intention can be inferred on their part from their conduct
in reaching the spot together on a tractor and their subsequent acts in causing
grievous and simple injuries to the deceased and the eye-witnesses.
members of second party armed with firearms may have come from the same
direction to the place of occurrence on hearing a commotion created due to
fight between members of party No.1 on one part and the members of the deceased
party on the other part but on this version of the incident the members of
party No.2 cannot be said to have a common intention either amongst themselves
or with members of party No.1 who had already reached the spot.
members of party No.2 who rushed to the place of occurrence acted individually
on their own impulses and reactions to the altercation which had already
commenced between members of party No.1 and the deceased's party.
the incident happened in two parts, as described above, common intention can be
inferred inter-se between members of party No.1 who had earlier reached on
tractor but, no common intention can be interred against them with members of
party No.2 who had rushed with firearms towards the place of occurrence
afterwards and fired at members of the accused party.
members of party No.2 reacted differently in their own manner and would
therefore be liable for their individual acts. No common intention can be
inferred on the part of members of party No.1 with members of party No.2.
at from this angle Gursharan Singh (A6) as per the medical report of the
injured eyewitnesses can be said to have caused grievous and simple injuries by
use of his firearm. Therefore, in our considered opinion he is also liable to
be acquitted of the charge under Section 302 and 307 IPC read with Section 34
IPC. His conviction and sentences passed by the trial judge under Section 326,
Section 324 and 323 IPC read with Section 34 IPC or imprisonment with fines
separately imposed for those offences, therefore is liable to be maintained.
take up for consideration the appeal preferred by the State of Punjab. By this
appeal, judgment of the High Court dated 22.11.2000 of acquittal of the accused
viz., Inderjit Singh, Ajaib Singh and Satinderpal Singh has been questioned.
This appeal is also directed against the acquittal of other convicted
co-accused for offences under Sections 148 and 149 of Indian Penal Code (for
High Court in acquitting the three accused Ajaib Singh, Inderjit Singh and Satinderpal
Singh, has not discussed evidence in detail. We have, therefore, ourselves
looked into the record and heard the learned counsels appearing for the State
and the accused.
Singh is alleged to be a member of the accused party No.1 which came first on
tractor to the spot. Allegations against Ajaib Singh is that he was carrying a Gandhali
and caused injury to Darshan Singh (PW-5). Darshan Singh has also alleged that
after giving him a blow on the right side of the abdomen, Ajaib Singh also
inflicted a Gandhali blow to Ajit Singh. In cross-examination, Darshan Singh
admits that this fact of infliction of Gandhali blow by Ajaib Singh on him and Ajit
Singh has not been mentioned by him to the police in his statement recorded
under Section 161 Cr. P.C. In the statement to the police, this witness never
stated that he had received a Gandhali blow on the right knee and right side of
the abdomen. The other alleged injured witness Ajit Singh has not been
examined. Dr. Varinderjit Singh (PW-7) has medically examined the injuries of Darshan
Singh (PW-5). The following injures were found on Darshan Singh :-
reddish contusion 4 cm x 1 cm on the front of the right abdomen in the vertical
direction 6 cm to the right of the umbilicus.
abrasion 13 cm x cm on the front of the right abdomen in the vertical direction
6 cm to the right of the umbilicus.
incised wound 31/2 cm x 1 cm muscle deep on the front of right knee on the inner
surface inner side of the patella.
abrasion 2 cm x cm on the lateral surface of left leg in its middle third.
cross-examination, Doctor has stated that injury Nos. 2, 3 and 4 are simple in
nature and could be self inflicted. Injury No. 2 appears to have been caused
with a blunt weapon. Similarly, injury No.1 was so simple and it could be
caused by a friendly hand. On this state of evidence, Ajaib Singh appears to
have been falsely implicated and his acquittal is, therefore, well merited.
