Full Judgment Text
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PETITIONER:
HAZARA SINGH & ORS.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT04/02/1971
BENCH:
[K. S. HEGDE AND A. N. GROVER, JJ.]
ACT:
Indian Penal Code, ss. 307, 146, 148 and 349-Miscreants
firing shots on police party in darkness-No evidence that
shots were fired in direction of members of police party-
Offence of attempt to murder could not be said to be made
out-Firing of such shots is not use of force as defined in
s. 349-Offenders even though more than five do not commit a
riot within meaning of s. 146-Cannot be held guilty of
offence under s. 148.
Evidence-Excessive similarity between evidence of two
witnesses-Inference of tutoring can be drawn specially when
the witnesses are clearly not independent.
HEADNOTE:
The six appellants were challenged by a police party when
they were proceeding towards Pakistan territory with
contraband goods. Two of them, H and B, had fire-arms with
which they fired shots. No member of the police party was
injured. There was darkness except for a temporary
illumination created by the firing of two shots from a light
pistol. The police claimed to have recognised H and B, in
this light even though they fled away from the scene. The
remaining four persons were arrested ,on the spot. H and B,
were arrested later and on their pointing out, two
unlicensed arms were recovered. The Sessions Judge held H
and B, to be guilty under s. 307 of the Indian Penal Code as
well as s. 25 of the Arms Act. The remaining four
appellants were convicted under s. 307 read with s. 149
I.P.C. All the appellants were convicted under s. 148. The
High Court maintained the convictions of the appellants
though in the ,case of those without fire arms it reduced
the sentences., With special leave the appellants filed
appeals in this Court,
HELD : (1) From the evidence it was quite clear that the
shots which were fired by H and B, were not fired during the
few seconds there was light as a result of the light pistol
shots. In other words the shots were fired in complete
darkness when it was not possible for any member of police
party to see the direction in which they were fired or the
aim which was taken by H and B. It was not possible to say
from this evidence that H and B fired the shots in the
direction of the police party or at them and the possibility
that the shots were fired in the air could not be excluded.
Thus the conviction under s.’307 of H and B and of the other
appellants under s. 307 read with s. 149 could not be
maintained.[678 B-D]
(2)Rioting is defined by s. 146 which provides that
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whenever force or violence is used by an unlawful assembly
or any member thereof in prosecution of the common object of
such assembly every member of such assembly is guilty of the
offence of rioting. Section 349 gives the meaning ,of the
word ’force’. In the present incident no force or violence
was proved to have been used by the appellants in
prosecution of the common ,object of the unlawful assembly
of which they were members. With the exception of the
firing of the shots in a direction which could not be deter-
mined, no attempt was made by any of the appellants to use
any force or
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violence on any member of the police party. Accordingly,
the conviction of the appellants under s. 148 must also be
set aside. [678 F-G]
(3)The discloure statements made by H and B in respect of
fire arms recovered at their instance could not be acted
upon because the two witnesses produced in this connection
gave statement which by their similarity appeared to be
tutored and unconvincing. These witnesses were associated
with the police raids over a long period. The other witness
was proved to be inimical to H and B. The High Court erred
in ignoring these facts. The conviction of H and B under s.
25 of the Arms Act could not be sustained. [679 B-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 139 to
141 of 1968.
Appeals by special leave from the judgments and orders dated
January 31, 1968 of the Punjab and Haryana High Court in
Criminal Appeals Nos. 653, 655 and 654 of 1967 respectively.
R. L. Kohli, for the appellants (in all the appeals).
Harbans Singh, for the resondent (in all the appeals).
The Judgment of the Court was delivered by
Grover, J.-Hazara Singh, his brothers Bachan Singh and
Jamail Singh and three others Bhajan Singh, Baj Singh and
Balwant Singh were tried under S. 148 of the Indian Penal
Code for being members of an unlawful assembly and in
prosecution of the common object of that assembly which was
to attempt to murder the police party, while these persons
were armed with deadly weapons Eke pistol and rifle, having
committed the offence on the midnight intervening 21st and
22nd July 1964. Hazara Singh and Bhajan Singh were also
charged under s. 307, Indian Penal Code, while the other
four were charged under s. 307 read with S. 149 of the Code
for Hazara Singh and Bhajan Singh having fired pistol shots
at the police party with such intention and under such
circumstances that if they had there by caused the death of
any member of the police party they would have been guilty
of murder.
