Punjab-Haryana High Court
State Of Punjab vs Jasbir Singh And Ors on 18 September, 2024
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -1-
In the High Court of Punjab and Haryana at Chandigarh
1. CRA-D-556-DBA-2008 (O&M)
Reserved on: 09.09.2024
Date of Decision: 18.09.2024
State of Punjab
......Appellant
Versus
Jasbir Singh and others
......Respondents
2. CRA-S-852-SB-2001 (O&M)
Jasbir Singh
......Appellant
Versus
State of Punjab
......Respondent
3. CRR-169-2002 (O&M)
Jarnail Singh
......Petitioner
Versus
Jasbir Singh and others
......Respondents
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Maninderjit Singh Bedi, Addl. A.G., Punjab.
Mr. Vinod Ghai, Sr. Advocate assisted by
Mr. Tanvir S. Grewal, Mr. Arnav Ghai, Advocates
for the appellant (in CRA-S-852-SB-2001)
for respondent No.1 in CRA-D-556-DBA-2008.
Mr. T.P.S. Tung and Mr. G.S. Kaura, Advocates
for respondent Nos. 2, 7 and 8 in CRA-D-556-DBA-2008
Mr. P.P. Chahar, Advocate (Legal Aid Counsel)
for respondent No.6 CRA-D-556-DBA-2008.
Ms. Kirandeep Kaur, Advocate for
Mr. Kamaldip Singh Sidhu, Advocate
for the petitioner (in CRR-169-2002)
Proceedings qua respondents No.3 to 5 stand abated.
****
1 of 40
::: Downloaded on - 06-10-2024 15:39:27 :::
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -2-
SURESHWAR THAKUR, J.
1. Since both the above appeals (supra) as well as the criminal
revision (supra) arise from a common verdict, made by the learned trial
Judge concerned, hence all the appeals/revision (supra) are amenable for a
common verdict being made thereons.
2. All the appeals/revision (supra) are directed against the
impugned verdict, as made on 07.06.2001, upon session case bearing No.41
of 23.11.1998, by the learned Sessions Judge, Ludhiana, wherethrough in
respect of charges drawn against the accused qua offences punishable under
Sections 148, 302, 324, 323/149 of the IPC, thus the learned trial Judge
concerned, proceeded to record a finding of conviction against appellant-
convict namely Jasbir Singh for an offence punishable under Section 304-I
of the IPC. Importantly also the learned trial Judge concerned, acquitted the
remaining accused for the charges drawn against. Moreover, through a
separate sentencing order of even date, the learned trial Judge concerned,
sentenced the appellant-convict in the hereinafter extracted manner.
"xxx
I hereby sentence convict Jasbir Singh to undergo rigorous
imprisonment for a period of ten years and to pay a fine of
Rs.2,000/- or in default to undergo further rigorous imprisonment
for three months under Section 304-I of the Indian Penal Code.
xxx"
3. Since the accused-convict became aggrieved from the above
drawn verdict of conviction, besides also, became aggrieved from the
consequent thereto sentence(s) of imprisonment, and, of fine as became
imposed, upon him, by the learned convicting Court concerned, thereupons
he choose to institute thereagainst criminal appeal bearing No.CRA-S-852-
SB-2001.
2 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -3-
4. The State of Punjab as well as the complainant has also filed
criminal appeal bearing No.CRA-D-556-DBA-2008 and criminal revision
bearing No.CRR-169-2002, thus respectively, seeking the recording of
finding of conviction qua the convicts-accused, thus for an offence
punishable under Section 302 read with Section 149 of the IPC.
Factual Background
5. The genesis of the prosecution case becomes embodied in the
appeal FIR, to which Ex.PW9/A/2 is assigned. The narrations carried in
Ex.PW/A/2 are, that the case was registered on the basis of a statement
Ex.PW9/A made by Machhinder Singh, resident of village Punia before the
police. In that statement it was mentioned by him that on the day of
occurrence i.e. on 18.8.1998 he and his brother Malkiat Singh, nephew
Jagtar Singh and Harmanjit Singh deceased and various others had gone to
village Takhar to see village fair there. After seeing the village fair
Machhinder Singh P.W. 9 and Malkiat Singh P.W. 10, Joga Singh P.W. 15,
Tarlochan Singh P.W. 13 and others were returning village Takhar to their
own village Punia on the tractor being driven by Jasbir Singh son of
Mohinder Singh of Village Punia. On that day i.e. on 18.8.1998 at about
6.00 P.M. when Machhinder Singh and others mentioned above reached near
the electric tubewell motor of Ajmer Singh of village Punia about one
kilometer behind the village Abadi of Punia all the accused namely Jasbir
Singh alias Jassi, Swaran Singh, Nirmal Singh and Rajinder Singh while
armed with Kirchs and Karamjit Singh, Charan Singh, Ranjit Singh and Rai
Singh armed with sticks were found causing injuries to Harmanjit Singh
since deceased and Jagtar Singh P.W. 14. At that time accused Jasbir Singh
gave a kirch blow hitting Harmanjit Singh deceased on the left side of the
3 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -4-
chest. While the accused also gave some blows to Jagtar Singh injured with
their weapons, Machhinder Singh P.W. and others then got down from the
tractor and rushed forward to rescue Harmanjit Singh deceased and Jagtar
Singh P.W.14 from the accused. At that time the accused also caused some
blows to Malkiat Singh, Tarlochan Singh and Joga Singh injured with their
weapons. After causing injuries to Harmanjit Singh deceased and Jagtar
Singh, Malkiat Singh and Tarlochan Singh Joga Singh injured the accused
decamped from the spot with their respective weapons. After the occurrence
Harmanjit Singh deceased and other injured were sent to Civil Hospital,
Samrala in a vehicle arranged at the spot. On reaching the hospital Harmanjit
Singh deceased was declared dead in the hospital. On the basis of Ex.P.W.
9/A made statement by Machhinder Singh P.W. 9 before the police formal
FIR No.69 of 1998, copy Ex.P.W.9/A2 under Sections 148, 302, 324, 149 of
the Indian Penal Code was registered against the accused at police station
Samrala. Upon registration of the case ASI Avtar Singh P.W. 17 took up the
investigation of the case. He then visited the spot and prepared site plan
Ex.P.W.17/A of the place of occurrence with correct marginal notes. He also
lifted some blood stained earth from the spot, which was sealed into parcel
and taken into possession vide seizure memo Ex.PD attested by the
prosecution witnesses. Thereafter, he rushed to Civil Hospital, Samrala and
prepared inquest report Ex.PC on the dead body of Harmanjit Singh
deceased. At that time the dead body was identified by Gurmeet Singh and
Jarnail Singh P.Ws. and after completing the necessary formalities of
investigation the accused were challaned and sent up to the learned trial
Court for trial.
4 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -5-
Committal Proceedings
6. Since the offences punishable under Section 302 of the IPC,
were exclusively triable by the Court of Session, thus, the learned committal
Court concerned, through a committal order made on 26.10.1998, hence
proceeded to commit the accused to face trial before the Court of Session.
Trial Proceedings
7. The learned trial Judge concerned, after receiving the case for
trial, made an objective analysis of the incriminatory material, adduced
before him. Resultantly, he proceeded to draw charges against accused, for
the commission of offences punishable under Sections 148, 302, 324,
323/149 of the IPC. The afore drawn charges were put to the accused, to
which they pleaded not guilty, and, claimed trial.
8. In proof of its case, the prosecution examined 17 witnesses,
and, thereafter the learned Public Prosecutor concerned, closed the
prosecution evidence. After the closure of prosecution evidence, the learned
trial Judge concerned, drew proceedings, under Section 313 of the Cr.P.C.,
but thereins, the accused pleaded innocence, and, claimed false implication.
However, they choose to lead three witnesses in their defence evidence.
Submissions of the learned counsel for the appellants-accused
9. The learned counsel for the aggrieved convicts-appellants have
argued before this Court, that both the impugned verdict of conviction, and,
the consequent thereto order of sentence, thus require an interference. He
supports the above submission on the ground, that it is based on a gross
misappreciation, and, non-appreciation of evidence germane to the charge.
