Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
CASE NO.:
Appeal (crl.) 130 of 2000
PETITIONER:
State of Punjab
RESPONDENT:
Hakam Singh
DATE OF JUDGMENT: 31/08/2005
BENCH:
B.N. AGRAWAL & A.K. MATHUR
JUDGMENT:
J U D G M E N T
A.K. MATHUR, J.
This Criminal Appeal filed by the State of Punjab is
directed against the judgment and order of acquittal dated April 18,
1996 whereby the Division Bench of the Punjab & Haryana High
Court has acquitted the respondent- accused Hakam Singh from the
charge under Section 302 of the Indian Penal Code (hereinafter to
be referred to as the ’I.P.C.’) for committing the murder of the
deceased Harbans Singh. Learned Sessions Judge, Bhatinda
convicted the respondent- Hakam Singh under Section 302 I.P.C.
and sentenced him to undergo imprisonment for life and to pay a fine
of Rs.2,000/-. In default of payment of fine the respondent was
directed to undergo a further imprisonment for four months. Learned
Sessions Judge also convicted the respondent under section 302/34
I.P.C. in respect of the death of Mohinder Singh and sentenced him
to undergo imprisonment for life and a fine of Rs.2000/-, the
respondent was also convicted under Section 307/34 I.P.C for
causing injuries to Sadhu Singh and was sentenced to suffer rigorous
imprisonment for a period of seven years and to pay a fine of
Rs.2000/-; in default of payment of fine, the respondent was to
undergo further rigorous imprisonment for four months. The
respondent was also convicted under Section 449 I.P.C. and was
sentenced to undergo rigorous imprisonment for a period of five years
and to pay a fine of Rs.1000/- ;in default of payment of fine the
respondent was to undergo R.I. for two months. All the substantive
sentences were directed to run concurrently. Learned Sessions
Judge acquitted the remaining accused persons i.e. Mander Singh,
Nachhatar Singh and Bikkar Singh. The High Court has dismissed
the criminal revision filed by Harbans Kaur-the wife of the deceased,
Harbans Singh for compensation. We are not concerned with regard
to the acquittal of the remaining accused persons as there is no
State appeal before us.Therefore, we are concerned in the present
State Appeal with regard to the acquittal of the respondent- Hakam
Singh.
The prosecution case, in brief, was that an F.I.R. was
registered on the statement of Jagdev Singh (deceased), the brother
of deceased Harbans Singh on 25.8.1990. That Jagdev Singh,
Harbans Singh and Sadhu Singh were brothers. While Harbans
Singh and Jagdev Singh lived in the same house, Sadhu Singh lived
in a separate house. Sadhu Singh and Jagdev Singh had licenced
.12 bore guns. They purchased about 15 marlas of land on which
accused Bikkar Singh and others had heaped their manure. On
24.8.1990 a village Panchayat was convened for getting the land
vacated. In the said Panchayat meeting it was decided that they
should vacate the land after getting it demarcated by the Patwari. On
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
25.8.1990 at about 9.30 A.M. Harbans Singh (deceased) and
complainant Jagdev Singh were present in their house when
respondent \026 Hakam Singh armed with a .303 bore rifle while other
accused - Mander Singh and Nachhatar Singh @ Pamma each
armed with a .12 bore double barrel gun along with other assailants \026
Darshan Singh armed with a .315 bore rifle and Bhola Singh armed
with a .12 bore single barrel gun entered their house raising ’lalkara’
(shouting). Bhola Singh immediately on reaching there, fired a shot
and abused them saying , "come out, we will deliver you the
possession of the place of manure heaps". Harbans Singh rushed
into the house and brought a licenced gun of the complainant, Jagdev
Singh. Respondent- Hakam Singh then fired a shot with his .303
bore rifle at Harbans Singh which hit his left buttock and pierced
through his groins. In that injured condition, Harbans Singh fired a
shot with his gun in self defence which hit Bhola Singh. On hearing
the noise of the fire shots, other brother Sadhu Singh came out of his
house. Accused Darshan Singh fired a shot with his .315 bore rifle at
Sadhu Singh which hit him on his right arm. Sadhu Singh ran away
from there and entered in his house and thereafter scaling his wall
and entered into the house of Mohinder Singh. Mohinder Singh
came out from his house and ran towards the street. One of the
assailants namely Darshan Singh fired a shot with his.315 bore gun
at Mohinder Singh which hit on his back. The accused persons kept
on firing shots with their respective guns. Jagdev Singh witnessed the
entire incident from the roof of his house clandestinely. It is alleged
that on hearing the alarm, P.W.5- Baldev Singh ( son of Mohinder
Singh, deceased) and others reached there to save them Mohinder
Singh and Bhola Singh died at the spot. Jagdev Singh sent his
brothers, Sadhu Singh and Harbans Singh to the Civil Hospital,
Bhatinda in a tractor trolley along with his sister-in-law, Malkiat Kaur
and Harbans Kaur. Jagdev Singh went to the Police- station and
lodged the report which was recorded by the S.H.O.- Satwant Singh
(P.W.7). The said report was treated as the formal F.I.R. and special
report was sent to the Judicial Magistrate on the same day at 8.00
p.m. Though originally Nachhatar Singh was not one of the accused
but after the examination of Jagdev Singh, the complainant, accused
Nachhatar Singh @ Pamma was also put on trial. But Jagdev Singh
died subsequently and therefore, his evidence could not be recorded
in the Court. Darshan Singh was declared as a proclaimed offender.