Hazara Singh and Bhajan Singh were further tried on a charge
under S. 25 of the Indian Arms Act. The learned Sessions
Judge found that all the six persons were proceeding towards
Pakistan in order to smuggle six bags containing 40 Kg.
cardamom each. Hazara Singh and Bhajan Singh were armed
with a rifle and a pistol respectively and when challenged
by the police party they fired shots from their weapons at
the police party in their attempt to murder them in
pursuance of the common object of them all and as such they
were guilty of an offence under s. 148 of the Indian Penal
Code. They were con-
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victed and sentenced to one year’s rigorous imprisonment on
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that count. Hazara Singh and Bhajan Singh were found guilty
of the offence under S. 307 of the Indian Penal Code while
their co-accused were found guilty of the offence under ss.
307 and 149, Indian Penal Code, and each one of them was
sentenced to rigorous imprisonment for a period of five
years and payment of a fine of Rs. 5001. The sentences were
to run concurrently. Bhajan Singh and Hazara Singh were
further found guilty of the illegal possession of firearms
under s. 25 of the Arms Act and were sentenced to rigorous
imprisonment for one year each.
On appeals to the High Court the conviction of the aforesaid
persons was upheld but the sentences of Bachan Singh,
Jarnail Singh, Baj Singh and Balwant Singh were reduced to
three years’ rigorous imprisonment. All the convicted
persons have filed appeals to this Court (Cr. As. 139-
141/68) by special leave. These shall stand disposed of by
this judgment.
The prosecution story was that Inderjit Singh P.W. I who was
posted as Deputy Superintendent of Police P.A.P. Border,
Khem Karan, had received information on 31st July 1964 that
a party of smugglers would be smuggling some goods to
Pakistan during the night. He organised a raiding party
consisting of Sub-Inspector Ajit Singh P.W. 1,5, Agya Ram
P.W. 12, A.S.1s. Darshan Singh, Nand Singh and Mulakh Raj,
Head Constables Surjit Singh P.W. 3, and Ajai Singh P.W. 13.
The entire raiding party was divided into four groups. Each
group was headed by one of the officers including Inderjit
Singh D.S.P. At about midnight the police party noticed some
persons coining from the side of village Lakhna by the
katcha path with some mares. The path led to Pakistan. It
was a moonlit night but was cloudy at that time. It is
unnecessary to go into the details which will be presently
noticed of how the firing of the shots took place by the
accused persons and how they were identified and arrested.
Four of them were taken into custody at the spot but Hazara
Singh and Bhajan Singh escaped on their mares’ They were
arrested later and on their disclosure a rifle and ’a
revolver were recovered. No one was injured and although
some empty cartridges were found but no attempt was made to
find the bullets which are alleged to have been fired by the
party of the appellants.
The evidence of the police officers was consistent and we
may only refer to the deposition of Inderjit Singh D.S.P.
who appeared as P.W. 1 According to him when the culprits
were at a distance of 25 to 30 karams (One karam is equal to
5
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feet) he alerted members of the police party to be on their
guard and directed Sub-Inspector Ajit Singh to challenge the
culprits and inform them that the police party was holding
its positions and they should stop proceeding further. Ajit
Singh accordingly challenged the culprits. Thereupon the,
leader of the party fired a shot at the police party.
Inderjit Singh then ordered Sub-Inspector Agya Ram to fire a
light pistol so that there might be light and it might be
possible to identify the culprits. Agya Ram fired a shot
and in the light that emerged the leader of the party was
identified as Hazara Singh appellant who was riding a mare
and who had a rifle in his hand. He was followed by Bhajan
Singh or Harbhajan Singh who also was riding a mare and had
a loaded, bag and was armed with pistol. He was followed by
the other four on foot. These persons then shouted to their
companions Hazara Singh and Bhajan Singh that they should
open fire on the police party. Thereupon Hazara Singh and’
Bhajan Singh started firing shots from their respective
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weapons. Sub-Inspector Ajit Singh ordered the police party
to open fire in defence. Four Head Constables fired two
shots each from their rifles at the culprits. At this stage
Agya Ram fired another light pistol shot. Hazara Singh and
Bhajan Singh ran away on their mares throwing away the bags.
The other four persons were found lying down on the ground.
