Paramjeet Singh @ Pamma vs State Of Uttarakhand

1. This appeal has been filed against the judgment and order dated

30.4.2004, passed by the High Court of Uttarakhand at Nainital,

dismissing the Criminal Appeal No.1767 of 2001 against the

judgment and order of the Sessions Court dated 9.8.2001 in Sessions

Case No.254 of 2000 convicting the appellant under Sections 302 and

307 of the Indian Penal Code, 1860 (hereinafter called `IPC') and

sentencing him to life imprisonment and 10 years rigorous

1 imprisonment respectively. The Sessions Court had also imposed a

fine of Rs.10,000/-, failing which the appellant has to undergo another

3 years rigorous imprisonment.

2. The facts and circumstances giving rise to this case are that an

FIR was lodged on 27.4.2000 at 6.40 P.M. with Police Station,

Rudrapur, by complainant Ajit Singh (PW.1) alleging that his grand

father Hardayal Singh had given certain shares in his immovable

properties to his three sons, namely, Gopal Singh, Joginder Singh and

Mahender Singh and denied a share to his father Inderjit Singh and

uncle Paramjit Singh, the appellant. The appellant had fraudulently

sold a plot at Rudrapur and to prevent him from repeating such act,

appellant's father Hardayal Singh executed a General Power of

Attorney, as well as a Will, dated 27.04.2000 in respect of one of his

properties in favour of the complainant's father, Inderjit Singh and

thus, the appellant became annoyed. The appellant misbehaved with

his father Hardayal Singh and brother Inderjit Singh and threatened

them with dire consequences, at the office of the Sub-Registrar at

Kichcha.

2

3. On the same day in the evening at 5.45 P.M., the complainant

Ajit Singh (PW.1), his father Inderjit Singh and brothers Surender

Singh, Saranjit Singh alongwith Satwant Singh and Gurmit Singh

went to drop Hardayal Singh at his residence in Matkawali Gali.

When they were alighting from the car, the appellant Paramjit Singh

and two or three of his associates were sitting there. The appellant,

with an intention to kill them, started firing. Thus, complainant's

father Inderjit Singh, his brothers Surender Singh and Saranjit Singh,

died on the spot and complainant Ajit Singh (PW.1), his brother Baljit

Singh (PW.2) and his grand-father Hardayal Singh got injured. The

incident was witnessed by Gurmit Singh (PW.3), Satwant Singh

(PW.4) and cousins of complainant Ajit Singh (PW.1), Rajinder

Kumar (PW.5), Harpal Singh (PW.6) and Hira Lal (PW.7).

4. The Investigating Officer recovered and prepared the Seizure

Memos of plain soil, blood soaked soil, three empty cartridges and a

turban. The dead bodies of the aforesaid three persons were recovered

vide Panchnama and postmortems were conducted on the bodies of all

the three deceased on 28.4.2000 in the Base Hospital, Haldwani. The

other injured persons, namely, Ajit Singh (PW.1), Baljit Singh (PW.2)

and Hardayal Singh were examined medically.

3

5. During the investigation on 4.5.2000, the Investigating Officer

recovered the licensed Gun of the appellant, on the disclosure made

by appellant himself, from an Arms Dealer at Rampur and the

recovery memo and site plan of the place of recovery was prepared.

The empty cartridges and recovered Gun were sent to the Forensic

Science Laboratory, Agra and other materials e.g., blood soaked soil

and the clothes etc. of the deceased were also sent to FSL, Agra for

chemical analysis.

6. The Investigating Officer completed the investigation and

submitted the charge-sheet against the appellant. He denied the

charges and claimed trial. The prosecution examined 8 witnesses to

substantiate its case before the trial Court. Out of 8 witnesses, 7

turned hostile. After conclusion of the trial, the learned Sessions

Court vide its judgment and order dated 9.8.2001 found the appellant

guilty of the offences punishable under Sections 302 and 307 IPC and

awarded the sentences mentioned hereinabove.