10. The learned counsel for the appellant has vigorously argued
before this Court that the complainant party were the aggressors and the
5 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -6-
accused have acted in defence.
11. The said argument is premised on the ground, that the learned
trial Judge concerned, has not borne in mind the genesis of the prosecution,
as, becomes embodied in the appeal FIR to which Ex.PW/9/A/2 becomes
assigned. He further submits that injured Joga Singh while making his
statement under Section 161 Cr.P.C., stated that after the people gathered at
the place of occurrence, that then the accused fled away from the spot with
their respective weapons. However, when the said witness stepped into the
witness box as PW-15, he stated that rather after causing injuries, the
accused ran away from the spot with their respective weapons. Resultantly,
he submits that when the said witness, thus in his previously made statement
only made echoings about the gathering of the people at the place of
occurrence, and did not make echoings about the injuries being caused by
them, whereas, upon his stepping into the witness box, his making echoings
about the accused after causing injuries rather theirs fleeing from the crime
site. In consequence, he submits that the above made echoing by PW-15
Joga Singh, thus in digression to his previously made statement in writing, is
rather a dire improvement or embellishment over the said previously made
statement in writing. Consequently, he argues that therebys the genesis of
the prosecution case becomes shaken as such the appellant deserves
acquittal.
MLR of the accused
12. PW-3 medically examined the injured person Jasbir Singh and
prepared the medico legal report in respect of the injuries entailed on the
person of the injured-accused. The relevant injuries as noticed by PW-3 on
the body of the injured is extracted hereinafter. The said MLR become
assigned Ex.PL/1. The contents of the said MLR is ad verbatim extracted
6 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -7-
hereinafter.
"1. An abrasion of 2 cm diameter dark brown scalp present over
it. It was present on lateral upper part of left leg.
2. A bluish black discolouration (bruise) which was present on
lower part of left eye, imperceptible margin about 4 x 4 cm diameter.
No swelling.
3. An old bruise of brownish black colour of 4 x 3 cms on
anterior side of left shoulder. Movements of shoulder was normal.
No swelling.
4. An old linear bruise of black colour horizontally placed on middle
of back of chest. No swelling. Respiratory movements were normal.
Chest, CVS, P/A normal."
13. PW-3 also medically examined the injured person Nirmal Singh
and prepared the medico legal report in respect of the injuries entailed on the
person of the injured-accused. The relevant injuries as noticed by PW-3 on
the body of the injured is extracted hereinafter. The said MLR become
assigned Ex.PM/1. The contents of the said MLR is ad verbatim extracted
hereinafter.
"1. An abrasion of 4x0.1 cm on lateral side of chest in middle,
dark brown scalp present over it.
2. Slight swelling of left forearm near left wrist joint. Movement
were painful and restricted. Advised X-ray left forearm, including
wrist A.P and lateral view.
3. An infected wound 4cms x 1 cm x 0.2 cms on left chin in lower
1/3rd, pass present in the wound, slight healing has started from the
edges. It type can not be commented."
14. PW-4 medically examined the injured person Swarn Singh and
prepared the medico legal report in respect of the injuries entailed on the
person of the injured-accused. The relevant injuries as noticed by PW-4 on
the body of the injured is extracted hereinafter. The said MLR become
assigned Ex.PN/1. The contents of the said MLR is ad verbatim extracted
hereinafter.
7 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -8-
"1. A stitched wound 4.5cm in in length obliquely placed on
parietal region left side of head 12 cm from upper margine of left ear
5 cm from midline. Pus with some dirty blood was present on the
wound.
2. Two parallel bruise present on back left side (i) 10x2 cm
bruise brown in colour obliquely placed on back of chest left side
extending from midline from cervical spine C7 obliquely and
downward towards spine of scapula. (ii) 3x1.5 cms bruise brown in
colour obliquely placed and parallel to above bruise present on back
of left near the outer and of the above bruise 2 cm below the (i)
bruise and 6 cm from midline.
3. Two healing abraided wound were present on back (I) 9x0.5
cms healing abraided wound present obliquely placed present or
back or chest right upper, 2 cm from inner margine of upper half of
right scapula, scalp brown colour present on lower half and upper
half part no scab and white in colour. (ii) 1x1 cm healing abraided
wound present on the back exactly in the midline at back level of
anterior superior spine brown in colour present on wound at L3
vertebra."
15. PW-5 medically examined the injured person Rajinder Singh
and prepared the medico legal report in respect of the injuries entailed on the
person of the injured-accused. The relevant injuries as noticed by PW-5 on
the body of the injured is extracted hereinafter. The said MLR become
assigned Ex.PO/1. The contents of the said MLR is ad verbatim extracted
hereinafter.
"1. An old healed injury was present on right forearm on medial
side 10 cms below the medial epicondyle of numerus bone."
16. PW-5 also medically examined the injured person Ranjit Singh
and prepared the medico legal report in respect of the injuries entailed on the
person of the injured-accused. The relevant injuries as noticed by PW-5 on
the body of the injured is extracted hereinafter. The said MLR become
assigned Ex.PP/1. The contents of the said MLR is ad verbatim extracted
hereinafter.
8 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -9-
"1. An old recovered abrasion 4 cms x .5 cm was present on left
arm 7 cms below the acromian.
2. Sign of prickly heat of skin in an area of 4.5 cms diameter on
the back of chest on right side 2 cms medial to medial border of right
scapula bone."
17. Learned counsel for the appellant submits that since the MLRs
of the accused become proven respectively by PW-3, P-4 and PW-5,
therebys he argues that the injuries detailed therein became caused on the
respective bodies of the injured-accused, thus in pursuance to theirs
propagating their right of private defence and/or therebys there being a
sudden scuffle at the crime site, as a sequel of a sudden provocation
becoming purveyed to the accused by the complainant, therebys he submits
that either the accused are entitled to the purveying to them of the benefit(s)
of the exceptions to criminal liability, as relates, to the fatal crime assault
becoming spurred from the accused exercising their right of private defence.
In the alternative, he submits that since in view of a sudden scuffle erupting
at the crime site, on creation of a sudden provocation to the accused by the
complainants-victims. In sequel, the offence committed by the accused is
liable to be converted from culpable homicide amounting to murder to an
offence of culpable homicide not amounting to murder, and, therebys the
accused are required to be convicted under Section 304 Part-I of the IPC.
Reasons for rejecting the same
18. The submission as addressed before this Court by the learned
counsel for the respondents-accused, that the respondents-accused had well
exercised their right of private defence, and that the respondents-accused
were not the aggressors, but does not hold any vigor.
19. Be that as it may, even if assuming that most of the co-accused,
did suffer injuries, besides also assuming that the said suffered injuries by
9 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -10-
the said accused, thus were in the instant crime event, but yet after the
accused becoming declared fit to make a statement, thus they were required
to be launching proceedings against the accused, but with propagations
therein qua the injuries entailed on their respective persons, hence
exemplified that the assault as become perpetrated by them upon the
complainant party, rather became perpetrated in the valid exercisings by
them of the right of private defence. However, no cross version in respect of
the crime event became reported by the accused persons. The effect of
evident omission(s) (supra), on the part of the above accused, to after their
becoming declared fit to make a statement, thus launch penal proceedings
against the complainant party, is but only that, the accused (supra) even if
they became entailed with injuries on their respective persons', which are
but only simple injuries, thus in the very same occurrence, whereins, the
deceased was murdered, yet the said entailment of simple injuries on the
person(s) of the accused, rather cannot be construed to become so entailed,
thus in the valid exercising by them vis-a-vis their right of private defence.
Contrarily, the effect of the propagation (supra) by the accused, is that,
thereby they concede to their participation in the crime event, wherebys they
lend corroboration to the deposition(s) of the injured-victims to the crime
event.
20. Now proceeding to further dwell, upon, the tenacity of the
argument raised before this Court, that the respondents-accused, did well
exercise their right of private defence of property, as well as their respective
body(ies), it is but necessary to delve, into the records, to gather therefroms,
whether the crime site was evidently possessed by the respondents-accused,
besides it is also required to be discerned from the evidence available on
10 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -11-
record, that whether the aggression became initiated, by the respondents-
accused, and/or, by the complainant party, besides is also required to be
gauged from the records whether the numerical strength of the accused
party, rather was lesser or inferior to the numerical strength of the
complainant party. Moreover, it is also required to be fathomed from the
evidence available on record whether the accused were equally armed as was
the complainant party. Significantly also it is required to be determined
whether the accused exceeded or did not exceed the exercisings of their
rights of private defence of body, and/or, of persons.
