Delhi High Court
Suresh Singhal vs State (Delhi Admin) on 1 September, 2010
Author: V. K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 20.08.2010
Judgment Pronounced on: 01.09.2010
+ CRL.A. 232/1997
SURESH SINGHAL ..... Appellant
versus
STATE (DELHI ADMIN) ..... Respondent
+ CRL.A. 217/1997
STATE (DELHI ADMIN) ..... Appellant
versus
SURESH SINGHAL ..... Respondent
+ CRL.A. 226/1997
STATE (DELHI ADMIN) ..... Appellant
versus
ROSHAN LAL
..... Respondent
Advocates who appeared in this case:
For the Appellant/ :Mr Siddharth Luthra, Sr Advocate with Mr Madhav
Respondent Khurana, Mr Ankur Garg and Ms Priyanka Gupta,
Advocates for respondent in CRL.A. 217/1997 & for
appellant in CRL.A. 232/1997
Mr I.U. Khan with Mr Ghanshyam Sharma and Mr
Aman Khan, Advocates for respondent in CRL.A.
226/1997.
For the State : Mr K.K. Sood, Sr Advocate with Ms Richa Kapoor, APP
and Mr Kunal Malhotra, Advocate.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
V.K. JAIN, J
1. These appeals are directed against the judgment
dated 29th March 1997 and the Order on Sentence dated 31st
March 1997, whereby Suresh Singhal, the appellant in
Criminal Appeal No. 232/1997 and his father and co-appellant
Pritpal Singhal, who died during the pendency of the appeal,
were convicted under Section 302 and 307 of IPC, read with
Section 34 thereof, whereas their co-accused Roshan Lal was
acquitted. The appellants Suresh Singhal and late Pritpal
Singhal were sentenced to imprisonment to life and to pay fine
of `5,000/- each under Section 302/34 of IPC, for committing
murder of Krishan Lal. The appellant Suresh Singhal was also
sentenced to undergo imprisonment for life and to pay fine of
`5,000/- or to undergo R.I. for 6 months in default under
Section 302 of IPC, for committing murder of Shyam Sunder.
Both, Suresh Singhal and his father Pritpal Singhal, were also
sentenced to undergo R.I. for 10 years each and to pay fine of
`3,000/- each or to undergo R.I. for 6 months in default under
Section 307/34 of IPC. The substantive sentences were
directed to run concurrently.
2. Criminal Appeal No. 226/1997 is directed against the
acquittal of Roshan Lal, whereas Criminal Appeal
No.217/1997 has been filed by the State seeking death
penalty to the convict Suresh Singhal.
3. On 4th March 1991 at about 5.45 PM deceased
Shyam Sunder and Krishan Lal, both brothers, were brought
to Deen Dayal Upadhaya Hospital in two separate PCR Vans.
On the same day, their brother Hans Raj was also brought to
RML hospital in injured condition, by his brother Ram
Narayan. The Investigating Officer, when he reached the
hospital, on receipt of this information, was informed that
both, Shyam Sunder and Krishan Lal were dead, when
brought to the hospital. He thereupon reached the shop of
Lala Harkishan Dass, at Rajendra Park, Nangloi, where the
incident had taken place and recorded his statement, on the
basis of which the FIR was registered. Lala Harkishan Dass
told the Investigating Officer that Krishan Lal, Shyam Sunder,
Hans Raj and Raju, all sons of Shri Mohan Lal of Bahadurgarh
were doing business of property dealers under the name and
style of M/s Vijay Property Dealer at Bahadurgarh. They had
arranged a deal of a property of Suresh Singhal with Tarsem,
Sarovar and Tilak Raj, hereinafter referred to as the
Gurdaspur Party. Since there was some misunderstanding
and altercation between them, on the issue of payment, the
parties had approached him for getting the matter settled and
were called by him to his office at 4.00 PM. Shyam Sunder,
Hans Raj, Raju and Krishan Lal, all brothers, accordingly
came to his office at 4.00 PM. Gurdaspur Party reached his
office at 5.10 PM. Suresh Singhal and his father Pritpal
Singhal, accompanied by a man, aged about 35-36 years, then
reached his office. As soon as they entered his office, there
was an altercation between Suresh Singhal and Shyam
Sunder. Suresh Singhal took out his revolver and shot Shyam
Sunder, which led to a commotion. Being scared, he (the
informant) escaped, using the rear door of his office. Later, he
came to know that Krishan Lal was also shot by those people.
He also stated that car No. DL4C-0532 in which Suresh
Singhal, his father Pritpal Singhal and their companion had
come to his office, was left by them on the spot and they had
fled away in the Fiat car of another visitor Subhash, who had
left the key of the car in its ignition. The information given to
the police by Lala Harkishan Dass was supplemented by the
statement of Raj Kumar, recorded on the same day. He, while
confirming the version given by Lala Harkishan Dass, stated
that his brother Shyam Sunder had brokered a deal with
Pritpal Singhal and Suresh Singhal and that on 03rd March,
1991, there was an altercation between his brother Shyam
Sunder on the one hand and Suresh Singhal and his father
Pritpal Singhal on the other hand on the question of some
payment. He also stated that when Suresh Singhal shot his
brother Shyam Sunder from the revolver which he took out
from his pocket, he and his other two brothers moved towards
him in order to save his brother Shyam Sunder. Suresh,
thereupon, asked his father Pritpal Singhal to finish all the
brothers. He was then grabbed by the third person, who was
accompanying Suresh Singhal and his father. Pritpal Singhal
as well as Suresh Singhal shot his brothers Krishan Lal and
Hans Raj. On getting gunshot wounds, his brother Krishan
Lal and Hans Raj ran out of the office of Lala Harkishan Dass,
but, Hans Raj fell down after he had covered some distance on
Rohtak road. Pritpal Singhal then asked the third person,
who was holding him, to bring his gun from the car. The third
person, who is alleged to be Roshan Lal, then released him
and ran towards the car in order to bring the gun. He, saving
himself, ran towards Bahadurgarh and met Naresh Kumar, a
resident of Bahardurgarh, who was going towards Delhi on a
two-wheeler and had stopped on seeing him running. He
asked Naresh to take care of his brothers and went to his
house in Bahadurgarh for giving information of the incident.
From there, he returned to the spot.
4. Thus, the case of the prosecution is that the
appellants Suresh Singhal, his father Pritpal Singhal and the
accused Roshan Lal, who was acquitted by the Trial Court,
committed murder of deceased Shyam Sunder and Krishan Lal
and also attempted to commit murder of Hans Raj, in
furtherance of a common intention, which they shared with
each other.
5. It is also the case of the prosecution that Ram
Narayan, another brother of Hans Raj, happened to pass by
the office of the informant. Seeing his brothers Krishan Lal
and Hans Raj, lying there, he put both of them in his car and
took them to a Nursing Home, Bahadurgarh, where he was
advised to take them to Delhi. While returning to Delhi, he
noticed the police officials near the office of the informant.
Since his brother Krishan Lal was already dead by that time,
he requested the police to shift him to their van and rushed to
RML hospital with the injured Hans Raj.
6. The prosecution examined 51 witnesses in support of
its case. No witness was examined in defence. The case of the
prosecution is that the incident, which took place in the office
of the informant, was witnessed by 7 persons viz. the
informant himself, PW-3 Hans Raj, PW-4 Raj Kumar, PW-23
Subhash Chand, PW-26 Tilak Raj, PW-27 Sarovar Kumar and
PW-30 Tarsem Kumar. The informant Harkishan Dass came
in the witness box as PW-2 and stated that since there was
some dispute between Krishan Lal and his brothers and
Suresh Singhal and his father, in respect of the property sold
through Vijay Property Dealers, a firm of Suresh Singhal and
his brothers, to a Gurdaspur party, and both the parties were
known to him, he was requested to intervene and get the
dispute settled. On being approached in this regard by
Krishan Lal, he rang up Singhals and asked them to come to
his office at Rajendra Park, Nangloi, at 4.00 PM on 4th March
1991. Gurdaspur Party came to his office, followed by Shyam
Sunder, Raju, Hans Raj and Krishan Lal. Subhash, who was
known to him, thereafter, came to his office. At about 5.00
PM, Suresh came there, followed by his father Pritpal Singhal
and another person. As soon as Suresh entered, a
conversation took place between him and Shyam Sunder,
followed by a scuffle between Suresh, Krishan Lal, Shyam
Sunder, Raju and Hans Raj. Suresh then took out a revolver
and the shot fired by him hit Shyam Sunder. He further
stated that thereupon they ran towards the back of his shop.
He also stated that the accused persons had come in a white
Maruti car, which was left at their place while leaving in the
car belonging to Subhash, which had been parked outside his
house.
7. PW-3 Hans Raj is the injured in this case. He stated
that he was doing property business, along with his brothers
Krishan Lal, Shyam Sunder and Raj Kumar, in the name of
Vijay Property Dealers. He further stated that his brother
Shyam Sunder had struck a deal between Suresh Singhal and
Pritpal Singhal on the one hand and Tarsem, Sarovar and
Tilak Raj of Gurdaspur on the other hand, in respect of a plot
in Bhairon Enclave. In the evening of 3rd March 1991, his
brother Shyam Sunder told him that some altercation had
taken place between him and Singhals regarding some money
transactions. On 4th March 1991, he, along with Shyam
Sunder, Krishan Lal and Raj Kumar alias Raju, reached the
office of Lala Harkishan Dass. Tarsem, Tilak Raj and Sarovar
were already sitting in the office. At about 5.15 PM Suresh
Singhal, Pritpal Singh and accused Roshan Lal came there.
The moment Suresh Singhal, Pritpal Singh and Roshan Lal
entered the office of Lala Harkishan Dass, Suresh Singhal
asked Shyam Sunder to tell him what he was saying the
previous day. On hearing this, Shyam Sunder and Raj Kumar
got up and asked Suresh Singhal as to whether he had come
there to settle the dispute or to quarrel. Suresh Singhal
thereupon said that there won‟t be any quarrel at that place
but something else would happen. Suresh Singhal then took
out a revolver from the pocket of his coat and fired at his
brother Shyam Sunder. He, Raj Kumar and Krishan Lal tried
to catch hold of Suresh Singhal and when they were about to
catch hold of him, he asked his father Pritpal Singhal to finish
all the brothers. On this, Roshan Lal caught hold of (grappled)
his brother Raj Kumar, whereas Pritpal Singhal took out a
revolver from his pocket and both Suresh Singhal and Pritpal
Singhal started firing on his brother Krishan Lal. He received
bullets on his stomach, whereas one bullet grazed the front of
his. He and Krishan Lal started running out of the office, in
order to escape from the spot. He was hit by another bullet on
the back of his right shoulder. He also heard Pritpal Singhal
asking Roshan Lal to go and get the gun from the vehicle, and
also said that the fourth brother should also not be spared.
Krishan Lal fell down after coming out from the office, whereas
he fell while trying to run towards Rohtak Road.
8. PW-23 Subhash Chand Mahajan stated that on 4th
March 1991 at about 4.30 PM he had gone to the office of Lala
Harkishan Dass on main Nangloi Road, in Fiat Car No. DIB-
2280. He parked the car in front of the office of Lala
Harkishan Dass and left the key in the ignition. Lala
Harkishan Dass asked him to wait for a while, since some
other persons were sitting with him and he had to first talk
with them. At about 5.10 PM Suresh came there along with
two other persons. A quarrel took place at the entrance gate
of the office. People intervened to resolve the dispute and tried
to separate them. In the meanwhile he heard the sound of
firing and having become perplexed he ran away from the
backdoor of the office of Lala Harkishan Dass.
9. PW-4 Raj Kumar is the brother of PW-3 Hans Raj. He
corroborated the deposition of his brother Hans Raj and
further stated that on 3rd March 1991, he, along with Shyam
Sunder had gone to the house of Suresh Singhal and Pritpal
Singhal at Punjabi Bagh, where some altercation had taken
place between Singhals and his brother Shyam Sunder on
some money transaction. Besides corroborating the version
given by his brother Hans Raj, he also stated that Pritpal
Singhal had asked the accused Roshan Lal to leave him and
bring the gun from the vehicle so that the fourth (the witness)
also did not survive. Thereupon, Roshan Lal left him and ran
towards the car to bring a gun. He got a chance to escape and
ran towards Bahadurgarh on Rohtak Road. One Naresh, a
resident of Bahadurgarh, coming from Delhi side, on a two
wheeler scooter, stopped his vehicle near him. On an enquiry
made by Naresh, he told him that his brother had sustained
bullet injuries and he should take care of them. He further
stated that he took the scooter of Naresh and sped to his
house in order to inform the family members about the
incident. He claimed that he came back to the spot from
Bahadurgarh along with several other persons and narrated
the incident to the police.
10. PW-26 Tilak Raj is one of the members of the
Gurdaspur Party. He stated that around the first week of
March 1991 he had gone to the office of Lala Harkishan Dass,
in Nangloi in Bahadurgarh, along with Tarsem and Sarovar. A
party from Bahadurgarh also came there. When they were
taking tea, another party came there and thereupon a scuffle
took place between one person from Bahadurgarh and one
person from the party which had come later. He named Raju,
Hans Raj, Krishan Lal and Shyam Sunder as the Bahadurgarh
party, which was already present in the room of Lala
Harkishan Dass. He was able to recognize Pritpal Singhal and
Suresh Singhal amongst the persons who had come later.
