Punjab Vs. Rajinder Singh  INSC 1432 (11 August 2009)
SINGH (Criminal Appeal No.1252 of 2006) AUGUST 11, 2009 [HARJIT SINGH BEDI AND
J.M. PANCHAL, JJ.]  13 (ADDL.) SCR 622 The following Order of the Court
This appeal by way of special leave arises out of the judgment and order dated
22.07.2004 in Criminal Appeal No. 481 of 1999 passed by a Division Bench of the
High Court of Punjab and Haryana whereby the High Court had allowed the appeal
filed by the accused-respondent Rajinder Singh setting aside his conviction and
sentence of life imprisonment and fine under Section 302 IPC and under Section
27 of the Arms Act, by giving him the benefit of doubt and had also dismissed
the appeal against acquittal filed by the appellant-State against the acquittal
of Kuldip Singh and Rachhpal Singh, by the Sessions Judge, Faridkot.
facts leading to this appeal are as follows:
- P.W. 2, the father of the deceased- Harinder Kumar was the co-owner of brick
kilns in villages Madooke and Ajitwal with Rajinder Singh, respondent herein.
About one year prior to the occurrence, a settlement had been arrived at
between the parties aforesaid and the brick kiln in village Madooke had fallen
to the share of Madan Lal and the one in Ajitwal to the share of Rajinder
Singh. As per the settlement, a truck bearing registration No. PJB 2155 had
also come to the share of Rajinder Singh who was to pay a sum of Rs. 1,68,000/-
to Madan Lal in lieu thereof. On 30th November, 1995, Madan Lal and his son
Harinder Kumar, the deceased along with P.W. 3 - Shamsher Singh and P.W. 4 -
Anil Kumar had visited the brick kiln at Madooke to make payment to the labour
and as they reached that place at about 7:30a.m., they observed that bricks
were being loaded onto a tractor trolley by Rajinder Singh, and Kuldip Singh
(armed with shotguns) assisted by four or five persons. As soon as the
complainant party intervened Rachhpal Singh who too was present, raised a
lalkara calling on Rajinder Singh to fire on the complainant party. Rajinder
Singh thereupon fired a shot which hit Harinder Kumar near his left eye.
Rachhpal Singh and Kuldip Singh thereafter fired shots towards the complainant
party but on an alarm raised by the latter, the accused ran away firing shots
in the air. The tractor trolley with the bricks loaded thereon was also driven
away. Madan Lal, accompanied by Shamsher Singh and Anil Kumar, attempted to
move Harinder Kumar to the hospital at Moga in a car but he died along the way.
A First Information Report was thereafter lodged by Madan Lal at Police
Station, Mehna. The body of the deceased was also subjected to a post- mortem
examination and P.W. 1 - Dr. Iqbal Singh opined that the injury appeared to
have been caused with a shot from a rifle, though the possibility that it had
been caused with a shot from a 12 bore gun, using single projectile cartridge,
could not be ruled out.
P.W. 9 -
ASI Devinder Singh of P.S. Mehna also visited the place of incident and picked
up two spent cartridges of a .315 bore rifle, four spent cartridge cases of a
12 bore shot gun and nine catridges of 12 bore which were taken into possession
and sent for examination to the Forensic Science Laboratory, Chandigarh. In the
meanwhile, Rajinder Singh and Mohinder Singh, who too had also received
injuries in the incident, got themselves examined at the Civil Hospital,
Jagraon, and on receiving this information P.W.
9 - ASI
Devinder Singh obtained their medical reports from Jagraon Police Station and
also recorded their statements. A rifle of .315 bore belonging to P.W. 4 - Anil
Kumar and a 12 bore gun belonging to P.W. 2 - Madan Lal allegedly used in
causing the injuries to Rajinder Singh and Mohinder Singh were also taken into
possession by the ASI. On the completion of the investigation, Rajinder Singh
was charged for an offence punishable under Section 302 whereas the other
accused were charged under Section 302/34 of the IPC read with Section 120B of
the IPC and all the three were also charged under Section 27 of the Arms Act.
prosecution in support of its case relied on the evidence of P.W. 1 - Dr. Iqbal
Singh, P.W. 2 - Madan Lal, P.W. 3 - Shamsher Singh and P.W. 4 - Anil Kumar, the
last three named being eye witnesses, P.W. 9 - ASI Devinder Singh who had
investigated the case for a day or so and P.W. 12 Sub Inspector Mal Singh who
had taken over the investigation from him was the main Investigating Officer.