7. Being aggrieved, the appellant preferred Criminal Appeal

No.1767 of 2001 before the High Court of Uttarakhand at Nainital

4 which has been dismissed vide impugned judgment and order dated

30.4.2004. Hence, this appeal.

8. Shri S.R. Bajwa, learned senior counsel appearing for the

appellant, has submitted that out of 8 witnesses examined by the

prosecution, 7 turned hostile and none of them deposed that the

appellant had committed any offence. The Investigating Officer

remained the only witness in the trial who had not turned hostile. The

gun was allegedly recovered at the disclosure of the appellant as

required but it was not in consonance with Section 27 of the Indian

Evidence Act, 1872, on the basis of which the recovery of the Gun

could be proved. The trial Court as well as the High Court erred in

convicting the appellant as none of the alleged pieces of

circumstantial evidence could be proved by the prosecution. The

courts below committed an error in accepting the inadmissible

evidence e.g., confession before Police official; contents of statement

recorded under Section 161 of Code of Criminal Procedure, 1973

(hereinafter called `Cr.P.C.'); using the FIR as a substantial piece of

evidence; and recovery of 12 Bore Gun from an Arms Dealer at

Rampur on the disclosure of the appellant and held the appellant

5 guilty. No witness was examined to prove that the material collected

by the Investigating Officer had been placed in safe custody in the

Malkhana; the Register maintained by the arms dealer at Rampur had

not been produced before the court nor had the arms dealer been

examined. None of the relevant incriminating pieces of circumstantial

evidence had been put to the appellant by the court while examining

him under Section 313 Cr.P.C. The circumstances of the absconding

of the appellant for 6 days had been taken to show him as guilty

person. In spite of the fact that a compromise by Panchayat was not

proved before the trial Court, it had been used against the appellant.

More so, no motive or genesis of occurrence could be established on

the record of the case. The conviction is totally based on conjectures

and surmises, thus, liable to be set aside.

9. Per contra, Shri Sunil Kumar Singh, learned counsel appearing

for the State of Uttarakhand has vehemently opposed the appeal

contending that appellant had been found guilty of committing murder

of 3 members of his own family and injuring 3 other family members.

The informant Ajit Singh (PW.1) and Baljit Singh (PW.2) have

admitted that they were present at the place of occurrence. They

6 suffered injuries but denied the involvement of the appellant in the

crime altogether. The other eye-witnesses even denied their presence

at the place of occurrence itself. In such a fact-situation, where all the

witnesses had been won over by the appellant, as the family had

pardoned the appellant, the case otherwise stood proved by

circumstantial evidence. The courts below have rightly convicted the

appellant. All relevant questions had been put to the appellant under

Section 313 Cr.P.C., and the appellant could not explain his

whereabouts at the time of occurrence of the incident. The case of the

prosecution has duly been supported by the medical evidence as well

as the other material collected by the Investigating Officer during the

investigation. The appeal lacks merit and is liable to be dismissed.

10. We have considered the rival submissions made by the learned

counsel for the parties and perused the record.

The case is to be decided keeping in mind that as all the seven

eye-witnesses turned hostile and none of them involved the appellant

in the crime, it remained a case of circumstantial evidence.

7 Legal Issues

Standard of Proof:

11. A criminal trial is not a fairy tale wherein one is free to give

flight to one's imagination and fantasy. Crime is an event in real life

and is the product of an interplay between different human emotions.

In arriving at a conclusion about the guilt of the accused charged with

the commission of a crime, the court has to judge the evidence by the

yardstick of probabilities, its intrinsic worth and the animus of

witnesses. Every case, in the final analysis, would have to depend

upon its own facts. The court must bear in mind that "human nature is

too willing, when faced with brutal crimes, to spin stories out of

strong suspicions." Though an offence may be gruesome and revolt

the human conscience, an accused can be convicted only on legal

evidence and not on surmises and conjecture. The law does not permit

the court to punish the accused on the basis of a moral conviction or

suspicion alone. "The burden of proof in a criminal trial never shifts

and it is always the burden of the prosecution to prove its case beyond

reasonable doubt on the basis of acceptable evidence." In fact, it is a

settled principle of criminal jurisprudence that the more serious the

offence, the stricter the degree of proof required, since a higher degree

8 of assurance is required to convict the accused. The fact that the

offence was committed in a very cruel and revolting manner may in

itself be a reason for scrutinizing the evidence more closely, lest the

shocking nature of the crime induce an instinctive reaction against

dispassionate judicial scrutiny of the facts and law. (Vide : Kashmira

Singh v. State of Madhya Pradesh, AIR 1952 SC 159; State of

Punjab v. Jagir Singh Baljit Singh & Anr., AIR 1973 SC 2407;

Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR 1981 SC

765; Mousam Singha Roy & Ors. v. State of West Bengal, (2003)

12 SCC 377; and Aloke Nath Dutta & Ors. v. State of West Bengal,

(2007) 12 SCC 230).

