Nishan Singh vs State Of Punjab

NISHAN SINGH ...Appellant

Versus

STATE OF PUNJAB ...Respondent

WITH

CRIMINAL APPEAL NO. 326 OF 2007

AND

CRIMINAL APPEAL NO. 467 OF 2007

JUDGMENT

S.B. SINHA, J :

1. These Appeals arising out of a common judgment.

2 2. We would, at the outset, place on record that three trials were held

one after the other and the judgments therein were delivered also one after

the other in relation to an incident which took place one after the other but

wherefor only one First Information Report had been lodged.

3. On or about 30th June, 1999 at 2.30 p.m., Rachhpal Singh along with

Sawinder Singh and Hardev Singh had an altercation with one Resham

Singh S/o Subeg Singh. Rachhpal Singh inflicted a knife injury on the right

wrist and chest of Resham Singh. He picked up the knife from which was

with Pargat Singh II S/o Shangara Singh who was accompanying him.

Resham Singh fell down. Hardev Singh and Sawinder Singh also

allegedly inflicted `dang' blows on Resham Singh. An alarm was raised by

Resham Singh's father Subeg Singh. Resham Singh died on the spot.

The said incident is the subject matter of Criminal Appeal No. 326 of

2007.

4. As an off shoot to the murder of the said Resham Singh for which

the said Rachhpal Singh was tried and convicted, another incident took

place on the same day. Hardev Singh, Dilbagh Singh and Baljit Singh were

in their house when Savinder Singh came there armed with a gandasi and

started hurling abuses on them. It was objected to by Dilbagh Singh. 3

Sawinder Singh inflicted a gandasi blow on the head of Dilbagh Singh, who

purportedly in exercise of his right of private defence inflicted a blow on

Sawinder Singh. Pargat Singh -II s/o of Shangara Singh who was a

witness to the murder of Resham Singh arrived there with his brother

Mehal Singh. Whereas Pargat Singh -II was armed with a rifle, Mehal

Singh came empty handed. Baljit Singh allegedly climbed on the roof of a

nearby Gurudwara and started hurling brickbats. A exhortation was given

by Mehal Singh asking Pargat Singh-II to shoot Baljit Singh

whereupon a shot was fired by him hitting the left shoulder of Baljit Singh.

He was brought to his house in an injured condition. Mehal Singh and

Pargat Singh-II are said to have run away from the said place of occurrence.

6. The third incident took place when brother of Baljit Singh, Hardev

Singh and Dilbagh Singh (PW 4) after arranging a tractor trolley were

proceeding with the injured persons to Amritsar. The tractor was being

driven by Hardev Singh. When they were passing through Jasraur and

reached near the house of one Karaj Singh, Pargat Singh-I s/o of Subeg

Singh, the appellant in Criminal Appeal No. 467 of 2007, and Nishan

Singh, the appellant in Criminal Appeal No. 325 of 2007, arrived. They

were accompanied by Major Singh. Nishan Singh is said to have been

armed with a .12 bore gun.

4

Pargat Singh-I exhorted that as Hardev Singh had murdered his

brother Resham Singh, he should not be allowed to go alive. Nishan

Singh fired a shot from his gun which hit Hardev Singh on his left ear as a

result whereof the tractor went out of control and dashed against the house

of Jagtar Singh. Hardev Singh died on the spot. More shots were fired as

a result whereof Sudagar Singh, Chowkidar, and another person of Sheikh

Bhatti were injured. Baljit Singh, Dilbagh Singh and the chowkidar were

taken by Swaran Singh to Guru Nanak Dev Hospital in a mini Bus. A First

Information Report was recorded by the sub inspector Ajit Singh PW 11.

8. Nishan Singh was charged for commission of an offence under

Section 302 and 307 of IPC; whereas Pargat Singh-I was charged under

Section 307 and 302/34 IPC. Major Singh was charged for commission of

alleged offence under section 302 read with Section 34 of the Indian Penal

Code.