The prosecution case was then put to the accused and their statements were
recorded under Section 313 of the Code of Criminal Procedure. They pleaded
false implication. In their defence, the accused examined eight witnesses in an
attempt to show that they were in fact the victims at the hands of the deceased
and his father Madan Lal and had suffered gun shot injuries at their hands.
Sessions Judge, Faridkot in an elaborate judgment held that the participation
of Kuldip Singh and Rachhpal Singh was doubtful as they had not caused any
injury to the deceased and that the three eye witnesses were also discordant as
to their role in the incident. On a philosophical note, the Sessions Judge
settled law is that it is safe to acquit 10 accused persons rather than to
convict one innocent. Weighing the above dictum in the scale of justice, I am
of the considered opinion that when there is a doubt with regard to the
participation of accused Kuldip Singh in the present occurrence, then it is
safe to give him the benefit of doubt and acquit him. Thus by giving him the
benefit of doubt, accused Kuldip Singh is acquitted of the charges framed
Sessions Judge, accordingly, holding Rajinder Singh guilty of murder convicted
and sentenced him under Section 302 of the IPC and under Section 27 of the Arms
Act as already indicated above, but acquitted Kuldip Singh and Rachhpal Singh.
matter was thereafter taken to the High Court by way of two appeals; one by the
State of Punjab challenging the acquittal of Kuldip Singh and Rachhpal Singh
and the other by the convicted accused Rajinder Singh. The High Court by its
judgment dated 07.01.2002 dismissed the appeal filed by the State and allowed
the appeal filed by Rajinder Singh primarily on two grounds:- (i) that as per
the eye witnesses - Madan Lal and Shamsher Singh in particular, the weapon used
in causing the fatal injury was a shot gun but the injury found on the deceased
was by a shot from a rifle; and (ii) that the injuries on the person of
Rajinder Singh and Mohinder Singh had not been explained which cast a doubt on
the entire prosecution story. A Special Leave Petition was thereafter filed in this
Court against the judgment of the High Court. This Petition was dismissed qua
Kuldip Singh and Rachhpal Singh but leave has been granted with respect to
Rajinder Singh, the present respondent, vide order dated 20th November, 2006.
under these circumstances that the matter has come up before us today for final
Singh, the learned counsel for the State has argued that there was no reason
whatsoever to disbelieve the eyewitness accounts given by Madan Lal, Shamsher
Singh and Anil Kumar;
and the third named being close relatives of the deceased, and in that
eventuality any flaw or shortcoming with regard to the medical evidence ought
to have been ignored. He has also submitted that as per the statement of P.W. 1
- Dr. Iqbal Singh who had conducted the post mortem examination on the dead
body, the injury on the person of the deceased could have been caused by a shot
gun using a single projectile cartridge and the finding of the High Court was
also wrong on this aspect as well. He has finally submitted that the
observations of the High Court with respect to the non-explanation of the
injuries on the accused was again based on a mis-appreciation of the evidence
as the injuries could not have been caused to the injured in the manner
suggested by the defence.
Sushil Kumar, the learned senior counsel for the respondent-accused Rajinder
Singh has, however, supported the judgment of the High Court.
be evident, the fate of appeal would primarily rest on the evidence of the
three eye witnesses vis-a-vis the evidence of P.W. 1 - Dr. Iqbal Singh. We have
gone through the judgment of the Sessions Judge and find that he has, in
several places, noticed the argument on behalf of the accused that the doctor's
evidence did not support the use of a shot gun and that the gun shot wound was
perfectly in consonance with the use of a rifle. Faced with this situation, the
Sessions Judge had no option but to hold that Madan Lal who was an old man, had
seen the weapon from some distance and it was possible that he had been unable
to distinguish between a rifle and a shot gun and in the light of the fact that
he had every reason to be present on the spot, the eye witness account was to
be preferred over the doctor's evidence. We are of the opinion that this is
perhaps over simplifying and stretching the matter too far in favour of the
prosecution as Madan Lal had identified the murder weapon as a 'pakki' weapon
which in Punjab's rural dialect always means a 'rifle'. Moreover, the possibility
of a mistake is difficult to swallow for the very significant reason that Madan
Lal and his son Anil Kumar - P.W. 4 were the owners of a shot gun and a rifle
Sessions Judge was also influenced by the fact that the four spent catridge cases
that had been recovered from the place of incident by P.W. 9 - ASI Devinder
Singh on 30th November, 1999 and sent to the Forensic Science Laboratory were
found to have been fired from the licensed shot gun belonging to Rajinder
Singh. We find this observation to be contrary to the record as it is clear
from the report of the Forensic Science Laboratory (Exh. PV) that it had
observed that no conclusive opinion could be given as to the use of Rajinder
Singh's shot gun on account of insufficient identifying characteristics on the
also gone through the medical evidence of P.W. 1 - Dr. Iqbal Singh. He found
the following injury on the dead body:- "A lacerated punctured wound 4cms
X 2.5 cms. margines inverted and colour of abrasion was present and was placed
on the left side of the face on the lower lid and face. Also incorporating. the
left eye bar below the upper eyelid. Grease colour present over the abrasion
colour. the underlying structures that is left eye ball was macerated into unrecognisable
mass. On probing and dissecting the track of the wound was backward and to the
right. On its way it fractured the underlying bone and lacerated meninges and
brain matter till it communicated with the lacerated punctured wound with
everted and irregular margines and of the size of 4cms. X 3cms. placed on the
right lateral side of head just above and anterior to right tragus. The upper
part of pins was dismantled. Meninges and brain matter were driven out through
the exit wound. Clotted blood was present. All other organs were normal."