According to him a shooting/firing took place there and
everybody was saying that Singhals had not done a good
thing. He further stated that in the confusion on account of
firing, he ran away from the backdoor. He also stated that the
persons, who were killed in the office, were Krishan Lal and
Shyam Sunder. During cross-examination, he stated that the
scuffle had taken place about 2-4 paces inside the gate of the
office.
11. PW-27 Sarovar Kumar stated that on 4th March 1991,
he along with Tarsem and Tilak Raj went to the office of Lala
Harkishan Dass in Nangloi for resolving the dispute. 4-5
persons were already sitting in the office at that time. Krishan
Lal, Raju, Hans Raj and Shyam Sunder came there after they
had reached the office. After about 15-20 minutes, the
accused Pritpal Singhal and Suresh Singhal came in the office.
Immediately after their arrival, there was a scuffle between
Suresh on the one hand and 3-4 brothers of Krishan Lal on
the other hand. After the scuffle, Shyam Sunder cried that he
had been shot at. Immediately thereafter, he along with other
persons, ran out from the side gate and hid himself behind the
cement bags. During cross-examination by the learned Addl.
Special PP, he admitted that there was some
misunderstanding between them and Suresh Singhal and they
were called to the office of Lala Harkishan Dass at 4.00 PM on
4th March 1991. He also admitted that he had a share in
property No.-89, Bhairon Enclave and that original papers of
this property were in the name of Pritpal Singhal and Suresh
Singhal.
12. PW-30 Tarsem Kumar was examined firstly when the
appellant Suresh Singhal was absconding from custody during
trial and then after he was arrested and sent to judicial
custody. When he was examined for the second time, he
stated that in the year 1991, a group of persons, including
him, had purchased property No. 89, Bhairon Enclave from
Daya Ram, Suresh Singhal and Pritpal Singhal through M/s
Vijay Properties, partnership firm of Krishan Lal and his
brothers Shyam Sunder, Raju and Hans Raj. He further
stated that on 4th March 1991, at about 2.00 PM, Krishan
Kumar informed him that there was some misunderstanding
and requested him to come to the shop of Lala Harkishan
Dass for a meeting at about 4.00 PM. He accordingly reached
the office of Lala Harkishan Dass, along with Tilak Raj and
Sarovar Kumar. Krishan Kumar, Hans Raj, Shyam Sunder
and Raju also arrived there. Accused Suresh Singhal and
Pritpal Singhal came thereafter in a Maruti car. Shyam
Sunder was sitting by his side on a sofa, when he suddenly
said that he had been hit by a bullet. According to the
witness, he then became nervous and escaped through the
backdoor. According to him, when he returned there, he
found that the accused had left the Maruti car at the spot and
dead body of Krishan Lal was lying there. During cross-
examination by the learned Special PP, he stated that he had
gone to the office of Lala Harkishan Dass under the
impression that the misunderstanding was in respect of
property No. 89, Bhairon Enclave.
13. In his statement recorded under Section 313 of
Cr.P.C. the appellant Suresh Singhal denied having entered
into a deal in respect of property in Bhairon Enclave with
Tarsem, Sarovar and Tilak Raj of Gurdaspur through deceased
Shyam Sunder. He also denied that on 3rd March 1991 he and
his father had an altercation with Shyam Sunder at their
house in Punjabi Bagh. He altogether denied having come to
the office of the informant on 4th March 1991. He also denied
rest of the evidence which came against him and his father
during trial.
14. The following facts emerge from a careful analysis of
the evidence produced by the prosecution:-
(i) The appellant co-owned property No. 89, Bhairon
Enclave, Delhi and he along with other co-owners of
that property had entered into a transaction to sell it
to PW-30 Tarsem Kumar and others, through M/s
Vijay Property Dealers, a partnership firm of deceased
Krishan Lal and Shyam Sunder and their brothers
Hans Raj and Raj Kumar. The testimony of PW-3 Hans
Raj and PW-4 Raj Kumar shows that the appellant
Suresh Singhal and his father late Pritpal Singhal had
entered into a transaction with people from Gurdaspur
with respect to the property owned by the appellant and
others in Bhairon Enclave and the deal was struck
through Vijay Property Dealers. The testimony of PW-3
and PW-4 in this regard finds corroboration from the
deposition of PW-30 Tarsem Kumar, who was one of the
purchasers of the aforesaid property. PW-26 Tilak Raj
also admitted that the appellant was amongst the owners
of property at Bhairon Enclave. Even PW-27 Sarovar
Kumar admitted in his cross-examination that the
original papers of this property, which were given to him
by one Mr Sachdeva from whom he purchased a flat in it,
are in the name of Pritpal Singhal and Suresh Singhal.
During cross-examination of PW-30 Tarsem Kumar no
suggestion was given to him that property No. 89,
Bhairon Enclave was not owned by Suresh Singhal and
that they had not entered into a transaction through M/s
Vijay Property Dealers to sell this property to him and his
other co-purchasers. In fact this part of the deposition of
Tarsem was not disputed at all in his cross-examination
by the appellant Suresh Singhal. The photocopies of
documents filed during trial also show that the appellant
Suresh Singhal was a co-owner of property No. 89,
Bhairon Enclave. Even if documents are excluded from
consideration, for want of their originals, the oral
evidence alone is sufficient to prove this fact.
(ii) There was some dispute with respect to the
transaction of sale of Bhairon Enclave property and
PW-2 Lala Harkishan Dass was approached to resolve
that dispute and accordingly he had called the
concerned parties viz. the appellant Suresh Singhal
and his father late Pritpal Singhal, deceased Krishan
Lal, Shyam Sunder, Hans Raj, etc., who had brokered
the deal, and the purchasers Tarsem Kumar and
others, in his office, on 4th March 1991. The
testimony of PW-3 Hans Raj and PW-4 Raj Kumar in this
regard finds corroboration not only from the informant
Lala Harkishan Dass but also from PW-26 Tilak Raj, PW-
27 Sarovar Kumar and PW-30 Tarsem Kumar. PW-2
Lala Harkishan Dass being an outsider to the
transaction, there could have been no reason for him to
make a false statement in this regard. In fact, during his
cross-examination, he specifically stated that after
Krishan Lal came to him on 2nd March 1991 with a
request to get the matter settled, he telephoned Suresh
Singhal and his father in his presence and asked them to
come to his shop at 4.00 PM on 4th March 1991. During
his cross-examination, no suggestion was given to him
that he had not called the appellant Suresh Singhal and
his father late Pritpal Singhal to his shop on 4th March
1991, though it was suggested to him that no meeting
had taken place in his office. The appellant does not
claim any enmity between him and the informant. In fact
the informant claimed in his examination-in-chief itself
that a scuffle had ensued between Suresh Singhal,
Krishan Lal, Shyam Sunder, Raju and Hans Raj, though
no such statement was made by him to the police, which
clearly indicates that this witness was not at all inimical
to the appellant. Similarly, the appellant does not claim
that PW-26 Tilak Raj, PW-27 Sarovar Kumar or PW-30
Tarsem Kumar harboured any ill-will towards him or his
father and that is why they had supported PW-3 Hans
Raj and PW-4 Raj Kumar in this regard. Rather, the
dispute between the appellant and Gurdaspur Party
seems to have been resolved by the time these witnesses
were examined in Court, as is evident from the fact that
not only the documents in respect of property No. 89,
Bhairon Enclave had been executed in their favour,
possession of the property had also been delivered to
them. In fact, it was vehemently contended by the
learned counsel for the respondent State that it was
because of the settlement between the appellant and the
purchasers that they did not fully support the case of the
prosecution, when they came in the witness box. Though
according to PW-3 Hans Raj, the dispute between the
parties was with respect to execution of title deeds and it
has come in evidence that the deeds in favour of
Gurdaspur Party was later on executed, we need not go
into the precise nature of the dispute. What is material
is that there had occurred a dispute, which had remained
unresolved, and deceased Krishan Lal had approached
PW-2 Lala Harkishan Dass for its resolution and all the
parties were called to his office on 4th March 1991.
(iii) Gurdaspur Party comprising PW-26 Tilak Raj, PW-
27 Sarovar Kumar and PW-30 Tarsem, as well as
deceased Krishan Lal and Shyam Sunder, injured
Hans Raj and possibly their brother PW-4 Raj Kumar
had come to the office of the informant on 4th March
1991 at about 4-5 PM. This fact is proved by the
informant Lala Harkishan Dass, PW-3 Hans Raj, PW-4
Raj Kumar, PW-26 Tilak Raj, PW-27 Sarovar Kumar and
PW-30 Tarsem. As noted earlier, they had come to the
office of the informant Lala Harkishan Dass for resolution
of some disputes, which had arisen in respect of property
No. 89, Bhairon Enclave, co-owned by the appellant
Suresh Singhal and his father late Pritpal Singhal and
sold through M/s Vijay Property Dealers, a partnership
firm of deceased Shyam Sunder and Krishan Lal and
their brother.
(iv) The appellant Suresh Singhal, accompanied by
two other persons, had come to the office of Lala
Harkishan Dass at about 5.00 PM and Gurdaspur
Party as well as the deceased Krishan Lal and his
brother were already present in the office of the
informant at that time. This has been testified by PW-2
Lala Harkishan Dass, PW-3 Hans Raj, PW-4 Raj Kumar,
PW-23 Subhash Chand Mahajan, PW-26 Tilak Raj, PW-
27 Sarovar Kumar and PW-30 Tarsem. All these
witnesses except PW-23 identified late Pritpal Singhal as
the second person who had accompanied the appellant
Suresh Singhal to the office of Lala Harkishan Dass on
that day. Roshan Lal, who was acquitted by the trial
court, was identified by some of them as the third person
who had accompanied the appellant Suresh Singhal.
Though in his statement under Section 313 of Code of
Criminal Procedure, the appellant Suresh Singhal denied
having gone to the office of Lala Harkishan Dass on that
day, denial by him cannot be accepted considering the
overwhelming evidence of the eye witnesses. In fact
Suresh Singhal denied even the transaction entered into
by him and other co-owners of the property for sale of
property No. 89, Bhairon Enclave to Gurdaspur Party as
well as his having been called by Lala Harkishan Dass to
his office on that day, for resolution of dispute in respect
of the aforesaid property.
(v) During cross-examination of witness, it was suggested
to them that there was a scuffle between the appellant
Suresh Singhal on one hand and deceased Shyam
Sunder and Krishan Lal and their brother Hans Raj on
the other hand. It was also suggested to them that
Suresh was beaten by them and an attempt was made to
strangulate him. These suggestions contain an admission
that Suresh had come to the office of PW2 on that date.
(vi) It would be pertinent to note here that car No. DL4C
0532 was seized by the police from outside the office of
Lala Harkishan Dass on that day vide memo Ex. PW4/D.
The Registration Certificate Ex.P-5, Insurance Certificate
Ex.P-4 and Driving Licence Ex.P-3 were found in the car
when it was seized by the police. The Registration
Certificate as well as Insurance Certificate of the car are
in the name of the wife of the appellant Suresh Singhal
whereas the Driving Licence is in his own name. There is
no explanation from the appellant Suresh Singhal as to
how and why the car owned by his wife was found parked
outside the office of the informant on that day. He also
does not dispute that this car was registered in the name
of his wife and the Driving Licence Ex.P-3 was got issued
by him. In these circumstances, seizure of the aforesaid
car from outside the office of Lala Harkishan Dass
corroborates the testimony of the witnesses to the effect
that the appellant Suresh Singhal had come to the office
of Lala Harkishan Dass on that day in the aforesaid car.
(vii) The appellant Suresh Singhal as well as his father
late Pritpal Singhal were armed with revolvers on that
day. This has been testified by the injured Hans Raj as
well as his brother Raj Kumar. So far as the appellant
Suresh Singhal is concerned, PW-2 Lala Harkishan Dass
also corroborated their deposition in this regard, when he
specifically stated in his examination-in-chief that
Suresh Singhal took out a revolver and fired at Shyam
Sunder. It is, therefore, difficult to dispute that the
appellant Suresh Singhal and his father were armed with
revolvers when they came to the office of Lala Harkishan
Dass on 4th March 1991.
(viii) Out of the persons present in the office
of Lala Harkishan Dass on that day, no one other
than the appellant Suresh Singhal and his father late
Pritpal Singhal was armed with a fire weapon. No
witness says so and even the appellant Suresh Singhal
does not claim in his statement under Section 313 of
Cr.P.C. or during cross-examination of the witness that
out of the persons present in the office of Lala Harkishan
Dass any person other than him and his father was
armed with a weapon. In fact his case is of a total denial
of the entire case setup by the prosecution including his
going to the office of PW 2 on that date. Considering the
evidence produced by the prosecution and other facts
and circumstances of the case, we see no reason to
disbelieve that out of the persons present in the office of
Lala Harkishan Dass only the appellant Suresh Singhal
and his father were armed with fire arms.
(ix) Late Krishan Lal and Shyam Sunder as well as the
injured Hans Raj had sustained gunshot injuries in
the office of Lala Harkishan Dass at about 5.00 PM on
4th March 1991. Besides the testimony of eye witnesses,
the fact that blood was found in the office as well in the
open space outside the office of Lala Harkishan Dass and
was lifted from there by the Investigating Officer, leaves
no reasonable doubt as regards the place where injuries
were sustained by these persons on that day.