The accused persons pleaded not guilty and put their version of the
incident.
The prosecution in its support examined number of witnesses
but primarily, the star witness was P.W.1, Dr.Gupta, P.W.2 Dr.Malik
and P.W.3- Harbans Kaur the wife of the deceased Harbans Singh.
Sadhu Singh, the injured eye witness as P.W.4, Baldev Singh
(P.W.5), son of Mohinder Singh, Sub-Inspector- Satwant Singh,
S.H.O. as P.W.7 was the Investigating Officer. Though Jagdev Singh
was also one of the witnesses on whose complaint the F.I.R. was
registered but he died before the trial and as such his statement
could not be recorded. Prosecution examined other formal witnesses
also.
Learned Sessions Judge after completion of the trial convicted
the respondent- Hakam Singh under Section 302 I.P.C. for causing
the death of Harbans Singh and also convicted under Section 302
read with Section 34 I.P.C. in respect of the murder of Mohinder
Singh and also convicted under Section 449 I.P.C. for entering into
the house of Harbans Singh with a view to murder him. The
respondent \026 Hakam Singh was also found guilty under Section
307/34 I.P.C. in respect of the injuries caused to Sadhu Singh which
were in fact caused by companion Darshan Singh. Aggrieved against
this conviction, the respondent- Hakam Singh filed an appeal before
the High Court of Punjab & Haryana and no State appeal was filed
by the State against acquittal of other accused persons. The High
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
Court acquitted the respondent- accused Hakam Singh from all the
charges. Hence the present State Appeal against acquittal of
accused Hakam Singh.
Learned counsel for the appellant- State has taken us to the
statements of P.W.3- Harbans Kaur, P.W.4 \026 Sadhu Singh, P.W.5 \026
Baldev Singh and P.W.7- the Investigating Officer. He has submitted
that P.W.3- Harbans Kaur who is the wife of the deceased Harbans
Singh is a reliable witness and her testimony has been wrongly
discarded without proper appreciation of evidence by the High Court
as a result of which grave injustice has taken place. As against this,
learned Senior counsel for the respondent has seriously contested
and submitted that the appreciation of the evidence done by the High
Court was correct and there is no reason to reverse the order of
acquittal of the respondent- Hakam Singh. Learned counsel for the
respondent submitted that it is settled principle of law that the
appreciation of evidence which has been done by the High Court if
not perverse then this Court should not interfere with the order of
acquittal in appeal. Learned counsel further submitted that this Court
is always very slow in interfering with the order of acquittal unless
there is sufficient reasons. Learned counsel further submitted that
the trial court has not believed the evidence of the other witnesses
though believed the evidence of P.W.3 and P.W.4 partly. Therefore,
the view taken by the High Court in acquitting the respondent is not
perverse. The High Court has correctly appreciated the material
contradictions in the testimony of P.Ws. 3 and 4 and has rightly given
the benefit of doubt to the respondent. Learned counsel for the
respondent further submitted that the prosecution story does not tally
with the medical evidence. It was also pointed out that there was a
delay in sending the report to the Magistrate which reached him at
8.00 P.M. whereas the incidence took place at about 9.30 A.M. and
the F.I.R. was lodged at 10.00 A.M. It was pointed out by learned
counsel that the defence theory put up by the respondent is more
plausible and in the given case the High Court has rightly appreciated
the evidence and acquitted the respondent. It was also pointed out
that the injuries on Bhola Singh was not explained and as to how
Bhola Singh received the second injury with fire arm. It was further
pointed that no report was sought for from the Ballistic expert about
the guns and recoveries of the empties recovered from the scene of
occurrence. It was also pointed out that the blood stained clothes of
Harbans Kaur were not seized nor blood stains from all places. Under
these circumstances learned counsel for the respondent has
submitted that looking to the material contradictions and negligence
on the part of the investigating agency in not seizing the arms and
ammunitions and not seizing the empties from the site and in not
seizing the blood stained clothes of Harbans Kaur, the High Court
has rightly given the benefit of doubt to the respondent. Learned
counsel for the respondent invited our attention to the following
decisions of this Court.