the ocular account, the shot gun had been fired from a distance of 10 or 12
karm i.e., 50 or 60 feet or about 20 yards. In this situation, and if the
prosecution story was to be accepted the pellets would have entered the body
making individual pellet holes and not en-masse as appears in this case. The
injury being of the head along with single exit wound is compatible with the
use of a rifle and not a shot gun. In Modi's Medical Jurisprudence & Toxicology
23rd Edition, it has been observed:- "At a distance of one to three feet,
small shots make a single aperture with irregular and lacerated edges
corresponding in size to the bore of the muzzle of the gun, as the shot enter
as one mass, but are scattered after entering the wound and cause great damage
to the internal tissues.
surrounding the wounds is blackened, scorched and tattooed, with unburnt grains
of powder. On the other hand, at a distance of six feet, the central aperture
is surrounded by separate openings in an area of about two inches in diameter
made by a few pellets of the shot, which spread out before reaching the mark.
The skin surrounding the aperture may not be blackened or scorched, but is
tattooed to some extent. At a distance of 12 feet, the charge of the shot
spreads widely and enters the body as individual pellets producing separate
openings in an area of five to eight inches in diameter depending on the choke,
but without causing blackening, scorching or tattooing of the surrounding skin.
At a distance of about 50 feet a pattern measuring about 14 inches from a fully
choked barrel and 28 inches from an unchoked barrel are produced and at about
100 feet the spread pattern on the target unchoked one. A rule of thumb in long
usage is that the diameter of the spread of the shot pattern on the skin in
inches is roughly equal to the distance from the muzzle in yards."
true that in cross examination P.W. 1 - Dr. Iqbal Singh stated that the injury
was possible from a rifle as well. However, in view of the categoric statement
in his examination in chief that the injury was possible with a single
projectile 12 bore cartridge the use of a shot gun becomes suspect, as single
projectile cartridges are not available in India and even, otherwise can be
used with a measure of accuracy only in specialised shot guns. We also find
from the statements of P.W. 9 - ASI Devinder Singh the first investigating
officer, that on preliminary investigation he had found that as per the
statement of Mohinder Singh, one of the injured though not an accused, a .315
bore rifle belonging to Anil Kumar and a 12 bore gun belonging to Madan Lal had
been used in the occurence and had caused the injuries including the fatal one
on Harinder Kumar (although as pointed out by Mr. H.M. Singh), this fact had
been denied by Inspector Malinder Singh, the subsequent Investigating Officer.
Be that as it may, in the fact that the eye witness account does not support
the medical evidence and vice versa, we are of the opinion that some serious
doubt is cast on the prosecution story.
also be seen that the second ground taken by the High Court in the impugned
judgment is the non-explanation of the injuries on Rajinder Singh and Mohinder
Singh. The injuries found are given below:- "Mohinder Singh
Obliquely and partially amputated terminal phalanx of right little finger of
right hand. The distal portion of the terminal phalanx of right little finger
had been cut through and through.
raw surface 2.5cmx. X 1.5cm present. Bleeding from the wound was present. cut
and of the terminal phalanx of right little finger was seen and felt in the
Obliquely and partially amputated terminal pahalnx of right ring finger of
right hand the distal portion of the terminal phalanx of right ring finger had
been cut through and through.
surface 2.5 cm X 1.75 cms. (1.75) present.
from the wound was present. Cut end of the terminal phalanx of right ring
finger was seen and felt in the wound.
condition of the injured was satisfactory. Pulse was 78 per minute. BP 120 X 80
mm of HG.