15. Thus, the prosecution has been able to prove beyond
reasonable doubt that the appellant Suresh Singhal co-owned
property No.89 Bhairon Enclave and had entered into a
transaction, through M/s Vijay Property Dealers, to sell this
property to Gurdaspur Party comprising PW-30 Tarsem and
others, and since some dispute had arisen in respect of that
transaction, late Krishan Lal had approached the informant
Lala Harkishan Dass for a resolution of that dispute and
accordingly the complainant party comprising deceased
Krishan Lal and his brothers, Gurdaspur Party comprising PW
30 Tarsem and others as well as the appellant Suresh Singhal
and his father late Pritpal Singhal were called by Lala
Harkishan Dass to his office on 4th March 1991 at about 4:00-
5:00 PM. The prosecution has further been able to prove that
the appellant Suresh Singhal as well as his father late Pritpal
Singhal were armed with revolvers when they came to the
office of the informant. It has also been proved that a firing
had taken place in the office of the informant on that day and
deceased Krishan Lal as well as his brother Hans Raj
sustained gunshot injuries in the office of the informant at
about 5:00 PM on that day and succumbed to those injuries.
It has further been proved that injured Hans Raj also had
sustained gunshot injuries in the very same incident, though
he fortunately survived the deadly attack on him. Since no
one other than the appellant Suresh Singhal and his father
were armed with a fire weapon when the firing took place in
the office of Lala Harkishan Dass, it is only the appellant
Suresh Singhal and/or his father late Pritpal Singhal who
could be responsible for the firing resulting in the murder of
late Krishan Lal and Shyam Sunder and serious injuries to
their brother Hans Raj. According to PW-3 Hans Raj and PW-
4 Raj Kumar, fire arms were used by both Suresh Singhal and
his father Pritpal Singhal. The informant Lala Harkishan Dass
specifically stated in his examination-in-chief that it was the
appellant Suresh Singhal who had taken out a revolver and
shot Shyam Sunder in his office, though in his cross-
examination he claimed that it was his guess that the bullet
which hit Shyam Sunder, had been fired by the appellant
Suresh Singhal. A perusal of the postmortem report of
Krishan Lal and Shyam Sunder and MLC of Hans Raj would
show that as many as seven shots were fired during this
incident. A revolver does not contain more than six bullets.
The inevitable conclusion therefore is that more than one
weapon was used in the office of Lala Harkishan Dass. It is
nobody‟s case that either Suresh Singhal or his father Pritpal
Singhal was carrying two revolvers. This is also not the case
of anyone, including the appellant Suresh Singhal, that all the
gunshots which hit deceased Krishan Lal and Shyam Sunder
and the injured Hans Raj were fired by late Pritpal Singhal. In
these circumstances, we see no reason to disbelieve the
deposition of Hans Raj that the appellant Suresh Singhal had
used a fire arm in the office of Lala Harkishan Dass on that
day. He was emphatic in saying that it was the shot fired by
the appellant Suresh Singhal which had hit his brother late
Shyam Sunder. It is nobody‟s case that the shot which hit
deceased Shyam Sunder was fired by late Pritpal Singhal. In
these circumstances, we have no hesitation in agreeing with
the conclusion reached by the trial court that it was the
appellant Suresh Singhal who had fired the deadly shot which
hit deceased Shyam Sunder in the office of Lala Harkishan
Dass on that day. He, therefore, is definitely responsible for
causing the death of late Shyam Sunder.
16. As regards the shots fired at late Krishan Lal and the
injured Hans Raj, in our view, it is immaterial as to who
received the gunshot fired by the appellant Suresh Singhal
and who received the gunshot fired by his father late Pritpal
Singhal. Since, both Suresh Singhal and Pritpal Singhal were
armed with fire weapons, there was relationship of son and
father between them and both of them fired during the
incident, it can hardly be disputed that both of them shared a
common intention to commit murder of Shyam Sunder,
Krishan Lal and Hans Raj. It is quite probable, as concluded
by the trial court, that they had not preplanned the murder by
the time they came to the office of Lala Harkishan Dass but, it
can hardly be disputed that a common intention had
developed between them, in the office of Lala Harkishan Dass,
to commit murder of Shyam Sunder, Krishan Lal and Hans
Raj. That they wanted to commit murder only of Krishan Lal,
Shyam Sunder and Hans Raj is also evident from the fact that
no one other than these three brothers received even a single
gunshot injury though at least ten persons were present in the
office of Lala Harkishan Dass at that time. Had Suresh
Singhal and his father late Pritpal Singhal fired
indiscriminately, at least one shot would have hit some other
person present in the room or some other place such as a wall
or a piece of furniture in that room. It cannot, to our minds,
be just incidental that all the gunshot injuries were received
only by these three brothers, no bullet hit any other person
present in the room and no bullet hit any wall or object in that
room.
17. The case of the prosecution is that the appellant
Suresh Singhal was arrested in the Court complex of Moga
whereas his father late Pritpal Singhal was arrested at the
Airport. Both of them were absconding at that time and the
police was searching for them. Despite that, they chose to
visit such busy places and that too armed with fire arms. The
reasonable inference which can be drawn in such
circumstances is that they were deliberately carrying their
licensed fire arms with them, since they knew that in the event
of their arrest those fire arms will be seized and sent to the
ballistic expert for opinion as to whether these were the same
weapons which were used during the incident on 4th March
1991 or not, and since the fire arm being carried by them
being different from the fire arms used during the incident, the
report of the ballistic expert was likely to be in their favour and
that precisely was the reason they were carrying these fire
arms with them though ordinarily a person whom the police
was searching in a murder case will avoid a place like a Court
complex or Airport particularly when he is also carrying a fire
arm with him.
18. Referring to the unnatural conduct of PW-4 Raj
Kumar, it has been contended by the learned counsel for the
appellant Suresh Singhal that the presence of this witness, at
the time of occurrence, is highly doubtful. This witness is the
brother of deceased Krishan Lal and Shyam Sunder and the
injured Hans Raj. He claims to have witnessed the entire
incident. He also knew the assailants. Despite the fact that
two of his brothers were shot dead and the third was seriously
injured in his presence, no attempt was made by him to save
them and he fled from the spot, leaving them either dead or
seriously injured. He neither stayed on the spot to take his
brothers to the hospital nor did he inform the police even after
he had come far away from the place of occurrence. It was also
pointed out that though his two brothers were shot dead and
the third one was seriously injured, not a scratch is alleged to
have been received by this witness. The contention is that if
the appellant and his father intended to kill the deceased
Krishan Lal and his brothers, as the case of the prosecution is,
there was no reason for them to spare this witness, despite the
fact that he was unarmed and was not in a position to offer
any resistance to the assailants. In our view, the conduct of
this witness in fleeing from the spot, instead of staying there
and later taking his brothers to hospital by itself, does not by
itself necessarily justify the inference that he had not
witnessed the incident which took place on that day. Both,
the appellant Suresh Singhal as well as his father late Pritpal
Singh, were armed with deadly weapons and were selectively
targeting late Krishan Lal and his brothers. This witness was
unarmed and, therefore, not in a position either to save his
brothers or to defend himself. Therefore, his fleeing away from
the spot cannot be said to be unnatural actuated since it
would be for fear for his own life and actuated by a feeling of
self-preservation, particularly when he was not in a position to
save his brothers from the assailants. In Hari Singh M.
Vasava vs. State of Gujarat: JT 2002 (2) SC 333, the witness
did not try to save the deceased from the accused, who was
armed and had inflicted injuries on the deceased. It was held
by the Supreme Court that merely because the witness did
not intervene at the time when the appellant was inflicting
knife blows on the person of the deceased could not be a
ground to discard his testimony.
19. We, however, find it quite unnatural that even after
coming to a safe distance from the place of occurrence, this
witness did not make an attempt to inform the police about
this incident. At that time, this witness did not know whether
any or all of his brothers had survived the deadly attack on
them. In the natural course of human conduct, a brother
placed in such circumstances, is likely to inform the police at
the very first opportunity so that the police may reach the spot
and at least take his brothers to the hospital for providing
medical aid to them. However, this is also a fact that the
presence of this witness, at the time of incident, has been
confirmed not only by his brother PW-3 Hans Raj, but also by
the informant Lala Harkishan Dass, who specifically, stated
that four brothers, namely, Shyam Sunder, Hans Raj, Krishan
Lal and Raju, had come to his office on that day. PW-26 Tilak
Raj named Hans Raj, Shyam Sunder, Krishan Lal and Raju as
the Bahadurgarh Party, which had come to the office Lala
Harkishan Dass on that day. PW-30 Tarsem Kumar also
stated that Hans Raj, Shyam Sunder, Krishan Lal and Raju
had reached the office of Lala Harkishan Dass, after he had
reached there alongwith Tilak Raj and Sarovar Kumar. PW-2
Lala Harkishan Dass, PW-26 Tilak Raj and PW-30 Tarsem
Kumar cannot be said to be inimical to the appellant. All
these witnesses were cross-examined by the prosecution and
none of them supported the prosecution in toto. We, however,
need not delve further into this issue, since we are of the view
that even if the testimony of Raj Kumar is excluded from the
consideration, the other evidence, produced by the
prosecution, is sufficient to prove the guilt attributed to the
appellant.
20. As regards PW-7 Ram Narayan, it was submitted
that there could have been no reason for this witness to shift
the dead body of Krishan Lal to the police vehicle, as claimed
by him, since he would be wasting precious time in shifting
the dead body of Krishan Lal to police vehicle and delaying
medical aid to the injured Hans Raj, without any useful
purpose. We also note that though this witness claims that
he had taken Hans Raj and Krishan Lal first to a Nursing
Home in Bahadurgarh, no witness from the Nursing Home has
been examined to confirm his testimony. But, nothing really
turns on the testimony of this witness since he did not witness
the incident of shooting.
21. The testimony of PW-23 Subhash Chand Mahajan
has been assailed on the ground that there was no reason for
him to leave the key of his car in its ignition. We, however, do
not find anything unusual in it. It has come in the testimony
of the informant Lala Harkishan Dass that this was not the
first visit of this witness to his office. The open space, where
the car was parked by him, was not a part of the main road
and was used for parking of vehicles not only by him, but also
by others, including the appellant Suresh Singhal, whose car
was later seized by the police from that place. Since Subhash
Chand Mahajan had come to a place familiar to him and the
car was parked in the open space abutting the office, there
was nothing unnatural in the witness, leaving the key of the
car in the ignition either by mistake or out of a feeling that his
car was safe and secure at that place. The presence of this
witness, at the time of incident, has been admitted by the
informant Lala Harkishan Dass. His Car DIB-2280 was later
seized from Paschim Vihar, where it was found abandoned on
05th March, 1991, by PW-18 SI Nathu Ram, who had reached
there on being informed by a PCR van that a car was parked
there. According to PW-18, this information was conveyed to
all the SHOs and ACPs and other officers and the car was also
checked by the Crime Team before it was seized vide memo Ex.
PW-18/A. Register No.19 was also brought by this witness on
the direction of the Trial Court, and it was found that an entry
had been made in the register regarding seizure of this car.
The seizure of the car was not disputed during cross-
examination of this witness. In these circumstances, we see
no reason to disbelieve the presence of this witness at the time
of this incident.
22. It was contended by the learned counsel for the
appellant Suresh Singhal that if there was some dispute in
respect of the alleged transaction of sale of property No.59,
Bhairon Enclave, as claimed by the prosecution, the aggrieved
party would be the purchasers and not the sellers since the
consideration for the sale of the property had already been
received by the sellers and, therefore, the appellant had no
reason to commit murder of Krishan Lal and Shyam Sunder.
We, however, are not impressed with the argument. No
suggestion was given to PW-26 Tilak Raj, PW-27 Sarovar
Kumar and PW-30 Tarsem Kumar that it were they who had
killed Shyam Sunder and Krishan Lal and caused gunshot
injuries to PW-3 Hans Raj. There is no evidence or even an
allegation that any member of Gurdaspur Party was armed
with a fire arm when they came to the office of the informant.
Moreover, had murders been committed by one or more
members of Gurdaspur Party, PW-3 Hans Raj and PW-4 Raj
Kumar would have been the last persons to exonerate them
and implicate the appellant Suresh Singhal and his father
Pritpal Singhal. Hans Raj had lost his two brothers and was
severely injured. He still carries some bullets inside his body.
We, therefore, do not believe that they would shield the real
offender and implicate innocent persons for such heinous
acts. The contention is, therefore, liable to be out rightly
rejected.