1. (2002) 9 SCC 356- State of Haryana v. Sher Singh & Ors.
2. (2004) 9 SCC 310 \026 State of U.P. v. Ram Bahadur Singh
and others.
3. (2004) 12 SCC 398- Chanakya Dhibar (Dead) v. State of
WB.& Ors.
4. JT 2004 (4) SC 80- Vijaybhai Bhanabhai Patel v.
Navnitbhai Nathubhai Patel & Ors.
In fact, all these cases which have been cited by learned counsel for
the respondent are with regard to the principle laid down by this
Court. As far as legal propositions are concerned, there is no two
opinion in our mind. But whether the ratio of these decisions will help
the respondent in the present case will be examined by us herein
after.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
In order to appreciate the prosecution case we shall examine
the statement of P.W.3- Harbans Kaur, the wife of the deceased
Harbans Singh who unfolded the whole drama as it happened in her
house. In fact, we are primarily concerned in the present appeal
against acquittal of Hakam Singh only.
P.W.3- Harbans Kaur has deposed that on the fateful day at
about 9.30 A.M. when her husband, Harbans Singh the deceased
and his brother Jagdev Singh were present in their house at that time
Darshan Singh , Bhola Singh (deceased), Nachhatar Singh @
Pamma Singh, Mander Singh and Hakam Singh came in front of their
house and all of them entered inside the outer gate of the house.
Hakam Singh and Darshan Singh had rifles while the remaining
accused were armed with 12 bore guns. It is alleged that at the time
of entering into their house Darsan Singh and Bhola Singh started
raising ’Lalkar’ saying that they would teach them a lesson for taking
possession of the plot of Bikker Singh. First of all Bhola Singh fired a
shot from his gun. That shot was aimed at them i.e. her and her
husband but it did not hit. Meanwhile, her husband, Harbans Singh
picked up the licensed gun of his younger brother Jagdev Singh from
inside the house. Her husband Harbans Singh stepped forward up to
a distance of 5/7 Karams towards the side of the accused with the
licensed gun of Jagdev Singh but Hakam Singh aimed the gun
towards her husband. Thereafter, her husband-Harbans Singh
retraced his steps and took a turn, but respondent Hakam Singh fired
a shot from his gun hitting on the back side of the buttock of her
husband, Harbans Singh. Then Harbans Singh fired two shots from
the licensed gun of Jagdev Singh in self-defence. One shot hit on the
flank and the other on the head of Bhola Singh. The accused party
then started taking care of their companion Bhola Singh who was
injured. Thereafter, she put a jaffa around her husband, Harbans
Singh and took him inside the baithak for his safety and bolted the
door from inside. Thereafter, it is alleged that multiple shots were
fired but she did not open the door. After some time accused
persons left that place. Thereafter Jagdev Singh came down and
knocked the door and on recognizing his voice she opened the door.