Respiratory rate was 18 per minute. Pubils were equal and reacting. No vomiting
Irregular/lacerated wound 15 cms X 7 cms muscle deep on back of right lower leg
in calf region about 9 cms. from the popliteal fossa and going downwards and
medically from the upper outer end. There was tattooing of skin 1.75 cms X 1.5
cms., on upper and outer part of upper end of a wound and on sides of upper end
of the wound. The heirs were partially burnt in the ara. The upper and outer
end of the wound for 3 cms.
bruised and blackened and the margins of the wound in this area were inverted.
margins of the wound turned inwards at this point that is 3 cms from upper and
outer end. The muscle for about 1.5 cms depth was lacerated. Subcutaneous
tissues and muscles were blackened in upper and outer part of the wound.
Bleeding was present from the wound. There were three holes in the right side
leg of the pyjama and the pyjama was also blood stained. There was blackening
around two smaller holes in the pyjama. X-ray of the right lower leg were
impaired and painful.
was kept under observation and weapon was also kept under observation. The
probable duration of the injury was within 6 hours."
A bare look
at these injuries would reveal that they could not have been self inflicted and
it is not even the suggestion of the prosecution that it was so. The High Court
has, accordingly, held that the prosecution story was clearly suspicious and
fell within the scope of the principles laid down for acquittal in the case of
non- explanation of the injuries on the person of an accused in Lakshmi Singh
v. State of Bihar (1976) 4 SCC 394. The following observations from the
aforesaid judgment are relevant:
murder case, the non-explanation of the injuries sustained by the accused at
the time of the occurrence or in the course of altercation is a very important
circumstance from which the Court can draw the following inferences:- (1) that
the prosecution has suppressed the genesis and the origin of the occurrence and
has thus not presented the true version.
the witnesses, who have denied the presence of the injuries on the person of
the accused are lying on a most material point and therefore their evidence is
in case there is a defence version which explains the injuries on the person of
the accused it is rendered proabable so as to throw doubt on the prosecution
omission on the part of the prosecution to explain the injuries on the person
of the accused assumes much greater importance where the evidence consists of
interested or inimical witnesses or where the defence gives a version which
competes in probability with that of the prosecution one."
yet another circumstance on this aspect which creates suspicion. As per the
defence version, the injuries had been caused by Madan Lal and his son Anil
Kumar to the members of the accused party and a reference to this fact has been
made by P.W. 9 - ASI Devinder Singh in his evidence. It also appears that on
re- investigation two senior police officers D.W. 1 - Manminder Singh, DSP and
D.W. 5 - SP Narinder Pal Singh too had come to the conclusion that the defence
put up by the accused was in fact the correct one and that they had been the
victims of an attack, rather than the other way around.
observe that a shot gun and a rifle (both licensed) belonging to Madan Lal and
Anil Kumar had been taken into possession and though two empty catridges of a
.315 rifle had been recovered about 120 feet away from the spot on the 30th
November, 1999 they had not been sent to the forensic laboratory for comparison
with Anil Kumar's weapon. Mr. Sushil Kumar is, therefore, justified in
submitting that the investigation in this matter was tainted and the defence
version had not even been taken into consideration by the investigating
officer, more particularly when two senior officers had given a report
favourable to the accused.
also examined the scope of inference by this Court with regard to an appeal
against acquittal in State of U.P. v. Banne (2009) 4 SCC 271 wherein after
referring to a large number of cases earlier decided, it was concluded as
are some of the circumstances in which perhaps this Court would be justified in
interfering with the judgment of the High Court, but these are illustrative not
High Court's decision is based on totally erroneous view of law by ignoring the
settled legal position;
High Court's conclusions are contrary to evidence and documents on record;
entire approach of the High Court in dealing with the evidence was patently
illegal leading to grave miscarriage of justice;
High Court's judgment is manifestly unjust and unreasonable based on erroneous
law and facts on the record of the case;
Court must always give proper weight and consideration to the findings of the
Court would be extremely reluctant in interfering with a case when both the Sessions
Court and the High Court have recorded an order of acquittal. "
the parameters aforesaid, we are of the opinion that the judgment of the High
Court calls for no interference. The appeal is dismissed.
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