21. In determining the above, it is but necessary to allude to the
grave factum, that the numerical strength of the complainant party was 5,
whereas, the numerical strength of the accused was 8. Therefore, given the
superior numerical strength of the accused party, than the numerical strength
of the complainant party, thus therebys besides, when the complainant party
were also not as well armed as was the accused party, who were respectively
wielding weapons of offences, especially when some of the recovered
weapons are also lethal weapons. Conspicuously reiteratedly when also for
omission (supra), neither any criminal action became drawn against the
complainant party nor any weapons of offence become recovered at their
respective instances, therebys an inference becomes marshalled, that the
complainant party did not wield any weapon of offence. Resultantly, thereby
a further conclusion becomes garnered, especially from inter se the superior
numerical strength of the accused party, vis-a-vis, the numerical strength of
the complainant party, besides from prima facie with the complainant party
not being either so well armed, and/or prima facie being not co-equally
armed, as was the accused party, qua therebys the accused party did exceed
11 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -12-
their right of private defence of body, and, of property. In sequel, there was
disproportionality inter se the threat, if any, as became purportedly
generated by the complainant party, thus with the responses thereto as meted
by the accused party.
22. Conclusion (supra) that the accused did exceed their right of
private body and person, but becomes firmly marshalled from the factum
that the effect of the assault becoming perpetrated by the accused vis-a-vis
the deceased, but begot the demise of the deceased, wherebys naturally the
right of private defence of body and of property, thus become exceeded.
Preponderantly also when for omission (supra), it cannot be said, that the
complainant party were the initiators of the aggression, therebys too, the
accused cannot well propagate that the legal assault as made on the person of
the deceased, was made in theirs ably exercising the right of private defence
either of person or property.
Plea of alibi taken by accused Rajinder Singh and Karamjit Singh and
the reasons for its rejection
23. Learned counsel for the appellants argued that the accused
Rajinder Singh was not available at the crime site, as the said accused was,
at the relevant time of occurrence somewhere else. Other accused Karamjit
Singh also pleaded that at the relevant time of occurrence, he was present at
the house of Karnail Singh. To prove his defence, he examined one Karnail
Singh, who stepped into the witness box as DW-1. In his deposition he has
deposed that the accused Karamjit Singh and has brother Surinder Singh had
made electrical fittings in his house from 15.08.1998 to 20.08.1998.
Rejection of plea of alibi
24. However, initially the said pleas of alibi respectively taken by
accused Rajinder Singh and by accused Karamjit Singh, are rejected for the
12 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -13-
reason, that the accused Rajinder Singh could not produce any cogent
evidence to prove his plea of alibi. On the other hand, accused Karamjit
Singh tried to prove the plea of alibi by bringing into the witness box DW-1
one, Karnail Singh. But the said witness could not help him, for the reason
that he has not mentioned in his deposition that throughout from 15.08.1998
to 20.08.1998, accused Karamjit Singh was available at the house of DW-1.
In the present case, the incident took place at 6.30 p.m., as such, it cannot be
ruled out that the accused Karamjit Singh could not be available at the crime
site at the time of alleged occurrence, hence the said plea also becomes
rejected.
Submissions of the learned State counsel and complainant
25. On the other hand, the learned State counsel as well as the
learned counsel for the complainant have argued before this Court, that the
verdict of conviction, and, consequent thereto sentence(s) (supra), as become
imposed upon the convict-appellant, are well merited, and, do not require
any interference, being made by this Court, thus in the exercise of its
appellate jurisdiction. Therefore, they have argued that the appeal, as
preferred by the convict-appellant, be dismissed. Furthermore, they have
also argued that all the accused-respondents be convicted for the charged
offences punishable under Sections 148, 302, 324, 323/149 of the IPC.
Analyses of the depositions of the eye witnesses' to the occurrence who
respectively stepped into the witness box as PW-9, P-10, & PW-13 to
PW-15
26. All the witnesses (supra), in their respectively made
depositions, as comprised in their respective examinations-in-chief, ascribed
to all the accused, thus the incriminatory role, inasmuch as, with theirs
wielding the respective incriminatory weapons of offence, theirs hence
13 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -14-
inflicting injuries on the person of the injured and the deceased.
27. It is evident on a reading of depositions of the above witnesses,
that all of them, were aware of the identity(ies) of the accused. Resultantly,
when there is also no efficacious cross-examination made upon all the eye
witnesses (supra), thus suggestive, that the present accused were unknown to
all of them nor when any affirmative answer thereto became meted, thus by
the eye witnesses (supra). Therefore, the first time identification, by them
thus, in Court vis-a-vis the identities of the accused concerned, rather even
without prior thereto any valid test identification parade being held, thus
does not make the apposite identifications, rendered only in Court rather to
be lacking in any evidentiary vigor.
28. Be that as it may, an incisive and wholesome reading of the
depositions of the said eye witnesses to the occurrence unfolds that; a) All of
them did not either grossly improve nor grossly embellished upon their
previously recorded statements in writing, b) All of them have in respect of
the crime event, thus made a version in complete alignment with the version
embodied in the FIR, c) All of them have narrated an ocular account vis-a-
vis the crime event which is but free from any taint of any inter se or intra se
contradiction. Resultantly, therebys the eye witness account as became
rendered by them vis-a-vis the crime event, rather is to be assigned the
completest evidentiary vigor, wherebys the prosecution has been able to
cogently establish the charge drawn against the accused. Conspicuously also
therebys the above purportedly made improvement and embelishment by the
witness (supra), over his previously rendered statement in writing, thus is
merely minimal thereby looses its consequential exculpatory effect, if any.
Signatured disclosure statements of the accused and pursuant thereto
recoveries
14 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -15-
29. During the course of investigations, being made into the appeal
FIR, convicts-appellants, made their respective signatured disclosure
statements, to which Exs.PW16/A, PW16/D, PW16/E, PW16/F, PW16/G,
PW16/H, PW16/J, and PW16/K/4, become respectively assigned.
30. The disclosure statements (supra), carry thereons the signatures,
of the convicts concerned. In their signatured disclosure statements (supra),
convicts, confessed their guilt in inflicting injuries on persons' of the injured
and deceased, hence with the recovered weapons. The further speaking
therein is qua theirs keeping, and, concealing the incriminatory weapons of
offence. Moreover, the said signatured disclosure statements do also make
speakings about theirs alone being aware about the location of theirs hiding
and keeping the same, and, also revealed their willingness to cause the
recovery of the incriminatory weapons, to the investigating officer
concerned, from the place of theirs hiding, and, keeping the same.
31. Significantly, since the appellants have not been able to either
ably deny their signatures as occur on the exhibits (supra) nor when they
have been able to prove the apposite denial. Moreover, since they have also
not been able to bring forth tangible evidence but suggestive that the
recoveries are either contrived or invented. Therefore, all the exhibits are
prima facie concluded to be holding the utmost evidentiary tenacity.
32. Significantly also, since post the making of the said signatured
disclosure statements, becoming made, thus by the convicts to the
investigating officer concerned, each of them through their respective
recovery memos bearing No.Ex.PW16/B, PW16/D/1, PW16/E/1, PW16/F/1,
PW16/G/1, PW16/H/1, PW16/J/1, and PW-16/K/1, thus caused the
recoveries of the weapons of offence to the investigating officer concerned.
15 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -16-
Consequently, when the said made recoveries are also not suggested by any
cogent evidence to be planted recoveries. Resultantly, the effect thereof, is
that the valid recoveries were made vis-a-vis the incriminatory weapons of
offence by the convicts, to the investigating officer concerned. In sequel, the
makings of the valid signatured disclosure statements, by the convicts
besides the pursuant thereto effectuation(s) of valid recoveries of the
incriminatory weapons of offence, thus by each of the convicts to the
investigating officer concerned, but naturally prima facie corroborates and
supports the case of the prosecution.