23. It was also contended by the learned counsel for the
appellant that the prosecution has not given the genesis of the
incident since no witness told the Court as to what exactly had
transpired in the meeting, which took place on 03rd March,
1991 at the Punjabi Bagh residence of appellant. Though,
according to PW-3 and PW-4, the appellant Suresh Singhal, on
entering the office of informant, asked the deceased Shyam
Sunder to tell him what he was saying the previous day, they
did not tell the Court as to what were the offensive words,
used by Suresh Singhal on 03rd March, 1991, which provoked
the appellant Suresh Singhal to the extent of saying on 4th
March, 1991 that there will not be any quarrel, but something
else would happen at that place and follow it up by taking out
a revolver and firing at Shyam Sunder. No doubt, neither of
these witnesses told the Court as to what exactly were the
offensive words, which had hurt the appellant Suresh Singhal
on 03rd March, 1991. But, PW 3 Hans Raj does not claim to
be a witness to the altercation of 03rd March, 1991 whereas
during cross-examination of PW-4 Raj Kumar, who claims to
have gone to the house of the appellant Suresh Singhal, in the
morning of 03rd March, 1991, alongwith deceased Shyam
Sunder, he was not asked as to what exactly had transpired at
the residence of Suresh Singhal on 03rd March, 1991 and what
were the words used on that day which Suresh Singhal found
to be so offensive. Since this witness was not given an
opportunity to elaborate the offensive words to which the
appellant Suresh Singhal referred while entering the office of
informant on 4th March, 1991, no adverse inference can be
drawn against him for not sharing those words with the Court.
In our view, considering the ocular testimony of the witnesses,
particularly the deposition of PW-3 Hans Raj, corroborated
though partly by PW-2 Lala Harkishan Dass, PW-26 Tilak Raj
and PW-30 Tarsem Kumar, it is immaterial as to what
transpired between the parties on 03rd March, 1991 and what
were the alleged offensive words used on that day. We also
note that in his statement, recorded on 04th March, 1991, PW-
4 Raj Kumar did not tell the police that on entering the office
of PW-2 Lala Harkishan Dass, the appellant Suresh Singhal
had asked his brother Shyam sunder to speak what he was
saying the previous day. Therefore, this part of the deposition
of the witness may either be an elaboration of the altercation,
which took place between the appellant Suresh Singhal and
deceased Shyam Sunder in the office of PW-2 Lala Harkishan
Dass on 04th March, 1991 or it may be an attempt to improve
his previous statement in which case it may altogether be
excluded from consideration. In either case, it makes no
difference to the case of the prosecution on its merits.
24. The learned counsel for the appellant Suresh Singhal
has referred to Chanan Singh vs. State of Punjab 1979(4)
SCC 399, State of Karnataka vs. Siddappa Basanagouda
Patil & Anr. 1990 (Supp) SCC 257, Ghurey Lal vs. State of
Uttar Pradesh 2008 (1) SCC 450 and State of U.P. vs. Madan
Mohan & Ors. 1989(3) SCC 390, in support of his contention
that if the genesis and origin of the occurrence is withheld by
the prosecution, that creates a doubt regarding truthfulness of
the case set up by the prosecution, the benefit of which must
ensue for the benefit of the accused. In the case before us, it
cannot be said that the genesis of the incident has not been
disclosed by the prosecution to the Court. It has come in
evidence that the appellant Suresh Singhal was co-owner of
Property No. 89, Bhairon Enclave which he and other co-
owners had sold that property to PW 30 Tarsem Kumar and
others and a dispute had arisen between the parties with
respect to the transaction relating to that property and all the
parties were called by PW 2 to his office for the resolution of
that dispute. PW 3 and PW 4 have also shared with court the
precise words used by the appellant Suresh Singhal on the
day of this incident, though these words were not disclosed to
the police at the earliest opportunity and were disclosed at a
later date. But, it cannot be said that the genesis or origin of
the incident was not disclosed by them to the police or to the
court. In any case, since neither any plea of acting in self
defence has been taken by the appellant Suresh Singhal nor
such a case is otherwise made out from the evidence produced
during trial, the decisions relied upon by the learned counsel
for the appellant do not apply to the facts of the case before
us.
The learned counsel for the appellant Suresh Singhal
has referred to Munshi Ram vs. Delhi Administration AIR
1968 SC 702 and Darshan Singh vs. State of Punjab & ors.
2010 (2) SCC 333 in support of his contention that even if the
plea of self defence is not set up by the accused it is open to
the court to consider such a plea, if the same arises from the
material placed before it. There is no quarrel with the
proposition of law laid down in these cases. But, we cannot
make out any case of self defence from the evidence produced
during trial and other facts and circumstances of the case.
25. Referring to the report of FSL, Madhuban, which
opined that the bullets, used during this incident, were not
fired either from the weapon, seized from the appellant Suresh
Singhal or from the weapon seized from his father late Pritpal
Singhal, it was contended by the learned counsel for the
appellant that the prosecution has failed to connect the
weapon recovered from the appellants with the crime
committed in this case and has not recovered the weapons
which were actually used for committing murder of Shyam
Sunder and his brother Krishan Lal and attempting to commit
murder of their brother Hans Raj. No doubt, the report of
FSL, Madhuban does mean that the weapons recovered from
the appellant and his father were not used in the office of Lala
Harkishan Dass on 04th March, 1991, but, that by itself does
not lead to the conclusion that the appellant Suresh Singhal
and/or his father Pritpal Singhal had not used any fire arm on
that day. The facts and circumstances of this case, as
discussed in the preceding paragraphs, leave no reasonable
doubt that both of them were armed with revolvers and had
used them in the office of Lala Harkishan Dass on that day
and Shyam Sunder and his brother Krishan Lal succumbed to
the injuries sustained by them at their hands, whereas their
brother Hans Raj was seriously injured by them. The only
inference which, in the facts and circumstances of this case,
can be drawn from the report of FSL, Madhuban is that some
weapons, other than the weapons seized by the police from the
appellant Suresh Singhal and his father Pritpal Singhal were
used in the office of informant on 4th March, 1991 and since
they were arrested much after the incident, the weapons
actually used by them were either destroyed or damaged by
them, utilizing the time and opportunities available to them
during this period. It is not necessary that the weapon of
offence should be recovered before a person can be convicted
for committing murder or causing injuries, using that weapon.
If the Court insists on the recovery of weapon of offence, any
offender may get away with the crime committed by him
simply by destroying, damaging or parting with the weapon
used by him. In Rajender and others vs. State of Haryana &
Anr.(2005) 9 SCC 784, the weapon of offence was not
recovered by the police from the possession of any of the
appellants. Supreme Court, however, held that this could not
be a ground to throw out the prosecution case, when the same
has been otherwise found to be truthful by credible evidence.
In Krishna Gope vs. State of Bihar (2003) 10 SCC 45, the fire
arm alleged to have been used by the appellant was not
recovered. The Supreme Court refused to give benefit to the
appellant on the ground that the weapon of offence could not
be recovered from him and observed that he had succeeded in
concealing the weapon before the police could search his
house. Similar view was taken in Umar Mohammad and ors.
vs. State of Rajasthan (2007) 14 SCC 711. In Ambika Prasad
& Ors. vs. State and Ors. 66 (1997) DLT 401 (DB), a judgment
relied upon by the learned counsel for the State, the weapon of
offence alleged to have been recovered at the instance of the
appellant was not found to be the weapon used for committing
the offence. It was argued for the appellant that in the
absence of recovery of weapon of offence by the police, it could
not be said that the shot which resulted in death had been
fired by the appellant. Rejecting the contention a Division
Bench of this Court held as under:
"Next it was argued for accused Ram
Chander that the gun allegedly recovered
at his instance was not used as the
weapon of offence as per the CRSL report,
therefore, I cannot be said that he fired
the shot which resulted in the death of
Virender. We are not impressed by this
argument. This could at best mean that
the weapon of offence remained untraced.
There can be no dispute that Virender
Singh died as a result of gunshot injury.
This is established by the medical
evidence on record to which we have
already referred. By getting a different
gun recovered, accused Ram Chander
may be trying to mislead the prosecution.
Failure to recover the weapon of offence
need not necessarily result in acquittal of
an accused."
26. The learned counsel for the appellant, in support of
his contention that if the report of ballistic expert does not
support the case of the prosecution benefit must go to the
accused, has referred to the decisions in Achhaibar Pandey
vs. State of U.P. 1990 Crl. L.J. 958, Puran Singh vs. State of
Uttranchal 2008(3) SCC 795 and Brij Pal Singh vs. State of
M.P. 2003(11) SC 219. However, none of these judgments
helps the appellant since, we are of the view that the weapons
used by the appellant Suresh Singhal and his father were
different from the weapons which were later seized by the
police from them and were sent to FSL Madhuban. We would
like to say here that in our view, no witness can ordinarily
identify a firearm used in his presence, unless it had some
distinct or peculiar shape, design or other feature, which
creates a lasting impression in his mind, about the identity of
that weapon and enables him to identify it at a later date. No
such distinctive mark, shape or feature has been claimed by
PW 3 or PW 4 in respect of the revolver used in their presence
on 4th March, 1991. Hence, even if some witness claimed the
weapons seized from the appellant Suresh Singhal and his
father to be the weapons used in this case, such a testimony
needs to be excluded from consideration.
27. It was also contended by the learned counsel for the
appellant that the version of the incident given by PW-3 Hans
Raj and PW-4 Raj Kumar is doubtful since according to them,
deceased Krishan Lal as well as injured Hans Raj had used the
front exit while coming out of the office of Lala Harkishan
Dass, despite the fact that the appellant Suresh Singhal was
present there and was in a position to cause more injuries to
them, whereas the other persons, present in the room, had
used the rear exit in the office of Lala Harkishan Dass. As
noted earlier by us, deceased Krishan Lal and Shyam Sunder
and the injured Hans Raj were selectively targeted while firing
gunshots. Considering the atmosphere of fear which prevailed
in the office of the informant at that time, the targets of the
attack, particularly when they were fatally or seriously injured
could not have been in such a disposition that they would
select the door they want to exit from to save their lives. We
cannot be oblivious to the fact that the entire incident was
over within a short time, as stated by the witnesses. There is
no evidence to show that any of these brothers had earlier
visited the office of Lala Harkishan Dass and was aware of the
rear exit used by the informant and other persons, present in
the room. The appellant Suresh Singhal was not the only
person using a fire arm at that time. His father Pritpal Singhal,
who was present in the room, was also firing simultaneously.
Hence, there was an apprehension of the victims becoming
targets of the shots fired by late Pritpal Singhal. Also, in case,
victims were not aware of the rear exit, they had no option, but
to use the front entrance, which they had used while entering
the office. Moreover, since the rear entrance was at some
distance, they could have been targeted from behind had they
tried to escape, using that door. The front door was the
nearest exit available to them and the natural human instinct,
at such a time, is to look for the nearest point of exit.
Therefore, use of the front door, which is otherwise established
from the fact that blood was found in the open space outside
the office of Lala Harkishan Dass, does not, in any manner,
impeach the testimony of eye-witnesses, particularly of Hans
Raj, whose presence, at the time of occurrence, cannot be
disputed.
28. During the course of arguments, the deposition of PW
3 Hans Raj was assailed before us on the ground that though
he was conscious on 4th March, 1991, as recorded in his MLC,
no statement was given by him to the police on that day. We,
however, find no merit in the challenge. Though an
endorsement on the MLC indicates that no history of
unconsciousness, vomiting etc. was given at the time he was
brought to the hospital that, in our view, by itself does not
mean that he was fit to give a statement to the police at that
time. No witness told the Court that Hans Raj was fit to make
a statement, when he was brought to the hospital. He was
brought to the hospital at about 6:40 p.m., as noted in the
MLC Ex. PW 41/A. Vide endorsement recorded on the same
day at 7:25 P.M. he was declared unfit for statement. The
endorsement dated 5th March, 1991 shows that he was unfit
for making statement on that date. There is another
endorsement made at 11:00 P.M. on 6th March, 1991 declaring
him unfit for any form of statement. Dr Kulbhushan Goel,
who prepared the MLC Ex. PW 41 /A, came in the witness
box as PW 4 and stated that on 4th March, 1991, the injured
was not in a position to give particulars regarding his name,
parentage and address, because of his injuries. If Hans Raj
was not in a position even to give his name, parentage and
address, it cannot be said that he was in a position to give a
narration of the incident in which he was injured. It was only
on 9th March, 1991 that this witness was declared fit for
statement by PW 51 Dr Dinesh Suman. His statement was
recorded by the police on the same day. We, therefore, find no
delay in recording of his statement.
29. It was also contended by the learned counsel for the
appellant Suresh Singhal that the FIR was a manipulation and
an afterthought since PW 10 SI Bhoop Singh had reached the
shop of the informant Lala Harkishan Dass at about 5:40 or
6:00 P.M., whereas the Rukka to the police station was sent
only at 7:30 P.M.
30. According to SI Bhoop Singh, when he left the police
station he did not have instructions to carry out any
proceedings since the SHO was to reach the spot. According
to PW 35 Inspector D.V. Singh, though the informant was
present in his shop when he reached there, he (the informant)
was in a state of breathlessness and was upset. He, therefore,
sought some time to compose. When the SHO Inspector R.S.
Dahiya reached the spot from Deen Dayal Upadhyay Hospital,
this witness told him about the state of mind of the informant
and thereafter the statement of Lala Harkishan Dass was
recorded by the SHO, in his presence. We need to appreciate
that the informant Lala Harkishan Dass who was an elderly
person, had witnessed a serious incident of shooting in his
office just a short while ago and the persons who indulged in
firing as well as the victims of the firing, were his invitees. It
was, therefore, quite natural that he had got upset on
witnessing the incident and, therefore, needed some time to
compose himself. It must have taken some time for the
Investigating Officer to record the statement of the informant.
Since the Rukka was sent to the police station at about 7:30
P.M. and the FIR was registered immediately thereafter, we
find no delay in registration of the FIR. According to PW 50
Shri S.K. Kaushik, who was the Metropolitan Magistrate of
Police Station Nangloi at the relevant time, a copy of the FIR
was received by him at 9:00 P.M. on 4th March, 1991 and he
made endorsement Ex. PW 50/A on the copy of the FIR Ex.