9. Whereas Nishan Singh was acquitted of the charges under Section

307 IPC, he was convicted for commission of the offence under Section 302

of the Indian Penal Code. Pargat Singh-II was convicted for commission of

the offence under Section 302/34 and acquitted for commission of offence

under Section 307 IPC. Major Singh was acquitted of the charges framed

against him.

5

10. Originally, however, no charge sheet was filed as against Pargat

Singh-I PW1, Swaran Singh was examined before the learned Sessions

Judge in the Sessions Case on 12.9.2000. On the basis of the statements

made by him, an application was filed on 25th September, 2000 for

summoning Nishan Singh on which was allowed.

11. Upon appearance of Nishan Singh, fresh charges were framed against

all the three accused persons.

12. Statement of PW 1 was recorded again and he was cross examined as

PW3. Although three eye-witnesses were examined on behalf of the

prosecution, the learned Additional Sessions Judge did not place any

reliance on the evidence of PW 5 constable Inder Singh. Reliance has been

placed both by the Sessions Judge as also High Court on the testimonies of

PW3, Swaran Singh and PW4, Dilbagh Singh.

13. Three appeals have been filed, two in relation to the 3rd incident and

one preferred by Rachhpal Singh in relation to first incident.

14. Mr. Uma Datta, learned counsel appearing on behalf of the

appellants in Criminal Appeal No. 325 of 2007 and 467 of 2007, would,

inter alia, submit :

6

1) As after summoning Nishan Singh in terms of Section 319 of the

Code of Criminal Procedure, Swaran Singh was not examined-in-

chief afresh by the prosecution and was only tendered for cross

examination, the entire trial as against him became vitiated in law as

the provision contained in sub-section 4 of Section 319 of Code of

Criminal Procedure was not complied with, which is mandatory in

nature.

2. The learned courts below committed a serious error in regard to the

identity of the appellants, namely, Pargat Singh who had nothing to

do with the first incident.

3. The learned courts below failed to take into consideration the effect

of the deposition of Sudagar Singh, chowkidar, who admittedly was

one of the persons injured in the incident as he categorically stated

that neither of the appellants was present when the incident took

place.

4. Although Nishan Singh was named in the examination in chief by

PW1, as in his cross examination he has attributed the overt act of

firing the shot to Pargat Singh-I, no case can be said to have been

made out as against the appellant in Criminal Appeal No.325 of 2007. 7

5. Reliance placed on the evidence of Dilbagh Singh by the learned

courts below is wholly misplaced inasmuch as keeping in view the

nature of injuries suffered by him as was described by D.W.2 Dr.

Gurmanjit Rai, evidently he was not in a position to witness the

occurrence.

6. The prosecution case being commission of overt acts of Pargat Singh-

I to extortion, the evidence of the prosecution that Nishan Singh had

fired a shot cannot be accepted.

15. Mrs. Manjeet Chawla, Ld. Counsel appearing on behalf of Rachhpal

Singh, the appellant in Criminal Appeal No. 326 of 2007, submitted :

1) Having regard to the fact that the appellant was not armed with any

weapon and as he is said to have snatched the knife from Pargat Singh -

II, he cannot be said to have any intention to cause the murder of Resham

Singh and, thus, his conviction under Section 302 of the Indian Penal

Code is not sustainable.

2) The statement of the witnesses having been recorded by the investigating

officer six hours after the incident, no reliance could have been placed

thereupon thereupon by the courts below.

8

3) All the prosecution witnesses examined in the matter being interested

witnesses, the Courts below misdirected themselves by placing explicit

reliance on them.

4) The effect of acquittal of Sawinder Singh having not been considered by

the Courts below while appreciating the evidence brought on record by

the prosecution, the impugned judgment is liable to be set aside.

16. Mr. Kuldip Singh, learned counsel appearing on behalf of the State,

on the other hand, submitted

1. The judgment of acquittal in favour of Sawinder Singh was passed by

the learned sessions judge as no evidence could be brought on record

against him and inasmuch as the prosecution had established that it

was appellant Rachhpal Singh who caused all the injuries upon

Resham Singh, there is no infirmity in the impugned judgments.