33. However, yet for assessing the vigor of the said made disclosure
statements and consequent thereto made recoveries, it apt to refer to the
principles governing the assigning of creditworthiness to the said made
disclosure statements and to the consequent thereto made recoveries. The
principles governing the facet (supra), become embodied in paragraphs
Nos.23 to 27 of a judgment rendered by the Hon'ble Apex Court in
Criminal Appeal Nos.1030 of 2023, titled as "Manoj Kumar Soni V. State
of Madhya Pradesh", decided on 11.08.2023, relevant paragraphs whereof
become extracted hereinafter.
23. The law on the evidentiary value of disclosure
statements under Section 27, Evidence Act made by the accused
himself seems to be well established. The decision of the Privy
Council in Pulukuri Kotayya and others vs. King-Emperor
holds the field even today wherein it was held that the provided
information must be directly relevant to the discovered fact,
including details about the physical object, its place of origin,
and the accused person's awareness of these aspects. The Privy
Council observed:
The difficulty, however great, of proving that a fact
discovered on information supplied by the accused is a
16 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -17-
relevant fact can afford no justification for reading into s. 27
something which is not there, and admitting in evidence a
confession barred by s. 26. Except in cases in which the
possession, or concealment, of an object constitutes the gist of
the offence charged, it can seldom happen that information
relating to the discovery of a fact forms the foundation of the
prosecution case. It is only one link in the chain of proof, and
the other links must be forged in manner allowed by law.
24. The law on the evidentiary value of disclosure statements of
co-accused too is settled; the courts have hesitated to place
reliance solely on disclosure statements of co-accused and used
them merely to support the conviction or, as Sir Lawrence
Jenkins observed in Emperor vs. Lalit Mohan Chuckerburty,
to "lend assurance to other evidence against a co-accused". In
Haricharan Kurmi vs. State of Bihar, this Court, speaking
through the Constitution Bench, elaborated upon the approach
to be adopted by courts when dealing with disclosure
statements:
13. ...In dealing with a criminal case where the
prosecution relies upon the confession of one accused person
against another accused person, the proper approach to
adopt is to consider the other evidence against such an
accused person, and if the said evidence appears to be
satisfactory and the court is inclined to hold that the said
evidence may sustain the charge framed against the said
accused person, the court turns to the confession with a view
to assure itself that the conclusion which it is inclined to draw
from the other evidence is right.
25. In yet another case of discrediting a flawed conviction
under Section 411, IPC, this Court, in Shiv Kumar vs. State of
Madhya Pradesh overturned the conviction under Section 411,
declined to place undue reliance solely on the disclosure
statements of the co-accused, and held:
24. ..., the disclosure statement of one accused cannot
be accepted as a proof of the appellant having knowledge of
utensils being stolen goods. The prosecution has also failed to
establish any basis for the appellant to believe that the
utensils seized from him were stolen articles. The factum of
selling utensils at a lower price cannot, by itself, lead to the
conclusion that the appellant was aware of the theft of those
articles. The essential ingredient of mens rea is clearly not
established for the charge under Section 411 IPC. The
prosecution's evidence on this aspect, as they would speak of
17 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -18-
the character Gratiano in Merchant of Venice, can be
appropriately described as, "you speak an infinite deal of
nothing." [William Shakespeare, Merchant of Venice, Act 1
Scene 1.]
26. Coming to the case at hand, there is not a single iota
of evidence except the disclosure statements of Manoj and the
co-accused, which supposedly led the I.O. to the recovery of the
stolen articles from Manoj and Rs.3,000.00 from Kallu. At this
stage, we must hold that admissibility and credibility are two
distinct aspects and the latter is really a matter of evaluation of
other available evidence. The statements of police witnesses
would have been acceptable, had they supported the
prosecution case, and if any other credible evidence were
brought on record. While the recoveries made by the I.O. under
Section 27, Evidence Act upon the disclosure statements by
Manoj, Kallu and the other co-accused could be held to have
led to discovery of facts and may be admissible, the same
cannot be held to be credible in view of the other evidence
available on record.
27. While property seizure memos could have been a
reliable piece of evidence in support of Manoj's conviction,
what has transpired is that the seizure witnesses turned hostile
right from the word 'go'. The common version of all the seizure
witnesses, i.e., PWs 5, 6, 11 and 16, was that they were made to
sign the seizure memos on the insistence of the 'daroga' and
that too, two of them had signed at the police station. There is,
thus, no scope to rely on a part of the depositions of the said
PWs 5, 6, 11 and 16. Viewed thus, the seizure loses credibility.
34. Furthermore, in a judgment rendered by the Hon'ble Apex
Court in Criminal Appeal No.2438 of 2010, titled as "Bijender @ Mandar
V. State of Haryana", decided on 08.11.2021, the relevant principles
governing the assigning of creditworthiness become set forth in paragraph
16 thereof, paragraph whereof becomes extracted hereinafter.
16. We have implored ourselves with abounding
18 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -19-
pronouncements of this Court on this point. It may be true that
at times the Court can convict an accused exclusively on the
basis of his disclosure statement and the resultant recovery of
inculpatory material. However, in order to sustain the guilt of
such accused, the recovery should be unimpeachable and not be
shrouded with elements of doubt. We may hasten to add that
circumstances such as (i) the period of interval between the
malfeasance and the disclosure; (ii) commonality of the
recovered object and its availability in the market; (iii) nature
of the object and its relevance to the crime; (iv) ease of
transferability of the object; (v) the testimony and
trustworthiness of the attesting witness before the Court and/or
other like factors, are weighty consideraions that aid in gauging
the intrinsic evidentiary value and credibility of the recovery.
(See: Tulsiram Kanu vs. The State; Pancho vs. State of
Haryana; State of Rajasthan vs. Talevar & Anr and Bharama
Parasram Kudhachkar vs. State of Karnataka).
35. Furthermore, in another judgment rendered by the Hon'ble
Apex Court in Special Leave Petition (Criminal) No.863 of 2019, titled as
"Perumal Raja @ Perumal V. State, Rep. By Inspector of Police", decided
on 03.01.2024, the relevant principles governing the assigning of
creditworthiness become set forth in paragraphs 22 to 25 thereof, paragraphs
whereof become extracted hereinafter.
22. However, we must clarify that Section 27 of the
Evidence Act, as held in these judgments, does not lay down the
principle that discovery of a fact is to be equated to the object
produced or found. The discovery of the fact resulting in
recovery of a physical object exhibits knowledge or mental
awareness of the person accused of the offence as to the
existence of the physical object at the particular place.
Accordingly, discovery of a fact includes the object found, the
place from which it was produced and the knowledge of the
accused as to its existence. To this extent, therefore, factum of
19 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -20-
discovery combines both the physical object as well as the
mental consciousness of the informant accused in relation
thereto. In Mohmed Inayatullah v. State of Maharashtra12,
elucidating on Section 27 of the Evidence Act, it has been held
that the first condition imposed and necessary for bringing the
section into operation is the discovery of a fact which should be
a relevant fact in consequence of information received from a
person accused of an offence. The second is that the discovery
of such a fact must be deposed to. A fact already known to the
police will fall foul and not meet this condition. The third is that
at the time of receipt of the information, the accused must be in
police custody. Lastly, it is only so much of information which
relates distinctly to the fact thereby discovered resulting in
recovery of a physical object which is admissible. Rest of the
information is to be excluded. The word 'distinctly' is used to
limit and define the scope of the information and means
'directly', 'indubitably', 'strictly' or 'unmistakably'. Only that
part of the information which is clear, immediate and a
proximate cause of discovery is admissible.
23. The facts proved by the prosecution, particularly the
admissible portion of the statement of the accused, would give
rise to two alternative hypotheses, namely, (i) that the accused
had himself deposited the physical items which were recovered;
or (ii) only the accused knew that the physical items were lying
at that place. The second hypothesis is wholly compatible with
the innocence of the accused, whereas the first would be a
factor to show involvement of the accused in the offence. The
court has to analyse which of the hypotheses should be accepted
in a particular case.