PW 32/F. It was pointed out by the learned counsel for the
appellant Suresh Singhal that this witness had noted the time
as 9:00 A.M. and not 9:00 P.M., on the endorsement made by
him on the copy of the FIR, which indicates that the copy of
the FIR was received by him at 9:00 A.M. on the next date and
not at 9:00 P.M. on 4th March, 1991. We are unable to accept
the contention. The witness had noted not only the time but
also the date of receipt of the copy of FIR, in the endorsement
made by him. Since the incident took place not before 5:00
P.M. on 4th March, 1991, there could be no question of the
witness receiving a copy of the FIR at 9:00 A.M. on that date.
Obviously, there was an error in writing A.M. instead of P.M.
on the endorsement made by the witness. It would be
pertinent to note here that this witness was not cross-
examined by accused persons despite opportunity given to
them and, therefore, his deposition to the effect that he
received the copy of the FIR at 9:00 P.M. on 4th March, 1991,
has gone virtually unchallenged.
31. It was also pointed out by the learned counsel for the
appellant Suresh Singhal that the gist of the FIR was not
recorded in the Daily Diary of the police station as required by
Punjab Police Rules which indicates that the FIR was ante
timed and that is why its gist was not recorded in the Daily
Diary, which is a document incapable of manipulation. We,
however, are not inclined to accept the argument considering
the fact that the copy of the FIR was received by the concerned
Metropolitan Magistrate at 9:00 P.M. on the same date, and
that rules out any reasonable possibility of a colored version
having been introduced therein at a later point of time. We
also note that during the course of arguments before the trial
court it was contended that registration of FIR was delayed till
arrival of PW 4 Raj Kumar on the spot. As rightly held by the
learned Trial Judge, had the intention been to wait till arrival
of PW 4 Raj Kumar to the office of the informant, the FIR
would have contained version of the whole incident and not
only a part of the incident. The fact that the FIR contains the
version only up to the time the informant escaped from the
rear door after a shot was fired on Shyam Sunder clearly
shows that the Investigating Officer did not manipulate or
doctor the FIR.
32. The learned counsel for the appellant Suresh Singhal
has relied upon the decision of this Court in Lala Ram & Anr.
v. State: 36(1988) DLT 8 where it was found that substance of
the statement made by the complainant Babu Ram to SI
Dharampal on the basis of which an FIR was registered at the
police station was not entered in the Daily Diary inasmuch as
it did not give the name of the accused nor the names of
witnesses or any other details in regard to the occurrence and
this fact was admitted by PW 8 Jaipal Singh during his cross-
examination. In these circumstances, it was observed that the
entry made in the Daily Diary did not comply with the
requirement of section 154 of Cr.P.C. and Rule 24.1 of the
Punjab Police Rules. It was further observed that the failure
to enter the substance of the FIR in the Daily Diary was
indicative of the fact that when the said entry was made, full
facts in regard to the occurrence were not known.
The purpose of the requirement to reduce the
substance of the information in the Daily Diary is to ensure
that a coloured version of the incident, subject matter of the
FIR, is not introduced at a later point of time. Hence, mere
failure to record the information in the Daily Diary cannot
result in suspecting the case of the prosecution, when it is
shown that there was no reasonable possibility of any such
manipulation in the FIR. In the case before us, since the
concerned Metropolitan Magistrate had received the copy of
the FIR within about 1-1 ½ hours of the time it is shown to
have been recorded, there was no reasonable possibility of a
coloured or doctored version of the incident having been
introduced by the Investigating Officer at a later point.
Another important circumstance in this regard is that the FIR
was registered on the statement of PW 2 Lala Harkishan Dass
who narrated only that part of the incident to the police which
had taken place in his presence. Had there been any
manipulation in the FIR, it would have contained description
of the entire incident and not only of a part of it.
33. It was also contended by learned counsel for the
appellant Suresh Singhal that though the case of the
prosecution is that the deceased Shyam Sunder and the
appellant Suresh Singhal were face to face with each other
when the shot was fired at the deceased, the sole injury
received by Shyam Sunder was on the right side of his back.
Whereas the entry wound, in such a position, should have
been on the front portion of the deceased, which shows that
the version of the incident given by the witnesses is not
correct. This contention was also raised before the trial court
and was repelled, with convincing reasons. As rightly noted by
the Trial Court, Shyam Sunder being a living human being,
there was a possibility of involuntary movement of his body
with a view to protect himself and this might not have been
noticed either by Hans Raj or by Raj Kumar. It was also noted
that a circular wound was found by PW 10 Dr Baruah on the
dead body of Shyam Sunder. Referring to Taylor, he noted
that the shape of the entrance is usually circular, if the bullet
strikes at right angle to the surface and, therefore, appearance
of the entry would suggest that the bullet came at right angle.
He was of the view that after entering the body the bullet
might have been deflected by the body tissues. The learned
Trial Judge, therefore, felt that Shyam Sunder must in all
probability have seen Suresh Singhal taking out the revolver
and, therefore, he might have ducked or turned. He also
noted that Shyam Sunder had got up when challenged by the
appellant Suresh Singhal and, therefore, he was not sitting at
the time he was shot at. We see no reason to take a view
different from the view taken by the learned Trial Court in this
regard. We need to keep in mind that the case of the
prosecution is that there was some altercation between the
appellant Suresh Singhal and deceased Shyam Sunder, as
soon as Suresh Singhal entered the office of the informant.
Obviously, that must have engaged the attention of all those
who were present in the office of the informant at that time.
No one present in the office at that time had an inkling that
the appellant Suresh Singhal would take out a revolver and
fire at Shyam Sunder. The very act of the appellant Suresh
Singhal in taking out a revolver from his pocket must have
terrified the witnesses. In such a circumstance, it would be
wholly unrealistic to expect them to take note of the movement
of Shyam Sunder at that point of time. Therefore, there would
be nothing unusual in the witnesses not noticing such a
maneuver on the part of the deceased. Since deceased Shyam
Sunder was face to face with Suresh Singhal, he would have
noticed him taking out his revolver, and the natural human
instinct of self preservation would have made him make an
attempt to save himself by changing his position, so that the
shot does not hit his body. More importantly, as noted earlier
by us only two persons, the appellant Suresh Singhal and his
father Pritpal Singh were the persons armed with fire arms in
the office of the informant on that date. Hence, the shot on
deceased Shyam Sunder could have been fired either by
Suresh Singhal or by his father late Pritpal Singhal. It is not
the case even of the appellant Suresh Singhal that the shot on
deceased Shyam Sunder was fired by his father. Even the
informant Lala Harkishan Dass, during his examination-in-
chief, was emphatic in saying that it was appellant Suresh
Singhal who had fired on deceased Shyam Sunder. In these
circumstances, we see no reason to disbelieve the version
given by PW 3 Hans Raj.
34. The learned counsel for the appellant, Suresh
Singhal has referred to Awadesh and Anr. vs State of M.P.
1988 (2) SCC 557 where according to the eyewitnesses the
deceased was at higher level when he received gunshot
injuries and the appellants were at a lower level, whereas in
the opinion of the doctor the person who caused injuries to the
deceased was at a higher level since direction of the injuries on
the body of the deceased was found to be from upper part to
the lower part. The Supreme Court therefore, felt that the
witnesses had not seen the actual occurrence. However, in the
case before us, PW3 Hans Raj being the person who was
seriously injured in the incident which took place in the office
of the informant on 4th March, 1991 his presence during the
occurrence cannot be disputed. Moreover, the appellant
Suresh Singhal and his father Late Pritpal Singhal being the
only persons armed with fire weapons in the office of PW2 on
that day and as many as 7 shots having been fired from
revolvers, his involvement in the incident can hardly be
disputed.
35. The learned counsel has next referred to State of
Rajasthan vs Magram 2009 SCC 589 where the evidence of
the eyewitnesses did not find support from the medical
evidence, since the deceased had received 5 incised injuries
and 7 injuries by blunt weapons on her chest whereas as per
the witnesses, she had received only 2 incised wounds and
therefore, the High Court on critical examination of their
testimony came to the conclusion that they were not reliable
witnesses. In the present case, however, there is no such
variation between the ocular evidence and medical evidence.
As regards the place of the injury received by deceased Shyam
Sunder, the Trial Court has taken a plausible view that the
deceased may have changed his position by ducking or
turning and in such a situation there would be no variation
between the ocular testimony and medical opinion. In any
case, as noted earlier by us, in the facts and circumstances of
this case considering the fact that the appellant Suresh
Singhal and his father were the only persons armed with fire
weapons when this incident took place and the presence of the
injured Hans Raj at the time of the incident cannot be
disputed, there is no ground to reject the testimony of the
witnesses for the reasons that according to the witnesses the
appellant Suresh Singhal and deceased Shyam Sunder were
face to face with each other whereas the injury was found on
the right side of the back of the chest of the deceased.
36. In Krishnan and Anr. vs State (2003) 7 SCC 56,
referring to the plea that the medical evidence was at variance
with ocular evidence, Supreme Court noted as under:
"...it would be erroneous to accord undue
primacy to the hypothetical answers of
medical witnesses to exclude the
eyewitnesses‟ account which had to be
tested independently and not treated as
the "variable" keeping the medical
evidence as the "constant".
37. It is trite that where the eyewitnesses‟ account is
found credible and trustworthy, medical opinion pointing to
alternative possibilities is not accepted as conclusive.
Witnesses, as Bentham said, are the eyes and ears of justice.
Hence the importance and primacy of the quality of the trial
process. Eyewitnesses‟ account would require a careful
independent assessment and evaluation for its credibility
which should not be adversely prejudged making any other
evidence, including medical evidence, as the sole touchstone
for the test of such credibility.
In Ramanand Yadav vs. Prabhu Nath Jha & Ors.
(2003) 12 SCC 606, Supreme court held as under:
"So far as the alleged variance between
medical evidence and ocular evidence is
concerned, it is trite law that oral evidence
has to get primacy and medical evidence is
basically opinionative. It is only when the
medical evidence specifically rules out the
injury as it claimed to have been inflicted as
per the oral testimony, then only in a given
case the court has to draw adverse
inference."
38. The learned counsel has also referred to Ram Narain
vs State of Punjab AIR 1975 SC 1727. In that case, the
witness took no steps to inform anybody despite the fact that a
serious occurrence resulting in gunshot injuries to the
deceased had taken place in his presence and therefore his
conduct was found to be unnatural. The witness had found 2
empty cartridges lying on the spot but did not care to collect
them and produce them to police, when he went there to lodge
FIR. According to the witness when the appellant Ram Narain
fired a shot from his gun Teja Singh had put his arm on the
right side of his chest. The court felt that this particular
posture was a most conspicuous fact which could not have
been missed by the witness if he was really there and in that
case this fact should have been mentioned in the FIR. There
were a number of other discrepancies in his testimony
including variance with the medical evidence. The ballistic
expert also did not support the information given by the
witnesses. It was in these circumstances that the testimony of
the witnesses was rejected by Supreme Court. However, the
facts of the present case are altogether different. There is no
material discrepancy in the testimony of PW3 Hans Raj and
PW4 Raj Kumar. Considering the atmosphere that prevailed in
the office of PW 2 at that time, the maneuver of the deceased
in ducking or turning was not so conspicuous, that it must
necessarily have drawn the attention of PW 3 and/or PW 4
who themselves would have been terrified, when their brother
was, all of a sudden shot, dead in their presence. Though the
ballistic expert in this case has opined that the fire arms
seized from the appellant Suresh Singhal and his father
Pritpal Singhal were not those which were used in the
shooting which took place on 4th March 1919, that by itself is
of no consequence, when the ocular evidence produced by the
prosecution is reliable and has successfully withstood the test
of cross-examination. In the facts and circumstances of the
case it appears to us that the weapons used by the appellant
and his father on 4th March 1991 were disposed of or
destroyed by them and they were deliberately carrying other
fire arms at public places in order to misguide the
Investigating Agency.
39. The learned counsel has lastly referred to Mani Ram
vs State of MP Supp. (2) SCC 289 where the Supreme Court
observed that where direct evidence is not supported by expert
evidence, then the evidence is wanting in the most material
part of the prosecution and therefore it would be difficult to
convict the accused on the basis of such evidence. However, in
the present case, we find no material variation between the
testimony of PW3 and PW4 and the medical evidence.
The learned counsel for the appellant Suresh Singhal
has also referred to Seriyal Udayar vs State of Tamil Nadu
1987 (2) SCC 359 and Mohinder Singh vs State 1950 SCR
821. Neither of these judgments is attracted to the facts and
circumstances of the case before us.
40. The learned counsel for the appellant Suresh Singhal
also contended that since the independent witnesses produced
by the prosecution did not support the case set up by it and
PW 4 Raj Kumar was not present on the spot, the testimony of
PW 3 Hans Raj should not be believed in the absence of
independent corroboration, particularly when some other
persons who were present in the office of PW 2 have not been
examined by the police. He has in this regard referred to
State of Punjab vs. Harbans Singh & Anr.(2003) 11 SCC 203.