as the case against acquitted accused Inderjit Singh is concerned, he is
alleged to be a member of the party no. 2 who rushed to the spot on hearing Raula
or commotion. It is alleged that he had carried with him a pistol and fired
towards the complainant party along with co-accused Gursharan Singh (A-6) and Satinderpal
Singh(A-5). Neither Gurvinder Singh (PW-3) nor Darshan Singh (PW-5) states that
bullet fired from the pistol of Inderjit Singh hit any of them. Darshan Singh
merely stated that he had received fire arm injuries on his right knee but has
very categorically stated that he did not know who fired and caused that injury
to him as according to him all were firing. The Investigating Officer, Puran
Singh (PW-9) in cross-examination, admitted that he did not find any empty
cartridges fired from pistol on the spot. In these circumstances, an omnibus
statement of the eye-witnesses could not be believed that Inderjit Singh had
fired from pistol in his hand which caused fire arm injuries to the complainant
as against acquitted accused Satinderpal Singh(A-5), no case has been proved by
the prosecution. Darshan Singh (PW-5) has alleged use of double barrel gun by Satinderpal
Singh who also is alleged to have rushed to the spot on hearing Raula or
commotion. Gurvinder Singh (PW-3), as has already been pointed out, has not
definitely stated that as to whether Satinderpal Singh fired had caused
injuries to him. So is the statement of Darshan Singh (PW-5) who had stated
that Satinderpal Singh had taken a position along with other co- accused and
had started firing at them. In cross-examination, he admitted that the fact of
firing at him by Satinderpal Singh with double barrel gun was not mentioned by
him to the police in his statement under Section 161 Cr. P.C.
above state of evidence which is not clinching against the accused, the
conclusion of the High Court that the three acquitted accused are entitled to
have the benefit of doubt cannot be said to be a wrong appreciation of evidence
or so perverse as to justify taking a different view and interfere with the
order of acquittal.
from the version of eye-witnesses discussed above, the trial court attached
importance to the fact that on a disclosure statement of accused Satinderpal
Singh, pistol alleged to have been used by Inderjit Singh was recovered under
memorandum Ex.P-19. We have referred to the statement of Investigating Officer Puran
Singh (PW-9). He is unable to explain the reason for not procuring the
attendance and signature of independent witnesses on the disclosure statement Ex.P-V
and memorandum of recovery Ex.P-U/1. We have noted that these memoranda have
been signed only by two police officers Faqir Chand and Virsa Singh. It is
unbelievable that all the accused persons who have alleged to use their fire
arms/weapons kept all the arms concealed in a open field in a gunny beg under a
heap of straw. In the absence of independent witnesses and the alleged place of
concealment being accessible to public, the evidence of disclosure statement
and the consequent recovery of arms and weapons do not at all inspire
confidence. In any case, it is not a piece of evidence which could be relied by
the trial court to convict the accused by treating it as eye-witness account.
have also heard learned counsel appearing for the State who tried to show from
the evidence that the presence of three acquitted accused was fully proved by
the prosecution. In appeal against acquittal, the appreciation of evidence done
by the High Court, unless it appears to be unreasonable, should not be
interfered with. We have ourselves looked into the whole evidence on record. In
our opinion, none of the three accused persons against whom no specific overt
acts have been proved can be held guilty either with the help of Section 149 of
IPC or with Section 34 of IPC. Their acquittal, therefore, is sustained.
have maintained the acquittal of three co-accused persons, the remaining three
accused persons cannot be convicted under Sections 148 and 149 of IPC and their
acquittal for those charges, therefore, is also sustained.
conclusion, Criminal Appeal No. 815 of 2001 preferred by the three convicted
co-accused, is partly allowed. The conviction of appellant/accused Harjit Singh
(A-1) and sentences imposed on him under Sections 302, 324, 323 & 326 of
IPC are hereby maintained. He is acquitted of charges and sentences imposed on
him under Section 307 read with Sections 148 & 149 of IPC.
conviction of appellant/accused Virenderjit Singh @ Vicky (A-2) under Section
302 and 307 read with Section 34 of IPC is set aside instead he is convicted
under Sections 323, 324 & 326 read with Section 34 of the IPC and he is
sentenced with imprisonment and fine as directed by the trial court in its
judgment. His acquittal by the High Court under Section 148 and 149 of IPC is
conviction of appellant/accused Gursharan Singh (A-6) under Section 302 &
307 read with Section 34 of IPC is set aside instead he is convicted and
sentenced separately as ordered by the trial court with imprisonment and fine
under Sections 326, 324 and 323 of IPC. He is acquitted of charge under Section
34, IPC. His acquittal under section 148 and 149 of IPC is hereby maintained.