24. Section 27 of the Evidence Act is frequently used by
the police, and the courts must be vigilant about its application
to ensure credibility of evidence, as the provision is vulnerable
to abuse. However, this does not mean that in every case
invocation of Section 27 of the Evidence Act must be seen with
suspicion and is to be discarded as perfunctory and unworthy of
20 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -21-
credence.
25. The pre-requisite of police custody, within the meaning of
Section 27 of the Evidence Act, ought to be read pragmatically
and not formalistically or euphemistically. In the present case,
the disclosure statement (Exhibit P-37) was made by the
appellant - Perumal Raja @ Perumal on 25.04.2008, when he
was detained in another case, namely, FIR No. 204/2008,
registered at PS Grand Bazar, Puducherry, relating to the
murder of Rajaram. He was subsequently arrested in this case,
that is FIR. No.80/2008, which was registered at PS
Odiansalai, Puducherry. The expression "custody" under
Section 27 of the Evidence Act does not mean formal custody. It
includes any kind of restriction, restraint or even surveillance
by the police. Even if the accused was not formally arrested at
the time of giving information, the accused ought to be deemed,
for all practical purposes, in the custody of the police.
36. Now the principles set forth thereins are that the defence, is
required to be proving;
i) That the disclosure statement and the consequent thereto
recovery being forged or fabricated through the defence proving
that the discovery of fact, as made in pursuance to a signatured
disclosure statement made by the accused to the investigating
officer, during the term of his custodial interrogation, rather not
leading to the discovery of the incriminatory fact;
ii) That the fact discovered was planted;
iii) It was easily available in the market;
iv) It not being made from a secluded place thus exclusively
within the knowledge of the accused.
v) The recovery thereof made through the recovery memo in
pursuance to the making of a disclosure statement, rather not
21 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -22-
being enclosed in a sealed cloth parcel nor the incriminatory
item enclosed therein becoming sent, if required, for analyses to
the FSL concerned, nor the same becoming shown to the doctor
concerned, who steps into the witness box for proving that with
the user of the relevant recovery, thus resulted in the causings of
the fatal ante mortem injuries or in the causing of the relevant
life endangering injuries, as the case may be, upon the
concerned.
vi) That the defence is also required to be impeaching the
credit of the marginal witnesses, both to the disclosure
statement and to the recovery memo by ensuring that the said
marginal witnesses, do make speakings, that the recoveries were
not made in their presence and by making further speakings that
they are compelled, tutored or coerced by the investigating
officer concerned, to sign the apposite memos. Conspicuously,
despite the fact that the said recovery memos were not made in
pursuance to the accused leading the investigating officer to the
site of recovery. Contrarily the recovery memo(s) becoming
prepared in the police station concerned.
vii) The defence adducing evidence to the extent that with
there being an immense gap inter se the making of the
signatured disclosure statement and the consequent thereto
recovery being made, that therebys the recovered items or the
discovered fact, rather becoming planted onto the relevant site,
through a stratagem employed by the investigating officer.
37. Therefore, unless the said defence(s) are well raised and are
22 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -23-
also ably proven, thereupon the making of a disclosure statement by the
accused and the consequent thereto recovery, but are to be assigned
credence. Conspicuously, when the said incriminatory link in the chain of
incriminatory evidence rather is also the pivotal corroborative link, thus even
in a case based upon eye witness account.
38. Be that as it may, if upon a prosecution case rested upon eye
witness account, the eye witness concerned, resiles therefrom his previously
made statement. Moreover, also upon his becoming cross-examined by the
learned Public Prosecutor concerned, thus the judicial conscience of the
Court become completely satisfied that the investigating officer concerned,
did record, thus a fabricated apposite previously made statement in writing,
therebys the Courts would be led to declare that the said made apposite
resilings are well made resilings by the eye witness concerned, thus from his
previously made statement in writing.
39. Moreover, in case the Court, in the above manner, becomes
satisfied about the well made resilings by the eye witness concerned, to the
crime event, thereupon the Court may consequently draw a conclusion, that
the recoveries made in pursuance to the disclosure statement made by the
accused, even if they do become ably proven, yet therebys may be the said
disclosure statement, and, the consequent thereto made recoveries also
loosing their evidentiary tenacity. The said rule is not a straitjacket principle,
but it has to be carefully applied depending upon the facts, circumstances
and evidence in each case. Tritely put in the said event, upon comparative
weighings being made of the well made resilings, thus by the eye witness
concerned, from his previously made statement in writing, and, of the well
proven recoveries made in pursuance to the efficaciously proven disclosure
23 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -24-
statement rendered by the accused, the Court is required to be drawing a
conclusion, as to whether evidentiary tenacity has to be yet assigned to the
disclosure statement and the pursuant thereto recovery memo, especially
when they become ably proven and also do not fall foul from the above
stated principles, and/or to the well made resiling by the eye witness
concerned, from his previously recorded statement in writing. Emphatically,
the said exercise requires an insightful apposite comparative analyses being
made.
40. To a limited extent also if there is clear cogent medical account,
which alike, a frailly rendered eye witness account to the extent (supra), vis-
a-vis the prosecution case based upon eye witness account rather unfolds qua
the ante mortem injuries or other injuries as became entailed on the apposite
regions of the body(ies) concerned, thus not being a sequel of users
thereovers of the recovered weapon of offence, therebys too, the apposite
signatured disclosure statement and the consequent thereto recovery, when
may be is of corroborative evidentiary vigor, but when other adduced
prosecution evidence, but also likewise fails to connect the recoveries with
the medical account, therebys the said signatured disclosure statement and
the consequent thereto recovery, thus may also loose their evidentiary vigor.
Even the said rule has to be carefully applied depending upon the facts,
circumstances, and, the adduced evidence in every case.
41. However, in a case based upon circumstantial evidence when
the appositely made signatured disclosure statement by the accused and the
consequent thereto prepared recovery memos, do not fall foul, of the above
stated principles, therebys they acquire grave evidentiary vigor, especially
when in pursuance thereto able recoveries are made.
24 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -25-
42. The makings of signatured disclosure statement and the
consequent thereto recoveries, upon able proof becoming rendered qua both,
thus form firm incriminatory links in a case rested upon circumstantial
evidence. In the above genre of cases, the prosecution apart from proving the
above genre of charges, thus also become encumbered with the duty to
discharge the apposite onus, through also cogently proving other
incriminatory links, if they are so adduced in evidence, rather for sustaining
the charge drawn against the accused.
43. Consequently, since the statutory provisions enclosed in Section
25 of the Indian Evidence Act, provisions whereof becomes extracted
hereinafter, do not assign statutory admissibility to a simpliciter/bald
confession made by an accused, thus before the police officer, rather during
the term of his suffering custodial interrogation, but when the exception
thereto, becomes engrafted in Section 27 of the Indian Evidence Act,
provisions whereof becomes extracted hereinafter. Therefore, therebys when
there is a statutory recognition of admissibility to a confession, as, made by
an accused before a police officer, but only when the confession, as made by
the accused, before the police officer concerned, but becomes made during
the term of his spending police custody, whereafters the said incriminatory
confession, rather also evidently leads the accused, to lead the investigating
officer to the place of discovery, place whereof, is exclusively within the
domain of his exclusive knowledge.
"25. Confession to police-officer not to be proved.--No
confession made to a police-officer, shall be proved as against a person
accused of any offence.
Xxx
27. How much of information received from accused may be
proved.--Provided that, when any fact is deposed to as discovered in
25 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -26-
consequence of information received from a person accused of any
offence, in the custody of a police-officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved."
44. Significantly, it would not be insagacious to straightaway oust
the said made signatured disclosure statement or the consequent thereto
recovery, unless both fall foul of the above principles, besides unless the
said principles become proven by the defence. Contrarily, in case the
disclosure statement and the consequent thereto recovery enclosed in the
respective memos, do not fall foul of the above principles rather when they
become cogently established to link the accused with the relevant charge.
Resultantly, if the said comprises but a pivotal incriminatory link for proving
the charge drawn against the accused, therebys the snatching of the above
incriminatory link from the prosecution, through straightaway rejecting the
same, but would result in perpetration of injustice to the victim or to the
family members of the deceased, as the case may be.