12. In Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957

SC 637, this Court observed :

"Considered as a whole the prosecution story may be true; but between `may be true' and `must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence [before an accused can be convicted]."

13. Thus, the law on the point may be summarised to the effect

that in a criminal trial involving a serious offence of a brutal nature,

9 the court should be wary of the fact that it is human instinct to react

adversely to the commission of the offence and make an effort to see

that such an instinctive reaction does not prejudice the accused in any

way. In a case where the offence alleged to have been committed is a

serious one, the prosecution must provide greater assurance to the

court that its case has been proved beyond reasonable doubt.

Circumstantial Evidence:

14. Though a conviction may be based solely on circumstantial

evidence, this is something that the court must bear in mind while

deciding a case involving the commission of a serious offence in a

gruesome manner. In Sharad Birdhichand Sarda v. State of

Maharashtra, AIR 1984 SC 1622, this Court observed that it is well

settled that the prosecution's case must stand or fall on its own legs

and cannot derive any strength from the weakness of the defence

put up by the accused. However, a false defence may be called into

aid only to lend assurance to the court where various links in the chain

of circumstantial evidence are in themselves complete. This Court

also discussed the nature, character and essential proof required in a

criminal case which rests on circumstantial evidence alone and held as

under:

10

(1) The circumstances from which the conclusion of

guilt is to be drawn should be fully established;

(2) The facts so established should be consistent only

with the hypothesis of the guilt of the accused, that is to

say, they should not be explainable on any other

hypothesis except that the accused is guilty;

(3) The circumstances should be of a conclusive nature

and tendency;

(4) They should exclude every possible hypothesis except

the one to be proved; and

(5) There must be a chain of evidence so complete as not

to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must

show that in all human probability the act must have been

done by the accused.

15. A similar view has been reiterated by this Court in State of

Uttar Pradesh v. Satish, (2005) 3 SCC 114; Krishnan v. State

represented by Inspector of Police, (2008) 15 SCC 430; Ramesh

Bhai & Anr. v. State of Rajasthan, (2009) 12 SCC 603;

11 Subramaniam v. State of Tamil Nadu & Anr., (2009) 14 SCC 415;

and Babu v. State of Kerala, JT 2010 (8) SC 560, observing that the

evidence produced by the prosecution should be of such a nature that

it makes the conviction of the accused sustainable.

Hostile Witness:

16. In State of Gujarat v. Anirudhsing, (1997) 6 SCC 514, this

Court observed as under :

"Every criminal trial is a voyage in quest of truth for public justice to punish the guilty and restore peace, stability and order in the society. Every citizen who has knowledge of the commission of cognizable offence has a duty to lay information before the police and cooperate with the investigating officer who is enjoined to collect the evidence and if necessary summon the witnesses to give evidence. He is further enjoined to adopt scientific and all fair means to unearth the real offender, lay the charge-sheet before the court competent to take cognizance of the offence. The charge-sheet needs to contain the facts constituting the offence/s charged. The accused is entitled to a fair trial. Every citizen who assists the investigation is further duty-bound to appear before the Court of Session or competent criminal court, tender his ocular evidence as a dutiful and truthful citizen to unfold the prosecution case as given in his statement. Any betrayal in that behalf is a step to destabilise social peace, order and progress."

12 17. The fact that the witness was declared hostile at the instance of

the public prosecutor and he was allowed to cross examine the witness

furnishes no justification for rejecting en bloc the evidence of the

witness. However, the court has to be very careful, as prima facie, a

witness who makes different statements at different times, has no

regard for the truth. His evidence has to be read and considered as a

whole with a view to find out whether any weight should be attached

to it. The court should be slow to act on the testimony of such a

witness; normally, it should look for corroboration to his testimony.

(Vide : State of Rajasthan v. Bhawani & Anr., (2003) 7 SCC 291)

18. This Court while deciding with the issue in Radha Mohan

Singh @ Lal Saheb & Ors. v. State of U.P., (2006) 2 SCC 450,

observed as under:

".....It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof..."