Jagdev Singh left the house to find out the welfare of Sadhu Singh
who is the brother of the deceased, Harbans Singh and he came to
know that Sadhu Singh has also received injuries. Thereafter a
tractor trolley was brought and Harbans Singh was placed in injured
condition inside the tractor trolley along with Sadhu Singh and they
took them to the hospital. Jagdev Singh went to the Police-station to
lodged the F.I.R. Meanwhile, Harbans Singh died on the way. This
is the long and short story of P.W.3, Harbans Kaur an eye witness
who has seen the death of her husband and she unsuccessfully tried
to save her husband. Her testimony has been put to a very close
cross-examination and during the cross-examination she was
confronted with her statement under Section 161 of the Code of
Criminal Procedure. Attempt was made to discredit her testimony as
to the fire arms used by the respondent i.e. whether the gun from
which the respondent fired was a .303 bore rifle or a 12 bore double
barrel gun and the manner of firing in which Bhola Singh received
two injuries; one from the gun and the other from the rifle and that
whether the deceased Harbans Singh was competent to fire the shot
and that her blood stained clothes were not recovered by the Police,
in order to discredit her testimony. After closely going through the
statement of P.W.3 we are of the opinion that P.W.3 is a truthful
witness and unsuccessful attempt of the defence to confront her with
different types of fire arms i.e. whether it was a rifle or it was a gun
shot injury fired through 12 bore gun or .303 rifle; all this cross-
examination was directed against this rustic villager in order to
discredit her testimony. This is most unrealistic approach. We fail to
appreciate how can a rustic village lady would explain about bore of
gun or rifle. P.W.3 whose presence in the house was quite natural
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
and she having clearly identified the respondent who fired the gun at
her husband should be enough to establish the factum of whole
prosecution story. To expect from her to give the description in a
photogenic manner is asking too much. The High Court instead of
entering into split hairing the testimony of this witness with regard to
the fire arms used in the occurrence should have concentrated more
on the hard truth of the matter instead of finding fault with her
testimony. We fail to understand the manner in which the testimony
of this witness has been appreciated by the High Court. Sometimes
while appreciating the testimony of rustic villagers we are liable to
commit mistake by loosing sight of their rural background and try to
appreciate testimony from our rational angle. When a lady is
confronted with number of intruder in her house armed with deadly
weapons and showering bullets she can not give a very accurate and
photogenic version as whole thing happened in a few minutes.
Therefore, while appreciating such testimony Court should give due
regard to their rural background and the whole scenario in which the
incident happened. She has narrated the whole incident as it
happened and also stated that her husband also fired and that shot
killed Bhola Singh.That lends considerable support to the testimony
of this witness. She was only witness at the occurrence and she has
stated what has happened in her house and none was there except
Jagdev Singh who had escaped for his life by going out of the house
but unfortunately he died. An attempt was made to discredit her
testimony with regard to the second injury caused to deceased Bhola
Singh. It is contended that Bhola Singh received two gun shot
injuries; one is gun shot injury and the other is a shot from the rifle.
How can she account for rifle injury when there was firing spree was
going on and other assailants were armed with guns and rifle. She
has categorically stated that her husband fired two shots from the
licensed gun of Jagdev Singh in self defence, one shot hit on the
flank and the other hit on the head of Bhola Singh, but the attempt
made by the defence to discredit her testimony on the score of
second injury received by deceased Bhola Singh is of no avail. If she
really wanted to give a wrong version of incident she could have
totally exonerated her husband . But she has categorically stated that
the shot fired by her husband from the gun hit Bhola Singh. Whether
both the shots fired by her husband hit Bhola Singh or one, she
cannot depose in such a photogenic manner. But she admitted that
one of the shots hit Bhola Singh when there was exchange of fire
from the accused side. She had categorically deposed that Hakam
Singh fired a shot from the rifle hitting on the back side of the buttock
of her deceased husband, Harbans Singh. Attempt was also made to
discredit her testimony with regard to the medical evidence that
when the deceased sustained the injuries from a fire arm from the
rifle of Hakam Singh he could not have fired shots from the gun and
the Police did not recover the blood from the place of incident and the
blood-stained clothes of P.W.3 were also not collected by the Police.
So far as the medical evidence is concerned, P.W.2 is
Dr.S.K.Gupta who conducted the post-mortem examination. P.W.2 no
where says that Harbans Singh was incapable of firing shot, likewise
Dr.Malik. Moreover, whenever there is conflict between medical
evidence and ocular testimony normally ocular testimony should be
preferred unless it belies fundamental facts. Moreover when the
ocular testimony of P.W.3 which speaks volume that her husband
fired two gun shots which proved fatal so far as Bhola Singh is
concerned, that leaves no manner of doubt that the gun shots were
fired by Harbans Singh. If this witness wanted she could have saved
her husband by saying that the shot fired by her husband did not hit
Bhola Singh, the deceased. Therefore, so far as the truthfulness of
the testimony of this witness is concerned, it is beyond doubt,
secondly why should she wrongly state the facts because her
husband was already dead and she would be the least person to
wrongly involve a wrong person.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
It was also contended the copy of F.I.R. reached
Magistrate late. It is true it was belated one but this alone is not
enough in the present case to be fatal.