45. Now coming the facts at hands, since the disclosure statements
and the consequent thereto recoveries do become efficaciously proven by the
prosecution. Moreover, when none of the marginal witnesses, to the said
memos become adequately impeached rather for belying the validity of
drawings of the memos nor also when it has been proven that the said
memos are fabricated or engineered, besides when it is also not proven that
the recoveries (supra) did not lead to the discovery of the apposite fact from
the relevant place of hiding, thus only within the exclusive knowledge of the
accused.
46. Conspicuously also, when the said disclosure statement is but
not a bald or simpliciter disclosure statement, but evidently did lead to the
making of efficacious recovery(ies), at the instance of the accused, to the
26 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -27-
police officer concerned.
47. Consequently, when therebys the above evident facts rather do
not fall foul of the above stated/underlined principles in the verdicts (supra).
Consequently, both the disclosure statement, and, the consequent thereto
recoveries, when do become efficaciously proven, therebys theretos
immense evidentiary tenacity is to be assigned. Preeminently also when thus
they do corroborate the rendition of credible eye witness account vis-a-vis
the crime event. Moreover, when the memos (supra) also lend corroboration
also to the medical account, therebys through all the links (supra), the charge
drawn against the accused becomes proven to the hilt.
Testification of prosecution witnesses
48. PW-9 in his examination-in-chief echoes that after causing
injuries to Harmanjit Singh, Jagtar Singh, Malkiat Singh, Tarlochan Singh
and Joga Singh, thus the accused ran away from the spot with their
respective weapons. He further echoes therein, that at that time, they picked
up some sticks from the branches of the trees and wielded the same in self
defence, thereafter the accused managed to run away from the spot. A
perusal of the said examination-in-chief of the witness (supra) underscores
the factum of the crime event taking place, besides also supports that rather
than the accused propagating the right of private defence, thus the
complainant party underscoring that they were led to baulk the assault
through their adopting the above modes. Moreover, since the defence has not
further suggested to the defence (supra), in the cross-examination made upon
him, that apart from the above manners of the complainant attempting to
balk the assault perpetrated upon their person, qua theirs also through their
wielding deadly weapons resulted in grievance wounds became entailed
27 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -28-
upon the person of the accused. Therefore, the effect of the omission (supra),
cast a grave dent being caused, the defence that the incriminatory assault
was a sequel of the accused, thus exercising their right of private defence of
body. The examination-in-chief of the witness (supra) becomes extracted
hereinafter.
"I belong to village Poonian. I am working as driver with
Hans Raj Kalra of village Machhiwara. On 18-8-98 a village fare
was to be held in village Takhran. On that day I along with my
brother Malkiat Singh, nephew Jagtar Singh, PW Harmanjit Singh
and various others of my village went to village Takhran to see that
mela. After seeing the fare, I along with my brother Malkiat Singh
PW Joga Singh, and Tarlochan Singh were returning to our village
on the tractor of Jasbir Singh of village Poonian. It was about 5-45/6
p.m., at that time. On way back when we had reached near the
electric motor of Ajmer Singh of our village at a distance of about
one K.M. from behind the village Abadi. We found all the accused
namely Jasbir Singh alias Jassi armed with kirch, Nirmal Singh
armed with kirch, Ranjit Singh armed with soti, Swaran Singh armed
with kirch, Charan Singh armed with soti, Rajinder Singh armed
with kirch and Karamjit Singh armed with stick present there. At that
time accused Rai Singh was armed with stick was also present with
other accused. At that time all the eight accused had way laid
Harmanjit Singh and Jagtar Singh PWs. At that time we stopped our
tractor there and tried to intervene to save Harmanjit Singh and
Jagtar Singh from the accused. However, at that time, accused
Jasbir Singh gave a kirch blow hitting Harmanjit Singh PW in the
left side of the chest. At that time the accused also caused kirch
blows to Jagtar Singh PWs, Malkiat Singh, Joga Singh and
Tarlochan Singh were also caused kirch blows by the accused. At
that time, I retraced myself to save my self from the accused. At that
time many persons were attracted to the spot. After causing the
injuries to Harmanjit Singh, Jagtar Singh, Malkiat Singh, Tarlochan
Singh and Joga Singh the accused ran away from the spot, with their
weapons. At that time we picked up some sticks from the branches of
the trees and wielded the same in self defence and thereafter the
28 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -29-
accused managed to run away from the spot. After the occurrence all
the injureds were rushed to Samrala hospital in a vehicle arranged
by me at the spot. However, at that time I rushed to the village to
arrange money from the village. I was present in my house when I
was informed that Harmanjit Singh had died while on way to the
hospital. I then rushed to P.P. Nelon for informing the police about
the occurrence. Police party however, met me in the area of village
Poonian on the boundary of Tharkan-Poonian villages. I then made
my statement before the police, which was read over and explained
to me, before I signed the same in token of correctness. My statement
is Ex.PW-9/A.
Prior to the occurrence one Ajmer Singh of our village had
teased Paramjit Kaur alias Rani who is a cousin of Harmanjit Singh
deceased. At that time Harmanjit Singh and his brothers and some
women of village, cut the mustaches of of Ajmer Singh afore said.
However, later on the matter was compromised with the intervention
of the village panchayat. Accused, however, nursed a grudge against
Harmanjit Singh and others and caused injuries to Harmanjit Singh
deceased and others on that day. Ajmer Singh aforesaid belongs to
the party of the accused. After recording my statement, the police
accompanied me to the spot. At that time some blood stained earth
was lifted from the spot which was sealed into parcel, sealed with the
seal of investigating officer and taken into possession vide seizure
memo Ex.PD attested by PWs. My statement was recorded by the
police. The parcel of the blood stained earth is Ex.P-7."
49. The witness (supra) became subjected to a rigorous cross-
examination, relevant portion whereof becomes extracted hereinafter. A
keen perusal thereof, however underscores the factum that therebys the
accused, thus conceding not only the factum of the crime event taking place
but also theirs acquiescing to their incriminatory participation thereins. Since
the said witness in his cross-examination echoed, that the boundary line
separating village Takhran from village Poonian, is at a distance of 5-6 killas
from the place of occurrence. Moreover, since he states that he saw the
occurrence from a distance of about 8-9 karams and that none excepting the
29 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -30-
accused and the complainant party was present at the spot. Moreover, since
further during the course of his cross-examination, he made the hereinafter
extracted echoings. Resultantly, the said made unrebutted echoings palpably
comprise the accuseds' acquiescence qua the witness (supra) eye witnessing
the occurrence. Consequently, immense credence is to be assigned to the
testification rendered by the witness (supra), vis-a-vis the crime event.
Moreover, reiteratedly therebys the accused not only admit their
incriminatory participation in the crime event, but also admit qua the crime
event taking place, in the manner deposed by them.
"I had told the police that at the time of the occurrence I
retraced myself to save myself from the accused (Attention of
the witness drawn to his statement Ex.PW-9/A, wherein this fact
is not specially mentioned). I had also told to the police that at
that time we picked up some sticks and wielded the same in self
defence and thereafter the accused managed to run away.
(Attention of witness drawn to his statement Ex.PW.9/A,
wherein this fact is not mentioned). I had told the police that
after the occurrence I rushed to the village for arranging the
money (attention of the witness drawn to his statement Ex.PW-
9/A wherein this fact is not mentioned). On that day when I
reached home I was informed by the inmates of my house that
Harmanjit Singh had died while on way to the hospital. I might
have inadvertently stated in my statement above that I was
present in my house when I was informed about the death of
Harmanjit Singh. My wife told me about the death of Harmanjit
Singh. My wife did not know the person who informed her about
the death of Harmanjit Singh. My house is at a distance of 1
k.m. from the place of occurrence. I am illiterate and only can
sign the papers. I do not know any person in the name of Pawan
Singh. I however, know Inder Pal Singh of Samrala. I know
Pawan Singh son of Shri Jagjit Singh of village Poonian. He
didn't meet me in the village fair on that day. He however met
30 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -31-
me on various occasions after the occurrence. But did not meet
me on the day of the occurrence. After the occurrence I reached
my house in about 3 to 4 minutes. I started from the spot at
about 6 p.m. soon after the occurrence. Police persons were
present in the fair. I did not tell anything to any police officers
on duty about the occurrence. I remained at my house for about
10 minutes on that day. Police party met me in this case at
about 6-20 p.m. It took about 15-20 minutes in recording my
statement, by the police. I remained with the police for about 35
to 40 minutes. My statement as recorded by the police once.