2. It is incorrect to contend that Sawarn Singh was not examined again

after summoning of Nishan Singh. As charges were framed on 30th

November 2001 and he was examined afresh on 5.9.2003 as PW3; the

requirements of sub-section 4 of Section 319 were fully complied

with.

9

3. In any event, keeping in view the provisions contained in Section 465

of the Code of Criminal Procedure, the judgment of conviction should

not be reversed, unless a real prejudice is shown to have been

suffered by the accused.

4. Nishan Singh and Pargat Singh having been charged for commission

of an offence under Section 302/34 IPC and the same having been

established, it was not necessary to prove any specific overt act on the

part of each of them.

5. There is nothing to show as to why the evidence of Dilbagh Singh

shall not be accepted inasmuch as he suffered a brain injury and was

examined by DW2 after three years of the incident.

17. Indisputably, Nishan Singh and Pargat Singh-I were named in the

F.I.R. The first informant attributed overt acts to them. They had the

motive to commit the offence. Offences were committed one after the other

with a view to take revenge.

18. Nishan Singh however was not charge sheeted for reasons best

known to the investigating officer. PW -1 Sawinder Singh's evidence

categorically attributed the role played by him in respect of the death of

Hardev Singh and causing injuries to Dilbagh Singh PW 4. 10

19. Deposition of PW 1 was recorded on 12.9.2000. After summoning

Nishan Singh in terms of Section 319 of the Code of Criminal Procedure,

charges were framed afresh on 30th November, 2001. He was examined in

chief again on 5.9.2003 as PW3. It is, therefore, not correct to say that he

was not examined in chief afresh. Requirements of sub-section (4) of

section 319 of Code of Criminal Procedure, therefore, have been complied

with in this case.

Strong reliance has been placed by Mr. Datta on a decision of this

Court in Shashikant Singh v. Tarkeshwar Singh and Ors. [(2002) 3 SCR

400]. It was held therein :

"The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatory to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their 11

presentation for the purpose of the cross- examination on the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court."

20. In that case, two separate trials were held in the sense that the

examination in chief and the cross examination of the prosecution witnesses

were over, when the trial restarted. It was in that factual matrix, this court

laid down the afore-mentioned proposition of law.

Sub-section 4 of Section 319 Cr.P.C., however, must be read with the

residuary provision contained in of Section 375 thereof. Complaint in

regard to non compliance of statutory provisions must be made at the

earliest opportunity. When a judgment is pronounced; a case must be made

out that by reason of a procedural irregularity, failure of justice has 12

occurred. Section 465 of the Code of Criminal Procedure seeks to achieve a

salutary principle.

21. What would constitute `failure to justice' came up for consideration

before this Court in State of Madhya Pradesh v. Bhooraji & Ors. [(2001) 7

SCC 679], wherein, inter alia, it was held that :

"We conclude that the trial held by the Sessions Court reaching the judgment impugned before the High Court in appeal was conducted by a court of competent jurisdiction and the same cannot be erased merely on account of a procedural lapse, particularly when the same happened at a time when the law which held the field in the State of Madhya Pradesh was governed by the decision of the Full Bench of the Madhya Pradesh High Court."

In Dr. M.C. Sulkunte v. State of Mysore [AIR 1971 SC 508], this

Court held :

"It has been emphasized in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation."

22. In Central Bureau of Investigation v. V.K. Sehgal & Anr. [(1999) 8

SCC 501], it was held :

13

"10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub- section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court."

It was observed :

"11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering check is to safeguard public servants from frivolous or mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure."

14 It does not appear that even any contention was raised in that behalf.

{See also State of Haryana v. Ram Singh [2002 (1) SCR 208]}.

However, in view of the factual matrix obtaining herein, it is not

necessary to delve deep into the said question as in this case the statutory

requirements have been complied with.

23. The Courts below have clearly noticed the supportive role Pargat

Singh-I and Pargat Singh-II. They have proceeded on that basis. Whereas

Pargat Singh-II was connected with the first occurrence, the appellant

Pargat Singh-I was connected with the third occurrence with which we are

concerned herein. The courts below had not committed any mistake

whatsoever in that behalf.

