Full Judgment Text
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PETITIONER:
STATE OF PUNJAB
Vs.
RESPONDENT:
AJAIB SINGH.
DATE OF JUDGMENT20/01/1995
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
SAWANT, P.B.
CITATION:
1995 AIR 975 1995 SCC (2) 486
JT 1995 (1) 433 1995 SCALE (1)286
ACT:
HEADNOTE:
JUDGMENT:
R.M. SAHAI, J.:
1. In this appeal by grant of special leave under Article
136 of the Constitution of India the question that arises
for consideration is whether the Order of acquittal passed
by the High Court of Punjab & Haryana is so palpably
erroneous or perverse that it is liable to interference in
the exercise of extraordinary jurisdiction by, this Court.
2. In an unfortunate incident which took place at 11
P.M. on 16th December, 1976 on the G.T. Road just in front
of Sat Kartar Cold Storage, Phagwara, two police officers of
the Punjab Traffic Police appeared to have fallen out on the
authority to check the truck on the G.T. Road resulting in
death of one Assistant SubInspector of Police and one
constable and conviction of the respondent under Section 302
IPC who was Sub-Inspector of Police at the time of incident,
but since the date of acquittal he has now become Deputy
Superintendent of Police. There was no dispute about the
time, date and place of incident. Nor there was any dispute
that Assistant Sub-Inspector Gumam Singh and constable
Paramjit Singh died as a result of shooting from the service
revolver by the Sub-Inspector Ajaib Singh. The dispute,
mainly, was whether the incident took place as stated by the
prosecution and the shooting and killing by the respondent
was unwarranted, unjustified and deliberate or it was, as
claimed by the respondent, in exercise of right of private
defence. The respondent was tried and convicted under
Section 302 for committing murder of ASI Gumam Singh and
constable Paramjit Singh and sentenced by the trial judge to
undergo life imprisonment. He was also convicted under
Section 27 of the Arms Act and sentenced to undergo two
years’ rigorous imprisonment. All the sentences were to run
concurrently. His
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co-accused Balbir Kumar was tried under Section 302 but
convicted under Section 323 IPC for causing simple hurts to
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constable Jit Ram, P.W. 10, and Channan Singh, P.W. 13. He
was directed to be released on probation. Another accused
constable Jit Singh was acquitted of all charges. The State
did not file any appeal either against release of Balbir
Kumar on probation or acquittal of Jit Singh. But revision
was filed by one Sukattar Singh for enhancing the sentence
of respondent from life imprisonment to death and convicting
others suitably. The High Court dismissed the revision for
enhancing sentence and further acquitted the respondent.
The State is aggrieved by acquittal of the respondent.
Since both the trial judge and the High Court have
considered the evidence in detail, it does not appear neces-
sary to refer to them, except the findings arrived by them
on which there is not much dispute. The findings recorded
by the trial judge were summarised by the High Court as
under:-
"(1) That the incident took place at about 10
P.M. on 15th December, 1976, on the G.T. Road
just opposite to the Sat Kartar Cold Storage
at Phagwara;
(2) That all the three: accused (Ajaib Singh
and Balbir Kumiar appellants and Jit Singh
acquitted accused) were present at the spot
and they had arrived there from the side of
Ludhiana in jeep No. PUJ 250.
(3) That at that time A.S.I. Gurnam Singh
along with Constables Paramjit Singh and Jit
Ram was present at the spot. According to the
prosecution version, Constable Chanan Singh,
P.W. was also with them. However, that fact
is denied by the accused.
(4) That before the main incident took
place, a verbal altercation took place between
A.S.I. Gurnam Singh deceased and S.I. Ajaib
Singh accused and thereafter they also
grappled with each other for some time.
(5) That S.I. Ajaib Singh fired three shots
with his service revolver, one of which hit
A.S.I. Gurnam Singh and another hit Constable
Paramjit Singh and as a result thereof both of
them had died at the spot. The third shot hit
the shutter of the cycle shop of Subhash Chand
situated near the place of the occurrence."