P.W.4 - Sadhu Singh was injured witness. He has deposed
that the whole incident took place in the house of deceased Harbans
Singh. He heard the sound of firearm, he came out of his house and
he saw all the accused persons and when accused person saw him,
Darshan Singh fired two shots immediately. One of the shots hit him
on his right arm but some how he managed to enter his house and
bolted from inside. Then he climbed down to the house of Mohinder
Singh with the help of his wife. So far as the testimony of P.W.4 is
concerned, it stands fully corroborated that these accused persons
were firing at the house of his brothers, Harbans Singh and Jagdev
Singh and when he came out to find out the cause, he also fell victim
to these accused persons. He has only witnessed the incident to the
extent of shots being fired by the accused persons He could not
see what happened inside the house Therefore, he corroborates the
testimony of P.W.3 \026 Harbans Kaur to this extent. Therefore, so far
as the testimony of P.W. 3 is concerned, she is truthful witness. She
is wholly reliable witness and there is no reason to disbelieve her.
The High Court has disbelieved her testimony on the grounds
i.e. on the manner of firing and recovery of the guns, non seizure of
blood stained clothes but these short-comings hardly impeach her
testimony In order to impeach her testimony technical questions
were asked to her which was not the correct approach for discarding
her testimony. Therefore, we are of the opinion that the High Court
has committed an error in discarding the testimony of this witness on
technical grounds de hors the factual statement given by her.
Learned counsel for the respondent has also tried to make out
that the defence version is more probable. The defence version was
that in fact Bhola Singh who was coming for bus stop was first
attacked by the prosecution party and in retaliation the accused
persons went there and that the prosecution could not explain the
second injury to the deceased Bhola Singh. We do not think that the
defence version improbablises the prosecution story. It is just an
afterthought theory put up by the defence to improbablise the
prosecution story. But the facts as mentioned above particularly the
testimony of P.Ws. 3 & 4 sufficiently lend support to the prosecution
story.
It was also pointed out by learned counsel for the respondent
that no fire arms were recovered and no seizure has been made of
empties. It would have been better if this was done and it would
have corroborated the prosecution story. Seizure of the fire arms and
recovering the empties and sending them for examination by the
Ballistic expert would have only corroborated the prosecution case
but by not sending them to the Ballistic expert in the present case is
not fatal in view of the categorical testimony of P.W. 3 about the
whole incident.
During the course of investigation a serious doubt was cast on
the fair investigation by the Investigating Officer and the investigating
Officer was subsequently changed but that does not render the
testimony of P.W.3 unreliable. After going through the testimony of
P.W.3, the wife of the deceased, Harbans Kaur it leaves no manner
of doubt in our mind that she is a truthful witness and her testimony
fully supports the case of the prosecution. The technical grounds
sought to be utilized by the High Court in discarding the testimony of
this witness no where shakes the truthful version given out by P.W.3,
Harbans Kaur. Therefore, we are of opinion that the conviction of
Hakam Singh under Section 302, I.P.C. by the trial court for causing
the death of Harbans Singh was correct and it should not have been
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
reversed by the High Court.
Now, coming to the question of trespass, that offence also fully
stands established on the basis of the testimony of P.W. 3, Harbans
Kaur that all alleged trespassed into her house to cause murderous
assault on her husband.
The injury caused to Sadhu Singh, there is no two opinion that
P.W.4, Sadhu Singh has categorically stated in his testimony that
the shots were fired by one Darshan Singh one of which hit him on
his arm. Therefore, the conviction of the respondent under Section
307/34 I.P.C. is established and there is no reason to disbelieve this
witness.
Now, coming to the conviction of Hakam Singh so far as
causing the death of Mohinder Singh under section 302 I.P.C. read
with Section 34 I.P.C. is concerned, the only evidence is that of
Sadhu Singh and he has deposed that he has seen the whole
incident from the house of deceased Mohinder Singh from the iron
grill which as per the finding is that there is no iron grill in the house
from where he could witness the whole incident. Secondly, the
testimony of PW-5 Baldev Singh, son of deceased Mohinder Singh is
also not convincing as he could witness the whole incident from
long distance. Therefore, we do not think that charge under section
302 I.P.C. read with Section 34 I.P.C. can be upheld against Hakam
Singh for causing the death of deceased Mohinder Singh Therefore,
order of the High Court acquitting the respondent of this charge is
upheld.
For the foregoing reasons, the appeal is allowed in part, Order
of acquittal rendered by the High Court is partly set aside and the
judgment of conviction of respondent in relation to the charges under
Sections 302, 307/34 and 449 I.P.C. is restored. And if any fine is
recovered then that shall be paid to PW-3 Harbans Kaur.
Bail bonds of the respondent are cancelled and he is directed
to be taken into custody forthwith to serve out the remaining period
of sentence.