34. The fact that the injured persons were being removed to a hospital in

a tractor trolley is not in dispute. It is also not in dispute that as a result of

being hit by a shot fired by Nishan Singh, the tractor dashed into the wall of

Jagtar Singh's house and the got damaged. Sudagar Singh who was a

Chowkidar was also injured in the incident.

25. Both the appellants herein had been named in the FIR. They were

tried together. Evidently, they came at the spot with a common intention.

Both of them had weapon in their hands. The prosecution witnesses had 15

to take the injured Dilbagh Singh to the hospital by arranging a mini bus.

Whereas Baljit Singh died in the hospital, PW 4 Dilbagh Singh survived.

26. The First Information Report was lodged at 8.30 p.m. by Subeg

Singh. One First Information Report was lodged in respect of all the three

incidents. Three murders, as noticed hereinbefore, took place one of after

the other. Some other persons also received injuries. When three instances

occurred one after the other, keeping in view the fact that each had a link

with the other, it is difficult for us to know that the appellants would be

falsely implicated by Subeg Singh whose son was one of the deceaseds.

27. It has not been denied or disputed that Pargat Singh-I and Nishan

Singh had a motive to commit the offence.

It is true that Sudagar Singh had stated that he could not identify the

assailants, but no reliance can be placed on the said statement that the death

of Hardev Singh was caused by a gunshot injury is not denied by Sudagar

Singh. He was a prosecution witness. He was given up by the prosecution

presumably on the basis that he had been won over.

Strangely, the Public Prosecutor did not confront him with his earlier

statements. It demonstrates how poorly the prosecution case was

conducted.

16

28. Dilbagh Singh is an injured witness. He has given a complete

account of the entire occurrence. We do not see any reason to disbelieve

his testimony. He had been put to stringent cross examination. Even no

suggestion was made to him that he could not have witnessed the incidence.

If it was within the knowledge of the defence that Dilbagh Singh was not in

a position to speak about the occurrence, he should have been accosted

therewith. He could have given an explanation. If his being carried to

the hospital in an injured condition is accepted and if furthermore it stands

established that all injured persons were brought to the hospital together, it

is difficult to accept the contention of the learned counsel that PW 4

Dilbagh Singh could not be present at the time when the occurrence took

place. In his cross examination, Dilbagh Singh categorically stated that he

was fully conscious at the time of the death of Baljit Singh.

29. DW 2, Dr. Gurmanjit Rai who was examined on behalf of the

defence in his deposition stated that he had examined Dilbagh Singh at 5.30

p.m on 2.7.1999 and to the said extent, he corroborated the statements PW1,

Rishi Ram and PW2 Dr. Ashok Chanana.

30. Furthermore, according to DW2, he examined Dilbagh Singh on

2.7.1999. How he could depose in regard to the condition of the patient as

on 13th June, 1999 is not known. He declared the injury as grievous only 17

after he received the report of the radiologist and that of the surgeon. His

right upper limb function was found to have been impaired.

31. Reliance has been placed on Prem Sagar v. Dharambir & Ors. [(2004)

1 SCC 113] by Mr. Datta to contend that Section 34 of the Indian Penal

Code is not attracted. We are not in a position to agree with the said

submission. Both Pargat Singh-I and Nishan Singh came together; at least

one of them armed with a fire arm. One of them exhorted and another

fired. It is accepted by the defence that at least one person was killed and

two other were injured in the said firing. Evidently, more than one shot was

fired.

32. The question is as to whether common intention was formed for

commission of an offence or not and it depends upon the fact of each case.

It was in the factual scenario obtained therein, this court in Prem

Sagar (Supra) opined that the accused was not proved to be linked in the

manner so as to bring the applicability of Section 34 of the Indian Penal

Code. The common intention of the accused persons was not found to be

present therein, when the incident took place, in the backdrop of the facts of

the said case. It was submitted that the court should be slow to interfere

with a judgment of acquittal. {See Suresh & Anr. v. State of U.P. [(2001) 3 18

SCC 673] followed in Rotash v. State of Rajasthan [2006 (13) SCALE

186]}.