Apart from these findings, the trial judge held that the
delay in lodging the FIR was not satisfactorily explained by
the prosecution. He did not believe that the two constables
who had accompanied the deceased would have hid themselves
in the nearby field for the whole night and then lodged the
report at 8.40 A.M. in the morning only after they came out
from the field. The trial judge was not convinced that any
reasonable person could have remained in the field in the
wintery night on 16th December without any covering when the
accused undisputedly left the place immediately after the
incident. Another important finding recorded by the trial
judge was that the version of the origin of the incident, as
given by the accused, was acceptable in preference to one
put forward by the prosecution. The trial judge did not
believe that the deceased was caught hold of by Balbir Singh
and Jit Singh and thereafter the respondent fired the shot.
Nor did it find any truth in the version of the prosecution
that Paramjit Singh was thrown down on the ground by Bzabir
Singh and Jit Kumar and then a shot was fired at him from
point blank range by the respondent. But the conviction was
based
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as the injuries found on the person of the respondent did
not justify exercise of right of private defence.
3. The High Cowl while agreeing with the findings of the
trial judge on these aspects further held that the story
given by the prosecution that the deceased had gone to the
spot for nakabandi for apprehending the robbers did not
inspire confidence as there was no entry to that effect in
the Rojnamacha (daily diary) of the Police Station,
Kapurthala. The High Court held that no material was
brought on record to prove the First Information Report of
the case in which those robbers were wanted. Further,
according to the High Court, it was not reasonable to
believe that Assistant Sub-Inspector Gurnam Singh accom-
pained by congables would have gone on such a dangerous
mission without any arm, except the service revolver with
him. The High Court categorically concluded that the
deceased and his companions were checking the trucks on the
G.T. Road and extracting money from the truck drivers,
’therefore the respondent must have &It offended because it
amounted to not only an unnecessary interference in the
sphere of his jurisdiction but even to an illegal act of
extorting money from the drivers of the vehicles by them.
In this situation, when Ajaib Singh, accused, questions
A.S.I. Gurnam Singh regarding his and his companions’
misconduct, an altercation must have ensued between both of
them which was the cause of the main occurrence. Thus, the
version of the origin of the occurrence as given out by the
accused appears to be more probable than the version of the
same as put forth by the prosecution. It has been even so
held by the trial court in its impugned judgment’. Ile High
Court reversed the finding of the trial judge that the
injuries on the person of the respondent were self inflicted
as reference in this behalf be made to the statement of Dr.
Ashwani Kumar, P.W. 3. The aforesaid injuries received by
the members of the either party do not appear to have been
self suffered by them. The learned trial Court has found
that the injuries of S.I. Ajaib Singh could be self suffered
as deposed to by the doctor. But this finding appears to be
incorrect because even with regard to the injuries of
constables Jit Ram and Chanan Singh, the doctor has opined
that those would also be self suffered. It is not
understandable how the learned trial Court in spite of that
medical evidence has held that the injuries of Constable Jit
Ram and Chanan Singh P.Ws. could not be self suffered. The
High Court found that it appeared that Sub-Inspector Balbir
Kumar of the accused party and constables Paramjit Singh,
Jit Ram and Chhanan Singh of the deceased party were armed
with dandas at the time of occurrence and they probably used
the same against their opponents. The High Court also
placed reliance on the report of forensic expert that shots
had been fired from the revolver of ASI Gurnam Singh. It
did not believe the Version of prosecution that in fact the
revolver of Gurnam Singh was not taken out from the holster
because when the investigating officer went at the spot he
found it bolted with the belt inside the woollen overcoat.
The High Court consequently was of the opinion that the act
of shooting was within the scope of ClausesI and II of the
exception as contained in Section 100 of the IPC and,
therefore, the respondent was entitled to acquittal.