13 19. In Mahesh v. State of Maharashtra, (2008) 13 SCC 271, this

Court considered the value of the deposition of a hostile witness and

held as under:

".....If PW 1, the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW.1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution".

20. In Rajendra & Anr. v. State of Uttar Pradesh, (2009) 13

SCC 480, this Court observed that merely because a witness deviates

from his statement made in the FIR, his evidence cannot be held to be

totally unreliable.

21. This Court reiterated a similar view in Govindappa & Ors. v.

State of Karnataka, (2010) 6 SCC 533, observing that the deposition

of a hostile witness can be relied upon at least upto the extent he

supported the case of the prosecution.

14

22. In view of the above, it is evident that the evidence of a person

does not become effaced from the record merely because he has

turned hostile and his deposition must be examined more cautiously to

find out as to what extent he has supported the case of the prosecution.

Section 313 Cr.P.C.:

23. An accused can be questioned under Section 313 Cr.P.C. only

for the purpose of enabling him personally to explain any

circumstance appearing in the evidence against him. No matter how

weak or scanty the prosecution evidence is in regard to certain

incriminating material, it is the duty of the Court to examine the

accused and seek his explanation on incriminating material which has

surfaced against him. Section 313 Cr.P.C. is based on the fundamental

principle of fairness. The attention of the accused must specifically be

brought to inculpatory pieces of evidence to give him an opportunity

to offer an explanation if he chooses to do so. Therefore, the court is

under a legal obligation to put the incriminating circumstances before

the accused and solicit his response. This provision is mandatory in

nature and casts an imperative duty on the court and confers a

corresponding right on the accused to have an opportunity to offer an

explanation for such incriminatory material appearing against him.

15 Circumstances which were not put to the accused in his examination

under Section 313 Cr.P.C. cannot be used against him and have to be

excluded from consideration. (Vide Sharad Birdhichand (Supra);

and State of Maharashtra v. Sukhdev Singh & Anr., AIR 1992 SC

2100).

24. In S. Harnam Singh v. State (Delhi Admn.), AIR 1976 SC

2140, this Court held that non-indication of inculpatory material and

its relevant facts by the trial court to the accused adds to the

vulnerability of the prosecution case. The recording of the

statement of the accused under Section 313 Cr.P.C. is not a

purposeless exercise.

25. If any appellate Court or revisional court comes across the fact

that the trial Court had not put any question to an accused, even if it is

of a vital nature, such an omission alone should not result in the

setting aside of the conviction and sentence as an inevitable

consequence. An inadequate examination cannot be presumed to have

caused prejudice. Every error or omission in compliance of the

provisions of Section 313 Cr.P.C., does not necessarily vitiate trial.

16 Such errors fall within category of curable irregularities and the

question as to whether the trial is vitiated, in each case depends upon

the degree of error and upon whether prejudice has been or is likely to

have been caused to accused. Efforts should be made to undo or

correct the lapse. (Vide: Wasim Khan v. State of Uttar Pradesh,

AIR 1956 SC 400; Bhoor Singh & Anr. v. State of Punjab, AIR

1974 SC 1256; Labhchand Dhanpat Singh Jain v. State of

Maharashtra, AIR 1975 SC 182; State of Punjab v. Naib Din,

AIR 2001 SC 3955; and Parsuram Pandey & Ors. v. State of

Bihar, (2004) 13 SCC 189).

26. In Asraf Ali v. State of Assam, (2008) 16 SCC 328, this Court

observed:

"Section 313 of the Code casts a duty on the court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as a necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced."

17 27. In Shivaji Sahebrao Bobade & Anr. v. State of

Maharashtra, AIR 1973 SC 2622, this Court observed as under :

"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction." (Emphasis added).

28. In Ganesh Gogoi v. State of Assam, (2009) 7 SCC 404, this

Court relying upon its earlier decision in Basavaraj R. Patil & Ors.v.

State of Karnataka, (2000) 8 SCC 740, held that the provisions of

Section 313 Cr.P.C. are not meant to nail the accused to his

18 disadvantage but are meant for his benefit. The provisions are based

on the salutary principles of natural justice and the maxim "audi

alteram partem" has been enshrined in them. Therefore, an

examination under Section 313 Cr.P.C. has to be of utmost fairness.