In the case of Harbans Singh (supra) the accused and PWs
belonged to different political factions and were not on friendly
terms. PW 4 was closely connected with the deceased. It was
also found that PW 4 and PW 11 had antecedents of appearing
as frequent prosecution witness. Independent witnesses were
not examined and no blood stains were found on the cloths of
PW 4 and PW 11 in spite of their carrying the injured persons.
No injury was found on their person. There was discrepancy
between oral evidence and medical evidence. It was in these
circumstances that the appeal filed by the State against
acquittal of accused persons was dismissed by Supreme
Court. The facts of the case before us, however, are altogether
different. A number of independent persons who were present
at the time of incident were examined. It was not necessary to
examine each and every person present in the office of PW 2 at
the time of the incident. PW 3 Hans Raj being the injured in
this case, his presence at the time of occurrence cannot be
denied. The injured is the best witness of the incident in which
injuries were caused to him and, therefore, his testimony is
entitled to great weight. The presence of such a witness at the
time and place of occurrence cannot be doubted. It is not
likely that he would spare the real assailant and implicate an
innocent person. Being the victim of crime, he would be most
keen to ensure that the real culprit does not go scot free. In
Mer Dhana Side vs State of Gujarat AIR 1985 SC 386, it was
held by the Supreme Court that it would require very
convincing submissions to discard the evidence of the injured
witnesses whose injuries would at least permit a reasonable
inference that they were present at the time of occurrence.
Undoubtedly, this is subject to the requirement that there
must be evidence to show that these witnesses received
injuries in the same occurrence. In Machhi Singh vs State of
Punjab 1983 Crl. LJ 1457 one witness Hakam Singh himself
had sustained injuries in the course of incident in question. It
was observed by the Supreme Court that it was difficult to
believe that he would implicate the persons other than the real
culprits and that the evidence of that witness alone was
sufficient to bring home the guilt of the appellants, even if one
were to exclude from consideration the evidence of other PWs.
Identical view was taken by the Hon‟ble Supreme Court in a
number of other cases, including Makan Jivan and Ors. vs
State of Gujarat: AIR 1971 SC 1797; Mori Lal and Anr. vs
State of U.P. AIR 1970 SC 1969; and Jamuna Chaudhary
and Ors. vs State of Bihar AIR 1974 SC 1822. Even PW 2, PW
26, PW 27 and PW 29 have partly supported the case set up
by the prosecution. Even if the deposition of PW 4 Raj Kumar
is excluded from consideration, the testimony of the injured
Hans Raj coupled with part corroboration of his testimony
from the other witnesses is sufficient to prove the case set up
by the prosecution.
41. The main contention of the learned counsel for the
appellant Suresh Singhal before us was that taking the version
given by prosecution witnesses to be correct, this was a case
covered either under exception I or exception IV to section 300
of the Indian Penal Code. He pointed out that according to PW
2 Lala Harkishan Dass, a scuffle had ensued in his office
between Suresh, Krishan Lal, Shyam Sunder, Raju and Hans
Raj. According to this witness, a gutham gutha had taken
place between them by which he meant hatha pai, though
according to him Suresh Singhal did not sustain any injury as
it was a matter of only one minute. According to PW 3
Subhash Chand Mahajan a quarrel had taken place at the
entrance gate of the office and Suresh Singhal fell down on the
ground though he did not know who had made him fell on the
ground. According to this witness during the scuffle he also
did not see who had pressed the throat of Suresh Singhal. PW
26 Tilak Raj also stated that there was a scuffle between a
person from Bahadurgarh and a person from the other party
which had come later. According to him the scuffle took place
in the office at a distance of about 2-4 paces from the gate.
PW 27 Sarover Kumar stated that there was a scuffle between
Suresh Singhal at one side and 3-4 persons of Krishan Lal on
the other side. PW 30 Tarsem Kumar, however, stated that a
quarrel started as soon as both the Singhals entered the office
of the informant though he did not see either Suresh Singhal
or any other person falling on the floor. He also did not see
Shyam Sunder strangulating Suresh Singhal or Hans Raj and
Krishan Lal beating him. ]
42. Exception I. In order to bring the case within
Exception I, the following conditions must be complied with:
(i) The deceased must have given
provocation to the accused;
(ii) The provocation must be grave;
(iii) The provocation must be sudden;
(iv) The offender, by reason of the said
provocation, shall have been deprived of
his power of self-control;
(v) He should have killed the deceased
during the continuance of the deprivation
of the power of self-control; and
(vi) The offender must have caused the
death of the person who gave the
provocation or that of any other person by
mistake or accident.
43. Once the prosecution proves that the act committed
by the accused had resulted in the death of a person, it is for
the accused, who seeks to reduce the nature of the crime
committed by him by claiming the benefit of the Exception to
prove that the provocation received by him was grave as well
as sudden, was such as might reasonably be deemed sufficient
to deprive him of self control and that the act of killing was
committed whilst absence of control still existed and can
reasonably be attributed to it.
This proposition of law is well settled and was
reiterated by Supreme Court in the case of Ram Kishan Vs.
State of Rajasthan JT 2000 (4) SC 350.
44. Provocation is some act or series of acts committed
by the deceased to the accused which would cause, in a
reasonable person, and which actually causes in the accused,
a sudden and temporary loss of self control, rendering the
accused so subject to passion, as to inspire him to kill the
person who gave the provocation. The test to ascertain
whether the accused acted under grave and sudden
provocation is as to find whether the provocation given to him,
in the facts and circumstances of the case, was likely to cause
a normal reasonable man, belonging to the same class of
society to which the accused belongs, and placed in the same
situation in which the accused was placed to lose control of
himself, to the extent of inflicting the injury or injuries that he
actually inflicted. An unusually excitable, hot tempered or
hypersensitive individual is not entitled to the benefit of
Exception I to Section 300 of IPC, if the provocation received
by him was not such as would have led an ordinary person to
act the way he did. If it appears to the Court that the action of
the accused was out of all proportions to the gravity or
magnitude of the provocation offered to him, the case will not
fall under the Exception. Another requirement of Exception I
to Section 300 of IPC is that the provocation must have come
from the victim and if it comes from someone else, the
Exception does not apply and the accused cannot claim its
benefit. Also it is not a trivial provocation or a petty
altercation which amounts to grave provocation within the
meaning of the Exception. The provocation should be of such
a decree that the person who is given provocation ceased to be
the master of his understanding becomes incapable of cool
reflection and lose control over his passions. An ordinary man
normally does not loses his self control on account of mere hot
exchange of words or even abuses and, therefore, such an
exchange cannot be termed as a grave provocation within the
meaning of Exception I to Section 300 of IPC.
45. In the case before us, the appellant Suresh Singhal
did not claim any provocation from the deceased Shyam
Sunder or Krishan Lal. No such plea was setup by him either
in his statement under Section 313 of Cr.P.C or during cross-
examination of witnesses. Of course, if the Court can cull out
material from the evidence pointing to the existence of
circumstances leading to invocation of exception, failure of the
accused to setup such a defence would not foreclose his right
to rely upon the Exception. But, where the plea taken by the
accused is of a total denial of his involvement in the incident
in which murder is committed, it would definitely have bearing
when such a plea is taken for the first time during the course
of arguments.
46. In the case before us, there is no evidence even of any
provocation having been given to the appellant Suresh Singhal
by deceased Shyam Sunder or any of his brothers, not to talk
of grave provocation. Though we have evidence of an
altercation between the appellant Suresh Singhal and
deceased Shyam Sunder, if we go by the deposition of PW 3
Hans Raj and PW 4 Raj Kumar there was absolutely no
provocation from them to the appellant and it was the
appellant Suresh Singhal himself who picked up the
altercation with deceased Shyam Sunder. PW 2 Lala
Harkishan Dass, PW 23 Subhash Chand Mahajan, PW 26
Tilak Raj and PW 27 Sarovar Kumar though they speak of
scuffle do not tell the court as to what had transpired between
the appellant and the deceased and their brothers before the
alleged scuffle took place. Therefore, even if it is presumed
that a scuffle had taken place as claimed by these witnesses
no case of grave provocation by either of the deceased persons
is made out in this case. In any case there is no evidence of
any such provocation from the deceased persons as would
have deprived a normal person placed in the position of the
appellant Suresh Singhal, of his power of self control and
would have inspired him to kill the deceased. Therefore, no
case for extending the benefit of exception (i) to section 300 of
Indian Penal Code is made out in the facts and circumstances
of this case.
47. The case of the prosecution, as set out in the FIR, is
that as soon as the appellant Suresh Singhal entered the office
of the informant, there was an altercation between him and
the deceased Shyam Sunder. The informant did not disclose,
in the FIR, as to what exactly was the altercation between the
appellant and the deceased. When he came in the witness
box, he stated in his examination-in-chief that as soon as the
appellant Suresh Singhal entered his office a talk took place
between him and Shyam Sunder, followed by a scuffle
between him(the appellant Suresh Singhal), deceased Krishan
Lal and Shyam Sunder and their brothers Raju and Hans Raj.
He did not tell the court as to what exactly was the
conversation between the appellant Suresh Singhal and
deceased Shyam Sunder. He was confronted with the FIR
lodged by him wherein he did not claim any scuffle between
the appellant on the one hand and deceased Shyam Sunder,
Krishan Lal, Raju and Hansraj on the other hand. He
admitted that his statement Ex. PW 2/A was read over to him
before he signed it and he had admitted it to be correct. He
did not tell the court as to why he had not referred to the
alleged scuffle, when his statement was recorded by the police.
Therefore, we are not inclined to believe his deposition to the
effect that there was a scuffle in his office, between the
appellant Suresh Singhal on the one hand and deceased
Shyam Sunder, Krishan Lal, Raju and Hans Raj on the other
hand. In fact, this witness during cross-examination by the
learned counsel for the appellant Suresh Singhal also
admitted his suggestion that the moment Suresh Singhal
came out of the car stepped inside the door of the office a
quarrel ensued between him and the appellant Suresh Singhal
and he was beaten by Krishan Lal and Hans Raj, though he
did not make any such statement either during examination in
chief or during his cross-examination by the Special Public
Prosecutor. It is, therefore, difficult for us to believe him when
he said that the appellant Suresh Singhal was beaten by
Shyam Sunder and Hans Raj. In fact, no one out of PW 23
Subhash Chand Mahajan, PW 26 Tilak Raj, PW 27 Sarovar
Kumar and PW 30 Tarsem Kumar who have referred to the
alleged scuffle claimed that the appellant Suresh Singhal was
beaten by deceased Shyam Sunder and Krishan Lal.
48. PW 23 Subhash Chand Mahajan admitted during
cross-examination on behalf of the appellant that the
appellant Suresh Singhal had fallen down on the ground and
that he saw his throat being strangulated, though he could not
see as to who had pressed his throat. The informant Lala
Harkishan Dass on the other hand stated that he did not
remember Shyam Sunder trying to strangulate the appellant
Suresh Singhal and the other two trying to beat him. PW 30
Tarsem Kumar, though he did not support the case of the
prosecution in toto, stated that he had not seen Shyam
Sunder strangulating Suresh Singhal and Hans Raj and
Krishan Lal beating him. The reason given by him was that he
had run away after the shot was fired. Since the first shot was
fired at deceased Shyam Sunder and that was the only shot
fired at him, the alleged strangulation if it had taken place,
would have happened before Shyam Sunder was shot dead by
the appellant Suresh Singhal. PW 26 Tilak Raj and PW 27
Sarovar Kumar also did not say that the appellant Suresh
Singhal had fallen down and an attempt was made to
strangulate him. Therefore, the deposition of PW 23 Subhash
Chand Mahajan claiming attempt to strangulate the appellant
Suresh Singhal cannot be believed.
49. As regards the alleged scuffle, whereas PW 2 Lala
Harkishan Dass and PW 27 Sarovar Kumar claimed that there
was a scuffle between the appellant Suresh Singhal on one
side and 3-4 persons (deceased and Shyam Sunder and
Krishan Lal brothers PW 3 Hans Raj, PW 4 Raju) on the other
side, according to the PW 26 Tilak Raj the scuffle was between
one person from Bahadurgarh and one person from the other
party which had come later. On the other hand, PW 3 Hans
Raj whose presence during the occurrence cannot be disputed
he being a stamped witness, and his brother PW 4 Raj Kumar
did not admit any such scuffle. Considering the fact that
there was no reference to the alleged scuffle during the course
of investigation and the plea of scuffle has been negated not
only by PW 3 Hans Raj, PW 4 Raj Kumar but also by PW 30
Tarsem Kumar and further considering the contradiction as to
whether scuffle was between the appellant Suresh Singhal and
one person from the complainant side or between him and 3-4
persons from the complainant side, we find it difficult to
believe the story of scuffle set up by the appellant.
50. The learned counsel for the appellant Suresh Singhal
also referred to the MLC of deceased Shyam Sunder to support
the plea of scuffle set up by him. It was pointed out that a
circular wound with black margin was found on the back right
side of the chest of the deceased and according to PW 49 Dr.
D.D. Gulani such a wound with black margin was possible
when muzzle of the fire arm was in the range of 15 cm to 90
cm from the target. The argument was that the blackening
shall occur only when the shot was fired from a close range
and not from a distant range. This plea was negated by the
learned Trial Judge, considering the testimony of PW 8 Dr.