Again said there after when I accompanied the police party to
the spot they also recorded my statement at the spot. I had also
signed my statement recorded at the spot. Village Takharan is
at a distance of 1½ k.m. from my village. No village fair was
held in Gurdwara Shaheedan on that day. I cannot say, whether
any langer was held in Gurdwara Shaheedan on that day or
not. I cannot say whether all the wrestlers who come to
participate in the fair first visit the Gurdwara to pay respect
there or not. Civil Hospital Samrala might be at a distance of
10 k.m. from the place of occurrence. It is correct that police
station Machhiwara falls on the way while on way from the
place of occurrence to Civil Hospital, Machhiwara via Gari
Bridge. On that day we had gone to see the village fair together
on foot. Village Poonian is at a distance of 4 k.m. from P.P.
Neelon, in case we have to go via boat. However, the ordinary
road passage is 8 to 9 k.m. While on way from Poonian to P.P.
Nelon, via Kucha path, one does not have to pass through
Takhran. In case we have to proceed from village Poonian to
P.P. Nelon via village Thakran, the distance is about 8-9 k.m.
The boundary line separating village Takhran from village
Poonian is at a distance of 5-6 killas from the place of
occurrence. I saw the occurrence from a distance of about 8-9
karams. None excepting the accused and the complainant party
was present at the spot. Ajmer Singh is the uncle of accused
Jasbir Singh from paternal side. I cannot however, tell the exact
31 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -32-
relationship between the two. No specific place was earmarked
for parking of vehicles, in the village fair. There was no mutual
fight between the parties and the accused were infact causing
injuries to Harmanjit Singh and others. Some persons were
passing from that side at the time of the occurrence. I do not
know who was the owner of the vehicle in which the injured
were sent to Civil Hospital, Samrala. At that only time driver
was in that vehicle. I did note the number of that vehicle. The
vehicle was arranged at the spot when the same passed from
that side. All excepting Harmanjit Singh were in senses, hen
they were sent to the hospital. The injured were having serious
injuries on their persons. Driver of the vehicle was not related
to any of us. I did not accompany the injured to the hospital as I
had to the village to arrange money. Driver of the vehicle was
asked to drop the injured out side the hospital. I do not know
whether Jarnail Singh and Gurmit Singh had attended the
village fair or not. On the day of the occurrence I had not gone
to the house of Jarnail Singh. Gurmit Singh son of Shri Bachan
Singh has got a separate house. I did not meet Jarnail Singh
and Gurmit Singh in the village on that day. I had not
accompanied the police to the hospital. When I accompanied
the police party to the spot, Halqa DSP was not present there.
However, Halqa DSP and Inspector of the Police Station came
after that. I cannot say after how much time they came to the
spot. Police party lifted some blood stained earth from the spot
and the writing work was also done at that time at the spot. I
did not make any payment regarding the vehicle in which the
injured were sent to the hospital. I did not inform any
lamberdar sarpanch, member sarpanch or any other person,
after I reached the village after the occurrence on that day.
Many persons had collected at the spot when the police party
reached there. The occurrence took place in 2-3 second. I was
freed by the police party from the spot. Accused Karamjit Singh
belongs to village Seh. Accused Rajinder Singh belongs to
village Katari. I cannot say at what distance village Seh and
32 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -33-
Katari are located from village Poonian. Accused Karamjit
Singh used to reside in our village with his maternals before the
occurrence. We started back from the village fair at about 5-35
p.m. Ajmer Singh whose mustaches was allegedly cut is a
different person from Ajmer Singh whose electric motor is
situated nearby. Occurrence took place in the fields of Ajmer
Singh by the side of the road. Place of occurrence is three
karams behind the passage (pathway). At that time we had
wielded some sticks in the defence. I also cannot tell the number
of stick blows caused by me. Similarly I cannot tell the stick
blows caused by other PWs. At that time sticks were lying
nearby as the branches of the trees had been recently removed
from the trees. The fair remains open till about 8 p.m. during
the fair days. Harmanjit Singh deceased was my real nephew.
He had also accompanied us to the village fair. On that day we
had taken seats on the body of the tractor and the same was
without any trolley. Jarnail Singh father Harmanjit Singh owns
tempo. It is correct that the aforesaid tempo was involved in an
accident resulting in injuries to Ghaman Singh Majbi of village
Ranwan. There was no dispute between Jarnail Singh and
Ghaman Singh over payment of money. Volunteered, a case as
filed regarding that accident. Jarnail Singh lost that case and
necessary payment was made to Ghaman Singh. It is incorrect
to suggest that Ghaman Singh was intentionally caused injuries
by Harmanjit Singh with the tempo. Deepa is a nephew of Bant
Singh sarpanch. I do not know whether Harmanjit Singh had
caused injuries to Deepa aforesaid. I do not know whether
Harman Jit Singh had also caused injuries to Jassi of Samrala.
It is incorrect to suggest that Harmanjit Singh had enmity with
various persons and used to pick up quarrel with different
persons, and also with the students in the college. It is correct
that Deepa was earlier caused injuries by Harmanjit Singh.
Volunteered, accused Ranjit Singh and his brother had also
caused injuries to said Deepa. I cannot say whether all the
accused had also gone to attend the village fair or not. It is
33 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -34-
incorrect to suggest that Harmanjit Singh deceased used to pick
up quarrel with every person unnecessarily. It is also incorrect
to suggest that Harmanjit Singh deceased sustained injuries in
the fair at the hands of some unidentified persons. It is also
incorrect to suggest that the other PWs self suffered injuries on
their person. It is also incorrect to suggest that the other PWs
self suffered injuries on their person. It is also incorrect to
suggest that the accused have been falsely implicated in this
case. It is incorrect to suggest that Ajmer Singh whose
mustache allegedly cut was not in any way related to the
accused or any of them. It is also incorrect to suggest that
Ajmer Singh aforesaid does not reside in our village. It is
incorrect to suggest that I have deposed falsely being related to
Harmanjit Singh deceased. It is also incorrect to suggest that at
the time of alleged occurrence accused Jasbir Singh was
admitted in Civil Hospital, Ludhiana much prior to the alleged
occurrence.
It is incorrect to suggest that accused Rajinder Singh is
not related to the other accused. Volunteered, he called Nirmal
Singh and Jasbir Singh as his maternal uncle. I have never gone
to village Katari. I know the father of accused Rajinder Singh
for the last 2-3 years. I have not dealing with the father of
accused Rajinder Singh. I am not working as a driver privately
and have no fixed house of working. I, however, go almost
daily. It is correct that police party generally remain on duty on
the Gari bridge. It is incorrect to suggest that I was not present
at the time of alleged occurrence. It is also incorrect that at the
time of the alleged occurrence I was away on duty and got the
case falsely registered against the accused, due to enmity with
the accused. It is incorrect to suggest that I have deposed
falsely."
50. Moreover, reiteratedly conspicuously also since there is no
suggestion to the said witness in his cross-examination, appertaining to the
hereinabove principles governing the makings of a well espousal
34 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -35-
appertaining to the relevant assault becoming perpetrated in the exercise of
the right of private defence of body nor also when there is no admission to
the said suggestions, thereupon the right of private defence remains
unproven. Contrarily, reiteratedly in the wake of the above admissions, the
accused reiteratedly admit not only crime event taking place but also admit
theirs participation in the crime event. Reiteratedly when principles
governing the exercise of private defence, as stated (supra) are subject to the
accused proving;
a) That the complainant were the aggressors.
b) The accused proving that after the exercise of right of
private defence arose from the aggression becoming initiated by
the complainant and not by the accused.
c) To prove that the numerical strength of the complainant
party was far superior than to the numerical strength of the
accused.
d) The accused proving that the complainant party were
wielding more deadly weapons that the weapons wielded by the
accused party.
51. Since for reasons (supra) thus proof for satiating the principles
(supra) remains unadduced, therebys the benefit of the apposite exceptions
to criminal liability rather cannot, as argued by the learned counsel for the
accused, become afforded to the accused.