Reliance has also been placed on State of Haryana v. Ram Singh

[(2002) 1 SCR 208] wherein this Court held :

"While it is true that the law is well settled in regard to the issue that in an appeal against conviction for the offence of murder Supreme Court would be rather slow to intervene in the event of there being a concurrent finding of fact but it is equally settled that in the event the finding, which suffers from the vice of perversity of any fundamental rules or even a definite procedural injustice going to the root of the prosecution case question of the Apex Court being slow in intervention would not arise."

We have herein proceeded on applying the principles laid down

therein.

34. So far as the case of Rachhpal Singh is concerned, it may be true that

no independent witness was examined. But that by itself is not sufficient to

disregard the statements of the prosecution witnesses totally.

PW3 Swaran Singh and PW 4 Dilbagh Singh were the eye-witnesses.

Both the Ld. Trial Judge as also the High Court considered their depositions 19

in great details. No contention has been raised that the said findings are in

any way perverse or not in conformity with the evidences or record.

35. One of the accused may be acquitted as the prosecution witness might

not have attributed any overt act to him. But it is well settled that acquittal

of one accused itself would not lead to the conclusion that the entire

prosecution case was false.

In Sukhdev Yadav & Ors. v. State of Bihar [(2001) 8 SCC 86], this

Court held :

"It is now well-settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence."

It was further held by this Court while relying upon appabhai & Anr.

v. State of Gujarat [1988 Supp.1 SCC 241], that discrepancies which do not

shake the basic version of the prosecution case may be discarded.

36. The deceased Resham Singh suffered as many as four injuries. The

folllwing injuries have been shown in the autopsy report : 20

1) "An oblique incised wound 4 x 1.2 cm with clotted blood was present on the front and right side of chest, 7.00 cm below and medical to right nipple at 4 O' clock position.

2) An oblique incised wound 4.3 x 1.00 cm with clotted blood was present on the left infra scapular region.

3) An oblique incised wound 3 x 1.2 cm with clotted blood was present on the back and left side of the chest, 7.00 cm below and medical to injury no.2.

4) A slashed incised wound 3.5 x 2.8 cm with clotted blood was present on the posterior lateral aspect of right wrist."

37. The injuries were inflicted on the vital parts of the body and some of

them were sufficient in the ordinary course to cause death or likely to cause

death, Part II of Section 304 of the Indian Penal Code shall have, thus, no

application in this case. Rachhpal Singh might have been unarmed, but

with a view to inflict injury on the deceased, he snatched the knife which

was being carried by Pargat Singh-II. Dilbagh Singh saw the entire

occurrence. He examined himself as PW 4. If a person snatches a weapon

carried by someone else and brutally kills another, it cannot be said that he

did not have any intention to cause death. Whether the accused had any

intention to kill the deceased must be judged upon taking into consideration

the fact situation obtaining in each case. {See Harendra Nath Mishra & Ors. 21

v. State of Bihar [JT 2002 (10) SC 157] relying upon Suresh (supra);

Ramashish Yadav v. State of Bihar [(1999) 8 SCC 555]; Gajjan Singh v.

State of Punjab and Pandurang [(1976) 3 SCC 391]; Tukia and Bhillia v.

The State of Hyderabad [(1955) 1 SCR 1083]}. [See also Rotash (Supra)]

The matter has been considered in some details by Vivian Bose J, in

Virsa Singh v. State of Punjab [AIR 1958 SC 465] wherein it was opined :

"In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convict, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense; the kind of enquiry that 'twelve good men and true' could readily appreciate and understand."

{See also Hari Yadav v. State of Bihar [2007 (14) SCALE 656]}

38. For the reasons above mentioned, there is no merit in these appeals,

which are hereby dismissed.

22

.............................J. [S.B. Sinha]

.............................J. [Harjit Singh Bedi] New Delhi.

March 7, 2008.