L.K. Baruah who conducted the autopsy on the dead body of
the deceased and who was of the opinion that the bullets were
fired from a distant range. The learned Trial Judge was of the
view that had Suresh Singhal fallen on the ground that would
have rendered him immobile and he could not have taken out
his revolver and accordingly he rejected the theory of scuffle.
He referred to the decision of a Division Bench of Allahabad
High Court in Sheo Shankar vs. State 1953 Crl. L.J. 1400
wherein despite the opinion of the doctor that the wounds
were due to gun being fired by placing it on the chest or from
within a range of one yard, the High Court, referring to the
Taylor‟s Principles and Practices of Medical Jurisprudence
(10th edition), had held that the doctor was wrong and had got
misguided on account of black margins of the wounds which
were due to something other than firing of gun from a very
close range. He also noted that Dr. Baruah had not observed
any scorching, charring and tattooing of the wound and
accordingly he discarded the contention that the shot on
Shyam Sunder was fired from a close range. We find that even
PW 49 Dr. D.D. Gulani does not say that blackening of wound
was not possible unless the shot was fired from a close range.
According to him it was only a possibility that such a wound
could be caused when the muzzle end of the weapon was in
the range of 15 cm to 90 cm from the target. When PW 8 Dr.
L.K. Baruah came in the witness box, he was not cross-
examined at all and no suggestion was given to him that the
wound received by the deceased was not possible unless the
shot was fired from a close range. In these circumstances, we
find it difficult to take a view contrary to the view taken by the
learned Trial Judge.
Exception IV
51. An accused is entitled to the benefit of exception (IV)
to section 300 of the Indian Penal Code only if the act
committed by him satisfies the following conditions:
(i) It is committed without premeditation;
(ii) it is committed in a sudden fight; and
(iii) the act is committed in the heat of passion upon
a sudden quarrel, provided the offender does not take
any undue advantage and does not act in a cruel and
unusual manner.
This Exception deals with a case where the heat
generated by passion clouds the sober reasoning of the man
and compels him to do an act which he, would not have done
in a sober state of mind. In such a case, there is no
deliberation or determination to fight with each other and the
quarrel takes place at the spur of the moment for which both
the parties are to be blamed. In a case of this nature, the
quarrel may have been started by one party, but it would not
have taken a serious turn had it not been aggravated on
account of some act or conduct of other party.
All the above conditions must exist before this
exception is invoked. Even if one of the aforesaid conditions
is missing. The case of the accused cannot be brought within
the purview of this exception.
52. Normally, the word „fight‟ is used to convey something
more than a verbal quarrel, since fight postulates bilateral
transactions in which blows are exchanged from both the
sides, though it is not necessary that weapons should be used
in the fight. However, in the facts and circumstances of a
given case, a hot exchange of words between two or more
persons may also be taken as „fight‟ within the meaning of
exception (IV) to section 300 of the Indian Penal Code even if
there is no exchange of blows, provided that all other
conditions stipulated in the exception are satisfied. Whether
hot exchange of words and/or abuses amount to fight within
the meaning of this exception or not, would depend upon the
facts and circumstances of each case and no hard and fast
rule can be laid down in this regard.
53. „Undue advantage‟ would mean an unfair advantage.
The nature of the weapon used by the accused and the
manner of attack made by him have a material bearing while
deciding whether the accused had taken an undue advantage
or not. If the nature of the fight does not justify the use of
weapon actually used by the accused, this would clearly
amount to taking undue advantage of the victim and would
take the case of the accused out of the purview of exception
(IV) to section 300 of the Indian Penal Code. After considering
the facts and circumstances of the case including the nature
of the quarrel between the accused and the deceased, if it is
found that use of the weapon actually used by the accused
was wholly unjustified and unwarranted, that by itself may
amount to acting in a cruel manner and may deprive the
accused of the benefit of this exception.
54. In the present case admittedly, neither of the
deceased persons nor any of their brothers were armed with
weapons. If the testimony of PW 3 Hans Raj and PW 4 Raj
Kumar are accepted in this regard, it was the appellant Suresh
Singhal himself who picked up an altercation with the
deceased and then shot him dead. If the testimony of these
two brothers is excluded from consideration, the court does
not know what exactly was the conversation which preceded
the firing by the appellant Suresh Singhal. If two persons are
fighting one of them is unarmed while the other used a deadly
weapon such as a revolver the one who uses a weapon of this
nature can be said to have taken undue advantage and may
not be entitled to benefit of this exception. More importantly,
the appellant Suresh Singhal did not stop at giving one deadly
shot to deceased Shyam Sunder. He and/or his father, acting
in furtherance of common intention which, probably was
formed on the spot and which they shared with each other,
fired as many as eight more shots killing one more brother and
seriously injuring the third brother Hans Raj. They knew that
the victims being wholly unarmed were not in a position to
offer any resistance to them. Despite that, shot after shot
were fired by them. More importantly, the shots fired by the
appellant Suresh Singhal/or his father late Pritpal Singh hit
only Shyam Sunder, Krishan Lal and Hans Raj, which leaves
no reasonable doubt that they were selectively targeted by the
appellant and/or his father. As noted earlier, no other person
present in the room sustained any injury and no bullet hit
floor, walls or ceiling of the room or any object such as the
furniture lying in that room. This shows that it was not a case
of indiscriminate firing under scare and the appellant and his
father were selecting their targets and then shooting at them.
In such circumstances it is not possible for us to accept that
they did not took any undue advantage of the victims or did
not act in a cruel manner.
55. The learned counsel for the appellant Suresh Singhal,
while claiming benefit of exception (IV) to section 300 of the
Indian Penal Code has relied upon Surender Kumar vs.
Union Territory of Chandigarh, 1989 (2) SCC 217,
Chonadam Karunan Alia perinjili vs. State of Kerala 1994
SCC (Cri) 501, K. Palraj vs. State 2008 Crl.L.J. 4236,
Gainthabuda vs. State 2004 Crl. J. 1569, Bihari Rai vs.
State of Bihar 2008 (15) SC 778, Ranjit Singh Chandra
Singh Atodaria vs. State of Gujarat AIR 1994 SC 1060,
Akhtar vs. State AIR 1964 All. 262, Ravindra Shalik Naik &
Ors. vs. State of Maharashtra (2009) 12 SCC 257 and
Lachman Singh vs. State of Haryana 2006 (1) SCC 524. The
learned counsel for the State on the other hand has relied
upon Shaukat vs. State of Uttaranchal (2010) 2 SCC (Crl.).
56. In the case of Surender Kumar (supra), there was a
dispute between the parties with respect to possession of a
kitchen. PW 2 and the deceased entered the room of the
appellant and uttered filthy abuses in the presence of latter‟s
sister. Since tempers ran high, PW 2 took out a pen knife,
whereas the appellant picked up a knife from the kitchen and
inflicted a simple injury on his neck. The deceased intervened
on the side of the PW 2 and in the course of the scuffle
received three injuries one of which proved fatal. In these
circumstances benefit of exception (IV) of section 300 was
given to the appellant. In the case of Chonadam (supra), the
deceased PW 2 and the accused were digging grave when the
accused began to quarrel with PW 2 and the deceased was
pushed by him to a distance. In that sudden quarrel without
pre-meditation, the accused lost his temper and in a heat of
passion stabbed the deceased, causing a single injury on his
neck which caused his death. The conviction of the appellant
was converted from section 302 to section 304 part (II) of IPC.
In the case of K. Palraj (supra), it was found that the accused
had stabbed the deceased only due to a sudden quarrel and
due to refusal of the deceased to settle his dues, which had
resulted in a wordy quarrel between them. Only one knife
blow was given to the deceased though on the right side of his
abdomen. It was held that there was no intention of causing
death of the deceased. In the case of Bihari (supra), there was
long standing dispute between the parties and litigation was
also pending between them. There was evidence that the
accused and the deceased had quarreled just before the
occurrence and thereafter the accused had inflicted axe blows
on the deceased which had resulted in his death. In these
circumstances, he was convicted under section 304 (I) of IPC.
In the case of Gainthabuda (supra), the deceased and his
family members had forcibly entered into a disputed field and
cut and removed paddy therefrom. When the deceased were
gossiping after cutting and removing the paddy, the accused
persons came there and gave 2-3 blows on the neck of one of
the deceased persons. Noticing that the sentiments attached
to the properties in our country sometimes cross all barriers or
relationships and sometime people are more attached to
properties than thinking about the life of others and
considering other facts and circumstances of the case
Supreme Court held that the conviction of the appellant was
justified only under part (II) of Section 304 of IPC. In the case
of Ranjit Singh (supra), there was a dispute between the
appellant and the accused over a house for which rent was
being paid by the deceased during the period the appellant
was in jail in another case. On coming out of the jail the
appellant demanded rent from the deceased for that house,
which was refused by the deceased, who also refused to give
possession of the house to the appellant. On the day of the
incident, the accused persons met the deceased and again
asked him to hand over possession of the house, whereupon a
quarrel ensued and during the quarrel a knife blow was given
on the neck of the deceased. In these circumstances
conviction of the appellant was altered to one under section
304(II) of IPC. In the case of Akhtar (supra), the appellant
who was brother of the deceased was under stress of previous
provocations but had controlled himself until he was provoked
again by use of foul and filthy hurled at his father and at him
by his own brother who had also aggressively advanced
towards him. The mother of the accused and the deceased
was also present when these highly abusive words were
uttered by the deceased within the hearing of the appellant
and others in a crowded locality. The appellant losing self
control, seized a knife which came to his hand then and there
and suddenly stabbed the deceased twice. Holding that there
was a grave and sudden provocation to the appellant who had
no time to cool down, Supreme Court held that he was entitled
to the benefit of exception (I) to section 300 of IPC. In the case
of Ravinder (supra), there was a quarrel between the accused
and the other party when a bundle of cotton/grass of the
accused hit the roof of the complainant and damaged it. A
quarrel thereupon ensued, between the parties. The
appellants brought an axe, knife and gupti from their house
which was nearby and inflicted injuries on the head and
abdomen of the deceased using those weapons. The Supreme
Court held that the appellant were liable to the convicted
under section 304 (I) of IPC. In the case of Lachman Singh
(supra), there was a previous dispute and altercation between
the parties on construction of a room. On the day of the
incident, there was exchange of abuses between accused
Lachman Singh and Randhir Singh who were standing on the
roof of their house on one hand and deceased Naseeb Singh
and other who were standing on the roof of their kitchen, on
the other hand, over the issue of flow of water. Accused Dev
Singh got infuriated and asked his son Lachman Singh to
bring revolver from inside. Thereupon Lachman Singh
brought a revolver and shot the deceased on being instigated
by accused Dev Singh. Thereafter Dev Singh took the revolver
from Lachman Singh and started firing shots which hit
Jaswant Singh and Angrez Singh. After analyzing the
evidence, Supreme Court altered the conviction of Lachman
Singh from section 302 to section 304 part (I) of IPC. In the
case of Shaukat (supra) the appellant and his father followed
the deceased, picked up a quarrel with him and murdered
him. Noticing that the appellant had armed with a dangerous
weapon before going to the place of occurrence and had taken
undue advantage of the situation by inflicting more than one
blows on the person of the deceased it was held that exception
(IV) to section 300 of IPC was not attracted.
Considering the facts and circumstances of this case
including that deceased Shyam Sunder and Krishan Lal as
well as his brothers were unarmed whereas the appellant
Suresh Singhal and his father Pritpal Singhal were armed
with fire arms when they went to the office of the informant
and as many as seven shots were fired by them, after
selecting their targets exception (IV) to section 300 of IPC is
not attracted to the facts and circumstances of this case.
57. For the reasons given in the preceding paragraphs,
we find no ground to interfere with the conviction of the
appellant Suresh Singhal and the sentence awarded to him.
Criminal Appeal No. 217/1997
58. The learned counsel for the State sought death
penalty to the convict Suresh Singhal on the ground that not
only he committed murder of two brothers, the third brother
Hans Raj was injured to such an extent that he still carries
some bullet inside his body. It was also pointed out the
learned counsel for the State that all the victims of the crime
were wholly unarmed whereas the convict Suresh Singhal as
well as his father late Pritpal Singhal were armed with loaded
revolvers when they went to the office of Lala Harkishan Dass
which indicates that they had preplanned to commit murder of
all the brothers on that day.
59. The learned trial Judge was of the view that Suresh
Singhal and his father had not preplanned the murders when
they came to the house of Lala Harkishan Dass on 4th March
1991 and that the common intention to commit murder of the
victims developed there and then on the spot. In the facts and
circumstances of the case, we find it difficult to accept that the
murder of Shyam Sunder and Krishan Lal had been
preplanned. Had Suresh Singhal and his father late Pritpal
Singhal preplanned the murder, they would have chosen some
other place to execute their plan and would not have done it in
the office of the informant, in the presence of a number of
persons. The convict Suresh Singhal and his father late
Pritpal Singhal knew that a number of persons including the
informant Lala Harkishan Dass and the members of the
Gurdaspur Party would be present in the office of the
informant on that day and in the event of Krishan Lal and his
brother(s) having murdered there, all these persons would be
eye-witnesses against them. It is, therefore, highly unlikely
that they would have planned to commit murders at that
place. It is true that both of them were armed with loaded
revolvers when they came to the office of the informant on that
day. But, that, in our view, in the facts and circumstances of
the case, does not necessarily mean that they had preplanned
the murder, though it does show that they were fully prepared
to meet any eventuality and go to any extent including use of
the firearms they were carrying with them.