52. Likewise, similar echoings occur in the cross-examinations of
the other eye witnesses to the crime event, who respectively stepped into the
witness box as P10, PW13 to PW-15. Consequently, inferences as became
drawn, after a wholesome evaluation of the testimoney of PW-9, are also to
be drawn vis-a-vis the testifications made by eye witnesses (supra).
53. Though, the learned counsel for the accused has argued that
even if the plea of right of private defence fails, yet when the crime event
35 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -36-
which took place at the crime site, was a sequel of a sudden provocation
becoming purveyed by the complainant party to the accused, therebys the
conviction is required to be modified from an offence of murder to an
offence of culpable homicide not amounting to murder, and, that consequent
thereto sentence of imprisonment is to be imposed, but the said contention is
rejected.
54. The reason for forming the above inference ensues from the
factum that no suggestions to the said effect became put to the witnesses
concerned, nor any answer favourable to the accused became rendered by
the prosecution witnesses. Therefore, but obviously the said contention is
out rightly rejected.
MEDICAL EVIDENCE (POST MORTEM REPORT)
55. The autopsy upon the body of deceased Harmanjit Singh was
conducted on 19.08.1998 by PW-1 along with Dr. Shashi Kant and Dr.
Tarkjot Singh. PW-1 has proven qua his, authoring Ex.PA, as relates to the
autopsy as made upon the body of deceased.
56. Moreover, he has proven that the cause of death of deceased
Harmanjit Singh, was owing to hemorrhage and shock caused by injury No.1
and 2 which were sufficient to cause death in the ordinary course of nature.
All the injuries were declared to be ante mortem in nature. The relevant ante
mortem injuries as noticed by PW-1 on the body of deceased are extracted
hereinafter.
"1. Penerating incised wound 2cm x ½ cm with inverted
margine on the left side of front of chest, 9 cm from the nipple,
3cm from midline and 3rd intercostal space.
2. Penerating incised wound 1cm x 1cm with overated
margins on the left side of back of chest, 12 cm from midline
and 4cm below lower and of scupla. On dissection of injuries
36 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -37-
No.1 and 2 there were heamothorax 2cm x ½ cm injury in the
left lung. There were heamo pericardium and 2cm x ½ cm cut
passing through the interior and posterior ball of left ventrical.
The track of injury communicated with injury No.2."
57. The incriminatory weapon(s) of offence(s) (Ex.P1) was shown
to PW-1, thus during the course of his making his testification(s), before the
learned trial Judge concerned. In his testification he has spoken that "injuries
on the person of the deceased could be result of the Kirch (Ex.P1)". The
effect of the above, is that, especially when no efficacious cross-examination
was made upon the said prosecution witness, by the learned defence counsel,
thus thereby, the defence conceding qua the said ante mortem injuries
declared in PMR were, as such, inflicted on the relevant portion of the body
of the deceased, with the users, rather by the accused-Jasbir Singh, thus of
recovered Kirch. Consequently, thereby medical evidence also corroborates
eye witness account as well as the recovery memos (supra).
FINAL ORDER
CRA-D-556-DBA-2008 and CRR-169-2002
58. Therefore, for the reasons to be assigned hereinafter the learned
trial Judge concerned, has mis-directed himself, in convicting the convict
Jasbir Singh, only for offences punishable under Sections 304 Part I IPC,
and, not convicting any of the other co-accused rather for offence(s)
punishable under Section 302 of the IPC, whereas, the charge framed against
all the accused, thus related to an offence punishable under Section 302 of
the IPC, besides became rested on the plank that the accused rather had with
a common object formed an unlawful assembly. Therefore, if cogent
evidence did make, thus palpably appearances, thus suggestive that all the
accused had evidently formed an unlawful assembly, evidence whereof, has
37 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -38-
imminently surged forth. Resultantly, even if the lethal assault was caused
by one of the accused, whereas, the other co-accused caused grievous
injuries on the person of the injured. Nonetheless, each of the accused who
formed an unlawful assembly, rather merely on the above score, qua the
fatal injury becoming not caused by each of them, but becoming caused only
by one of them, inasmuch as, the lethal injury becoming caused by convict
Jasbir Singh, thus were not required to be saved from the attraction qua them
vis-a-vis the principle of vicarious criminal liability, as enshrined in Section
149 of the IPC. The reason for drawing the above conclusion emanates from
the factum, that all the accused, thus not only formed an unlawful assembly
but also thereby they are deemed to be holding a common object. In sequel,
when reiteratedly all the co-accused concerned, who were evidently
members of an unlawful assembly, besides shared a common object, thus
with the principal accused (supra), thereupons all the accused were also
required to be convicted for a charge drawn for an offence punishable under
Section 302 of the IPC, irrespective of the factum, that the fatal injury
becoming not being caused by each of them, but becoming caused by only
one of them, inasmuch as, the same becoming caused by accused Jasbir
Singh. Resultantly, therebys the finding of acquittal, as became recorded by
the learned trial Judge concerned, vis-a-vis all the accused for a charge
drawn for an offence punishable under Section 302 read with Section 149 of
the IPC, requires becoming interfered with.
59. Reiteratedly therebys when there was a sharing of common
object along with the principal accused concerned. Consequently, even if the
other co-accused did not cause the lethal wound but when they also caused
grievous ante mortem injuries upon the deceased, upon theirs joining an
38 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -39-
unlawful assembly and were evidently prosecuting a common object, thus
with the principal accused. Resultantly, each of the accused were liable to be
convicted for an offence punishable under Section 302 read with Section 149
of the IPC.
60. Strength to the above inference ensues from the factum that the
evident formation of an unlawful assembly, and also evidently prosecuting a
common object besides the concomitant thereto common object etching in
the minds of each of the members of the unlawful assembly, thereupon
unless some of the members of the unlawful assembly were evident
bystanders to the crime event, therebys each of the members of the unlawful
assembly, irrespective of the fatal blow being struck by only one of them,
thus were required to be attributed an incriminatory role, at par with the
incriminatory role assigned to the principal convict-appellant Jasbir Singh.
61. Since the accused were not bystanders to the crime event
thereupons, when they did evidently made incriminatory participations in the
crime event, therebys thus reiteratedly all of them became vicariously liable
for the offence of murder, as became committed by the principal accused
and/or by the principal in the first degree, inasmuch as, by convict Jasbir
Singh.
62. Accordingly, in view of the above, the instant appeal/revision
are allowed. Consequently after allowing the instant appeal/revision filed
respectively by the State of Punjab, and by the complainant, this Court
quashes the impugned verdict of acquittal, as made by the learned trial Judge
concerned, wherethrough, he made a finding of acquittal in respect a charge
drawn for an offence punishable under Section 302 of IPC, and modifies the
same to the extent that respondent Nos. 1, 2, 6, 7 and 8 are held guilty for an
39 of 40
Neutral Citation No:=2024:PHHC:125120-DB
CRA-D-556-DBA-2008 (O&M), CRA-S-852-SB-2001 (O&M)
& CRR-169-2002 (O&M) -40-
offence punishable under Section 302 read with Section 149 of the IPC. The
accused are directed to be produced in custody before this Court, on
30.09.2024 for theirs being heard on the quantum of sentence. If the accused
concerned, are on bail, therebys they are ordered to be forthwith taken into
custody through the learned trial Judge concerned, forthwith drawing
committal warrants against the accused.
CRA-S-852-SB-2001
63. In consequence, the impugned verdict of conviction, and, also
the consequent therewith order of sentence, as becomes respectively
recorded, and, imposed, upon the appellant-convict by the learned trial Judge
concerned, do not suffer from any gross perversity, or absurdity of gross
mis-appreciation, and, non-appreciation of the evidence on record. In
consequence, there is no merit in the appeal, and, the same is dismissed. If
the appellant is on bail, thus he is ordered to be forthwith taken into custody
through the learned trial Judge concerned, forthwith drawing committal
warrants against the accused.
64. Case property, if any, be dealt with in accordance with law, but
only after the expiry of the period of limitation for the filing of an appeal.
65. Records be sent down forthwith.
66. Miscellaneous application(s), if any, is/are, also disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
18.09.2024
Ithlesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
40 of 40