4.When this appeal was heard carlier, late Sri R.K. Garg,
the senior counsel who appeared for the respondent in ab-
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sence of Sri Virender Kumar, the learned senior counsel who
appeared for the appellant, placed the entire record and
urged that no previous enemity between the respondent and
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the deceased was found even by the trial judge and it was a
case of mistaken identity for which it was the deceased
himself who was responsible. The learned counsel had urged
that even the trial Judge had found that the respondent had
the right of private defence. But the conviction was
founded as the deceased and his companions had used dandas
whereas the respondent had used firearms. lie argued that
the delay in criminal cases should not be lost sight of
According to him, at this distance of time it was just and
expedient to compensate the deceased family monetarily
instead of entering into whether the respondent was liable
to be convicted. He even offered a sum of Rs. 5 lakh not as
a cover or an excuse but as a genuine feeling of remorse for
what happened under mistaken belief. But when the appeals
were listed on the next date Sri Virender Kumar appeared and
stated that his clients refused to be compensated in terms
of money He urged that he would like to ague and convince
that a was case of cold blooded murden we accepted his
request and the appeals were fixed for hearing afresh.
5. Sri Virendra Kumar, the learned senior counsel,
vehemently argued that the High Court has acted
perversely as once it found that the revolver of the
deceased was in his holster, the entire defence version fell
to the ground. Learned counsel urged that even if it is
assumed as held by the High Court that the respondent and
the accused had grappled in which dandas were used which
caused injuries to the respondent it did not give him the
right of private defence to shoot ASI Gurnam Singh and
Constable Paramjit Singh. The learned counsel urged that
the report of the forensic expert could not be relied on as
the mere fact that shots were fired from it, could not
establish that it was used at the time of the incident.
According to learned counsel, once the incident was admitted
the burden was on the respondent to establish that he acted
in exercise of right of private defence. He vehemently
urged that in it case where it was found that the deceased
party had not used any fire arm the respondent was not
justified in shooting and killing two persons. It was
argued that it was a cold blooded murder as was apparent
from the nature of injuries. He urged that the shot in the
forehead and that also through and through indicated that
the firing was done from a close range when the deceased had
been rendered helpless. On the other hand, Sri U.R. Lalit,
the learned senior counsel for the accused, placed reliance
on the findings recorded by the trial judge and the High
Court and urged that once the prosecution version was
disbelieved, the respondent could not be convicted on the
plea taken by him in defence. It was submitted that in any
case it cannot be said that in the facts and circumstances
of the case the finding recorded by the High Court was
perverse or palpably erroneous. He urged that the incident
was of 1976 He appellant was acquitted by the High Court in
1980. In consequence of it he has been reinstated and is
working as Deputy Superintendent of Police. He, therefore,
pleaded for maintaining the order of the High Court.
6. Prior to adjudicating on the rival submissions, it
appears necessary to preface it with few observations
general in nature but vital according to us. Although
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crime never dies nor there should be an sympathy for the
criminal, yet human factors play an important role and
reflect advertently or inadvertently in the decision making
process. In this appeal there is a time lag of more than
eighteen years from the date of incident and nearly fifteen
years from the date of acquittal and its hearing. By any
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standard it is shocking. And this has been aggravated by
still more shocking behaviour of the Government which shall
be adverted later. Speedy trial, early hearing and quick
disposal are sine qua non of criminal jurisprudence. In
some countries like England days are fixed statutorily for
trial of cases. Keeping an accused in custody for a day
more than it is necessary, is constitutionally impermissible
and violative of human dignity, freedom of life and liberty.
The overcrowded court dockets, the phenomenal rise of public
interest litigation, duty to ensure enforcement of
fundamental rights undoubtedly keeps this court under stress
and strain. But that cannot be an excuse for keeping the
sword of Damocles hanging on the accused for an indefinite
period of time. It does not do any credit rather makes one
sad. If the accused is not granted bail and serves out the
sentence then the appeal is rendered academic for all
practical purposes. And the right to establish innocence
fades away in lack of enthusiasm and interest. If he is
granted bail then long delay may give rise to humane
considerations. Time heals the gravest scar and mitigates
deepest injury suffered physically, mentally and
emotionally. Therefore, if the courts have been rendered
helpless and the exasperating delay is threatening to cat
away the system then the Government may consider either to
increase the strength to clear the backlog or devise some
mechanism by which criminal appeals pending for more than
reasonable time in higher courts should stand disposed of
7. That the incident was shocking admits of no doubt. May
be sitting as the appellate court the task was not easy.