60. The question as to which are the cases justifying
awarding of capital punishment has been subject matter of a
number of decisions of the Supreme Court. In Bachan Singh
vs State of Punjab (1980) 2 SC 684, while upholding
constitutional validity of the death penalty, it was held by
Supreme Court that for making choice of punishment or for
ascertaining the existence or absence of special reasons in the
context of section 354(3) and 235(2) of Cr.P.C, the court must
pay due regard both to the crime and the criminal. What is
the relative weight to be given to the aggravating and
mitigating factors, depends on the facts and circumstance of
the particular case. Some of the mitigating circumstance
could be the age of the accused and the probability that the
accused would not commit criminal acts of violence as would
constitute continuing threat to society. It was observed that in
a sense to kill is to be cruel and, therefore, all murders are
cruel, but, such cruelty may vary in its degree of culpability
and it is only when the culpability assumes the proportion of
extreme depravity that special reasons can legitimately be said
to exist. The Court held that for a person convicted of murder,
life imprisonment is the rule and death sentence is an
exception and life ought not to be taken through the
instrumentality of law save in the rarest of rare cases when
the alternative option is unquestionably foreclosed.
61. In Machhi Singh vs State of Punjab AIR 1983 (3)
SCC 470, while addressing the practical application of "rarest
of rare cases", rule laid down in the case of Bachan Singh
(Supra), Supreme Court gave the following illustrations which
normally would attract death penalty:-
(a) Manner of commission of murder - When the murder is
committed in an extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense
and extreme indignation of the community.
(b) Motive for commission of murder - When the murder is
committed for a motive which evinces total depravity and
meanness.
(c) Anti-social or socially abhorrent nature of the crime -
When murder of a member of a Scheduled Caste or
minority community, etc. is committed not for personal
reasons but in circumstances which arouse social wrath
or in cases of "bride burning" or "dowry death" or when
murder is committed in order to remarry for the sake of
extracting dowry once again or to marry another woman
on account of infatuation.
(d) Magnitude of the crime - When the crime is enormous in
proportion. For instance when multiple murders, say of
all or almost all the members of a family or a large
number of a particular caste, community, or locality, are
committed.
(e) Personality of victim of murder - When the victim of
murder is an innocent child, or a helpless woman or old
or infirm person or a public figure generally loved and
respected by the community.
62. The Court added that the following two questions
might be asked and answered as a test to determine the rarest
of rare case, in which death sentence could be inflicted:
(a) Is there something uncommon about the crime which
renders sentence of imprisonment for life inadequate and
calls for a death sentence?
(b) Are the circumstances of the crime such that there is
no alternative but to impose death sentence, even after
according maximum weightage to the mitigating
circumstances, which speak in favour of the offender.
63. The following guidelines emerge from the decisions in
Bachan Singh (Supra) and Machhi Singh (Supra):-
(i) Life imprisonment is the rule and death sentence is an
exception, which should be imposed only where life
imprisonment appears to be wholly inadequate
punishment, considering the facts and circumstances of
the case.
(ii) Death penalty can be imposed only if special reasons
exist for doing so and the circumstances of the case are
such as to leave the Court with no alternative but to
impose death sentence, even after giving due weightage
to the mitigating circumstances.
(iii) A balance sheet of aggravating and mitigating
circumstances needs to be drawn up by the Court. Only
when the aggravating circumstances far outweigh the
mitigating circumstances, the Court would be justified in
awarding the death penalty to the convict.
64. In State of Punjab vs Manjit Singh (2009) 14 SCC
31, accused No.1 and 2 had illicit relationship with accused
No.3. When the victims were sleeping in their house and
within the precincts of a Gurudwara, accused No. 1 and 2
committed murder of the husband and three sons of accused
No.3 since the victims did not appreciate the said illicit
relationship, sometimes used to beat accused No.3 and had
restrained accused No. 1 and 2 from coming to their house.
While rejecting the appeal filed by the State seeking death
penalty to the accused persons, Supreme Court held that
though the respondent had behaved in a most cruel manner,
killing four persons while they were asleep, three of them
having been murdered within the precincts of Gurudwara,
there were certain mitigating circumstances which could not
be lost sight of. It was held that though they had acted in a
ghastly manner, they had been adequately punished by the
High Court by awarding life sentence to them.
65. In Des Raj vs. State of Punjab (2007) 12 SCC 494,
the appellate before the Supreme Court, a retired Police
Constable, fired shots from his licensed gun by repeatedly
loading the gun and killing three members of neighbour‟s
family while injuring three members of that family and an
outsider. The appellant had no criminal, anti-social or anti-
national antecedent. Noticing that it was not a murder to
satisfy any greed or lust and was not a case involving cruelty
to or torture to victim, Supreme Court was of the view that the
act of the appellant was not brutal, diabolic or revolting and
was not a rarest of the rare case warranting death penalty.
66. Despite the fact that two persons were brutally
murdered and the third one was seriously injured by Suresh
Singhal and his father late Pritpal Singhal, it cannot be said
that this case false in the category of "rarest of rare cases"
enunciated by the Supreme Court in the case of Bachan Singh
(Supra). The manner of committing murder in this case
cannot be said to be so diabolic, revolting or repulsive that the
State would be justified in taking away the life of Suresh
Singhal through instrumentality of law. This incident took
place more than 19 years ago. The appeal filed by the
appellant Suresh Singhal as well as the appeal filed by the
State seeking death penalty for him are pending for last more
than 13 years. Suresh Singhal is more than 50 years old. He
has already spent more than seven years in custody as noted
in the order of this Court dated November 3, 1999 whereby
bail was granted to him during pendency of his appeal. There
is no allegation of his having committed any other offence in
last 19 years. In the facts and circumstances of the case, it
cannot be said that the aggravating circumstances far
outweigh the mitigating circumstances nor can it be said that
Suresh Singhal has become a menace to the society and
forfeited his right to remain alive. The court, in our view, will
therefore, not be justified in awarding death penalty to the
convict Suresh Singhal. This appeal is, therefore, liable to be
dismissed.
Criminal Appeal No. 226/1997
67. The case of the prosecution against the respondent
Roshan Lal is that he accompanied Suresh Singhal and his
father late Pritpal Singhal to the office of the informant Lala
Harkishan Dass on 4th March 1991. This also has come in the
testimony of PW-3 Hans Raj and PW-4 Raj Kumar that after
Suresh Singhal had shot at deceased Shyam Sunder, they
along with their brother deceased Krishan Lal proceeded to
catch hold of him and at that time Suresh Singhal asked his
father to finish off his brother. According to them, thereafter
Roshan Lal caught hold of Raj Kumar and when Hans Raj and
Krishan Lal were running outside on receiving bullet injuries,
deceased Pritpal Singhal asked the respondent Roshan Lal to
leave him and bring a gun from the vehicle parked outside so
that the fourth brother also did not survive and Roshan Lal,
leaving Raj Kumar, ran towards the car for bringing a gun.
The trial court believed that the respondent Roshan Lal had
accompanied Suresh Singhal and his father late Pritpal
Singhal to the office of the informant on that day but, declined
to believe that he had held PW-4 Raj Kumar and had ran
towards the car of the appellant, when asked by Pritpal
Singhal to bring the gun from his vehicle.
68. As regards the guidelines to be followed by High
Court while considering an appeal against acquittal of the
accused, in Ajit Savant Majagvai vs State of Karnataka
(1997) 7 SC 110, the following principles were reiterated by
Supreme Court:-
(i) In an appeal against an order of acquittal, the High
Court possesses all the powers, and nothing less than the
powers it possesses while hearing an appeal against an order
of conviction.
(ii) The High Court has the power to reconsider the
whole issue, reappraise the evidence and come to its own
conclusion and findings in place of the findings recorded by
the trial court, if the said findings are against the weight of the
evidence on record, or in other words, perverse.
(iii) Before reversing the finding of acquittal, the High
Court has to consider each ground on which the order of
acquittal was based and to record its own reasons for not
accepting those grounds and not subscribing to the view
expressed by the trial court that the accused is entitled to
acquittal.
(iv) In reversing the finding of acquittal, the High Court
has to keep in view the fact that the presumption of innocence
is still available in favour of the accused and the same stands
fortified and strengthened by the order of acquittal passed in
his favour by the trial court.
(v) If the High Court, on a fresh scrutiny and reappraisal
of the evidence and other material on record, is of the opinion
that there is another view which can be reasonably taken,
then the view which favours the accused should be adopted.
(vi) The High Court has also to keep in mind that the
trial court had the advantage of looking at the demeanour of
witnesses and observing their conduct in the Court especially
in the witness-box.
(vii) The High Court has also to keep in mind that even at
that stage, the accused was entitled to benefit of doubt. The
doubt should be such as a reasonable person would honestly
and conscientiously entertain as to the guilt of the accused.
69. In a recent decision, Mohammed Ankoos and
Others vs Public Prosecutor, High Court of Andhra
Pradesh, Hyderabad (2010) 1 SCC 94, the following principles
laid down in Ghurey Lal vs. State of U.P. (2008) 10 SCC 450
were quoted with approval:-
(i) The appellate court may review the evidence in
appeals against acquittal under Sections 378 and 386 of the
Criminal Procedure Code, 1973. Its power of reviewing
evidence is wide and the appellate court can reappreciate the
entire evidence on record. It can review the trial court‟s
conclusion with respect to both facts and law.
(ii) The accused is presumed innocent until proven
guilty. The accused possessed this presumption when he was
before the trial court. The trial court‟s acquittal bolsters the
presumption that he is innocent.
(iii) Due or proper weight and consideration must be
given to the trial court‟s decision. This is especially true when
a witness‟ credibility is at issue. It is not enough for the High
Court to take a different view of the evidence. There must also
be substantial and compelling reasons for holding that the
trial court was wrong. The Supreme Court was of the view that
following could be the instances in which Appellate Court
would have very substantial and compelling reasons to discard
the decision of the trial court:
(i) The trial court‟s conclusion with regard to the facts is
palpably wrong;
(ii) The trial court‟s decision was based on an erroneous view
of law;
(iii) The trial court‟s judgment is likely to result in „grave
miscarriage of justice‟
(iv) The entire approach of the trial court in dealing with the
evidence was patently illegal;
(v) The trial court‟s judgment was manifestly unjust and
unreasonable;
(vi) The trial court has ignored the evidence or misread the
material evidence or has ignored material documents like
dying declarations/report of the ballistic expert, etc.
70. Admittedly, no gun was found in the car in which
Suresh Singhal and his father had come to the office of the
informant on that day. If no gun was lying in the car, there
could have been no occasion for late Pritpal Singhal to ask the
respondent Roshan Lal to bring a gun from his vehicle and
Roshan Lal rushing towards the car in order to bring a gun. It
was contended by the learned counsel for the respondent that
may be, Roshan Lal was asked by late Pritpal Singhal to bring
a gun from the car in order to terrify those who were present
in the room. We, however, are unable to accept the argument.
The case of the prosecution is that Suresh Singhal as well as
his father late Pritpal Singhal were armed with revolvers which
they had used in committing murder of Krishan Lal and
Shyam Sunder and causing serious gunshot injuries to the
injured Hans Raj. As many as seven shots were fired by them
in the office of Lala Harkishan Dass on that day. Firing as
many as seven shots using two revolvers for the purpose and
causing serious gunshot injuries to as many as three persons
was more than enough to terrorize those who were present in
the office of informant on that day and nothing more needed to
be done for the purpose. No intention to commit murder can
be inferred merely from Roshan Lal accompanying Suresh
Singhal and his father Pritpal Singhal to the office of the
informant on that day, particularly when the Trial Court has
come to the conclusion that the murder was not pre-planned
and a common intention between Suresh Singhal and his
father to commit murder had developed there and then, in the
office of the informant.
The story of the respondent Roshan Lal catching hold
of PW-4 Raj Kumar has been disbelieved by the learned trial
Judge noting that by doing so Roshan Lal would have only
been helping Raj Kumar. In such a position, Suresh Singhal
and his father Pritpal Singhal would not have been able to fire
any shot towards Raj Kumar, lest the bullet hit their own
companion.
In our view the conclusion drawn by the learned trial
Judge is not only plausible but is the only logical view which
can be taken in the facts and circumstances of the case before
us. Considering the principles laid down by the Supreme
Court, we will not be justified in taking a view different from
the view taken by the Trial Court unless that view is palpably
wrong or has resulted in grave miscarriage of justice. We feel
that the view taken by the trial court is a rational and
reasonable view which could justifiably have been taken in the
facts and circumstances of the case. This appeal is, therefore,
liable to be dismissed.
Conclusion:
71. For the reasons given in the preceding paragraphs
Criminal Appeal No. 232/1997 filed by Suresh Singhal against
his conviction and the sentence awarded to him, Criminal
Appeal No. 217/1997 filed by the State seeking death penalty
for him and Criminal Appeal No. 226/1997 filed by the State
against acquittal of Roshan Lal are hereby dismissed. Suresh
Singhal, appellant in Criminal Appeal No. 232/1997 be taken
into custody to undergo the remaining part of the sentence
awarded to him.
(V.K. JAIN)
JUDGE
(BADAR DURREZ AHMED)
JUDGE
SEPTEMBER 01, 2010/Ag/BG/RS