There can be no manner of doubt that if Hazara Singh and
Bhajan Singh fired shots at the police party and even though
no one was injured the appellants would be guilty of the
offences with which they were charged. The real question is
whether it had been proved beyond doubt that the shots were
fired at the police party. There could be two possibilities
in such a situation, one could be of the shots being fined
in the direction of the police party or taking aim at them
and the other could be of the shots being fired in the air
or in some other direction and not in the direction of the
police party merely to create confusion for the purpose of
running away. On the evidence of Inderjit Singh P.W. 1
himself it was a moonlit night but owing to the weather
being cloudy it was dark and light pistol shots bad to be
fired by Sub-Inspector Agya Ram on two occasions in order to
provide sufficient light for seeing and identifying them.
The light provided by these pistol shots admittedly lasted
only for 2 or 2 1/2 seconds. If the shots which are alleged
to have been fired by Hazara Singh and Bhajan Singh had been
fired,at the time when there was light as a result of the
firing of the light pistol shots by Sub-Inspector Agya Ram
then it could be said to have been established that the
Deputy Superintendent of Police and the other witnesses
could have seen in which direction the fire arms were fired
by Hazara Singh and
678
Bhajan Singh and their statement could have been accepted
that ,the shots had been fired at them. But from the
evidence of Inderjit Singh as also of Sub-Inspector Agya Ram
who actually fired the light pistol shots which provided the
light on two occasions it is quite clear that the shots
which were fired by Hazara Singh and Bhajan Singh were not
fired during the few seconds there was light as a result of
the light pistol shots of Agya Ram.- In other words the
shots which are stated to have been fired by the aforesaid
two appellants were fired in complete darkness when it was
not possible for any member of the police party to see the
direction in which they were fired or the aim which was
taken by Hazara Singh and Bhajan Singh. It is not possible
to say from this evidence that Hazara Singh and Bhajan Singh
fired the shoots in the direction of the police party or at
them, and the possibility that the shots were fired in the
air cannot be excluded. Thus the conviction under S. 307 of
Hazara Singh and Bhajan Singh and of the other appellants
under s. 307 read with s. 149, Indian Penal Code cannot be
maintained and they must’ be acquitted of that charge. It
is unfortunate that the judgment of the High Court’ is very
sketchy and there is hardly any discussion or examination of
all the above material facts.
As regards, the conviction of the appellants under S. 148 of
the Indian Penal Code we find it difficult to uphold the
same. According to that section whoever is guilty of
rioting being armed with deadly weapons or with anything
which used as a weapon of offence, is likely to cause death,
shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or
with both. Rioting is defined by s. 146 which provides that
whenever force or violence is used by an unlawful assembly
or any member thereof in prosecution of the common object of
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such assembly every member of such assembly is guilty of the
offence of rioting. Section 349 gives the meaning of the
word "force". The learned counsel for the State has not
been able to show how any force or violence is proved to
have been used by the appellants in prosecution of the
common object of the unlawful assembly of which they were
members. With the exception of the firing of the shots in a
direction which cannot be determined no attempt was made by
any of the appellants to use any force or violence on any
member of the police party. Consequently the conviction of
the appellants under s. 148 must also be set aside.
As regards the conviction of Hazara Singh and Bhajan Singh
under s. 25 of the Indian Arms Act it is most unfortunate
that the witnesses who were produced with regard to the
disclosure statements made by them and the recoveries
effected at their
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instance are of such a type that their evidence could never
have been believed by any court. Lal Singh P.W. and Karnail
Singh P.W. admitted that they had been joining in the police
raids and had been appearing as witnesses for the police for
the last 15 years. Apart from that the statements made by
them were so similar particularly with regard ’to the manner
in which they happened to join the investigation that their
whole evidence looks tutored and unconvincing. P.W.11 Hakam
Singh admitted that Pooran Singh was the son of his cousin
Geja Singh and that he had been convicted-in a case of
murder and sentenced to life imprisonment. Charan Singh,
uncle of the two appellants had appeared as a witness
against Pooran Singh in that case. He was obviously an
inimical witness. It is again surprising that the High
Court in its very sketchy judgment had made-- no mention of
these salient facts and has contended itself by saying that
there was nothing on the record to indicate that the appel-
lants had been falsely implicated. The conviction of Hazara
Singh and Bhajan Singh, therefore, cannot be maintained
under s. 25 of the Arms Act.
In the, result the appeals are allowed and the convictions
and sentences of all the appellants are here by set aside.
The bail bonds of the appellants who were ordered to be
released on bail by this Court on July 15, 1968 shall stand
discharged.
G.C. Appeals allowed-
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