But where the High Court has set aside the conviction under
Section 302 IPC after delving in depth and discussing
evidence in detail, should this Court interfere, merely,
because there could have been other view? We agree that
this Court is not precluded or the Court hearing appeal
against acquittal is not prevented from examining and
reappreciating the evidence on record. But the duty of a
court hearing appeal against acquittal in the first instance
is to satisfy itself if the view taken by acquitting court
exercising appellate jurisdiction was possible view or not.
And if the court comes to conclusion that it was not, it can
on reappreciation of evidence reverse the order. What had
persuaded us to rehear the appeal was that the revolver of
the deceased was in the holster beneath the overcoat. At
the first flush, it appeared to be a clinching circumstance.
But even after accepting this and ignoring the opinion of
forensic expert, the finding of the High Court is neither
rendered perverse nor infirm nor palpably erroneous. It
having been found by both the High Court and the Trial Judge
that the defence version that the respondent received the
information from a truck passing from that direction that
some persons in the police uniform were forcibly collecting
money from the truck drivers whereupon the respondent
reached there, challenged the deceased who did not disclose
his identity rather tried to move towards the car giving an
impression that he was about to run ,away whereupon the
respondent rushed to-
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wards him, grappled with him and was injured with danda
blows used by three companions of the ASI, it is very
difficult to say, as held by the High Court, that he had not
developed a reasonable apprehension that if Ewe arm was not
used he was himself likely to be killed. The respondent had
nine injuries. They have been found not to be self-
inflicted. He was attacked by the deceased and his compan-
ions. The Trial Judge found that there was no previous
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enmity. The submission that the respondent was not entitled
to use firearm as he was attacked by dandas only cannot be
accepted. That is not what is provided for by clauses (1)
and (11) of Section 100 of the IPC. It shall depend on
facts of each case whether the assault was such as could
cause reasonable apprehension that death would otherwise be
the consequence of such assault. If die High Court found
that the respondent was assaulted by three persons with
dandas, and hence the accused developed a reasonable ap-
prehension that if he did not use the fire arm then death
would be the consequence it cannot be said that the High
Court guilty of taking palpably erroneous view In any case,
the prosecution could succeed on the strength of its own
case and that, as observed earlier, has not bee found to be
authentic even by the trial judge. The conviction being
solely base on failure to establish that the respondent had
not exceeded his right of self-defence, it would not be an
exercise of sound discretion to interfere with the order
passed by the High Court.
8.Before closing this case, we shall be failing in our duty
if we do not record our serious disapproval of the manner in
which the Government not only reinstated but promoted the
officer when the appel by it against his acquittal was
pending in this Court. In our opinion the Government would
have been well advised to adopt the scaled cover procedure,
a firmly established and well known practice in service law
Murder by a police officer is provocative. The trial of the
officer and conduct of the Government both are in public
glare. It is not the competency or efficiency of the
officer but his conduct and behaviour and approach of the
Government towards such officer which is measured in social
scale. Such unwarranted actions of the Government shakes
the confidence of common man in the system. He loses faith
in it when a person who is standing trial in appeal is
promoted.
9. For the reasons stated above this appeal fails and is
dismissed. The respondent shall deposit a sum of Rs. 5
lakhs within a period of one month from today with the
Registrar of the High Court as was offered on his behalf
earlier. Out of this amount, Rs. 3,50,000/- will be paid to
the dependents of ASI Gumam Singh and Rs. 1,50,000/- to the
dependents of constable Paramjit Singh.
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