29. In Shaikh Maqsood v. State of Maharashtra, (2009) 6 SCC

583; and Ranvir Yadav v. State of Bihar (2009) 6 SCC 595, this

Court held that it is the duty of the trial court to indicate incriminating

material to the accused. Section 313 Cr.P.C. is not an empty

formality. An improper examination/inadequate questioning under

Section 313 Cr.P.C. amounts to a serious lapse on the part of the trial

Court and is a ground for interference with the conviction.

30. In Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC

2420, this Court rejected the submission that as no question had been

put to the accused on motive, no motive for the commission of the

crime could be attributed to the accused, nor the same could be

reckoned as circumstance against him observing that it could not be

pointed out as to what in fact was the real prejudice caused to the

accused by omission to question the accused on the motive for the

19 crime. No material was placed before the court to show as to what

and in what manner the prejudice, if any, was caused to the accused.

More so, the accused/appellant was aware of accusation and charge

against him.

31. Thus, it is evident from the above that the provisions of Section

313 Cr.P.C make it obligatory for the court to question the accused on

the evidence and circumstances against him so as to offer the accused

an opportunity to explain the same. But, it would not be enough for

the accused to show that he has not been questioned or examined on a

particular circumstance, instead he must show that such non-

examination has actually and materially prejudiced him and has

resulted in the failure of justice. In other words, in the event of an

inadvertent omission on the part of the court to question the accused

on any incriminating circumstance cannot ipso facto vitiate the trial

unless it is shown that some material prejudice was caused to the

accused by the omission of the court.

Abscondance of Accused :

32. In Matru @ Girish Chandra v. The State of U.P., AIR 1971

SC 1050, this Court repelled the submissions made by the State that as

20 after commission of the offence the accused had been absconding,

therefore, the inference can be drawn that he was a guilty person,

observing as under:

"The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self- preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."

33. A similar view has been reiterated by this Court in Rahman v.

State of U.P., AIR 1972 SC 110; State of M.P. v. Paltan Mallah &

21 Ors., AIR 2005 SC 733; and Bipin Kumar Mondal v. State of West

Bengal, JT 2010 (7) SC 379.

34. Abscondance by a person against whom FIR has been lodged,

having an apprehension of being apprehended by the police, cannot be

said to be unnatural. Thus, mere abscondance by the appellant after

commission of the crime and remaining untraceable for a period of six

days itself cannot establish his guilt. Absconding by itself is not

conclusive proof of either of guilt or of a guilty conscience.

Present case:

35. The present case requires to be examined in light of the

aforesaid certain legal propositions.

The offence as alleged, has been committed by the appellant,

killing three persons and injuring three other persons who were

members of his own family. The alleged motive had been annoyance

because of the denial of his share in the immovable property by his

father, Hardayal Singh. An earlier incident had occurred in the

morning in the office of the Sub-Registrar at Kichcha and the offence

was allegedly committed by the appellant on the same day in the

evening at about 5.45 P.M. An FIR had been lodged promptly at 6.40

22 P.M. at Police Station: Rudrapur, which is located at 14 kms. away

from the place of occurrence. Complainant Ajit Singh (PW.1) in his

deposition, admitted his presence at the place of occurrence and also

that he had suffered injuries in the same incident, however, he had

denied the participation of the appellant in the crime. He had also

admitted that FIR (Ex. K-1) was lodged by him and the same had been

in his handwriting. He also admitted that in the document Ex. K-1,

he had stated that the appellant had committed the offence. On being

cross-examined by the public prosecutor, he furnished the explanation

for changing his stand, stating that he had named the appellant for the

killing of Inderjit Singh, Surender Singh and Saranjit Singh and

causing injuries to three others including the complainant at the behest

of the members of the crowd present there, whereas he had not seen

the appellant firing at the spot. He denied the suggestion that there

was a compromise in the family and because of that he had been

falsely deposing to save the appellant. However, he had admitted that

he was medically examined. His version in the FIR stands

corroborated by the medical evidence. The statement recorded by the

Investigating Officer under Section 161 Cr.P.C. has been in

consonance with his version made in the FIR.

23

36. Baljit Singh (PW.2) was also an injured witness, and was also

medically examined. The medical report corroborated the case of the

prosecution. He named the appellant responsible for the crime while

making a statement under Section 161 Cr.P.C., which was recorded by

the Investigating Officer, Rajan Tyagi(PW.8). However, he did not

support the case of the prosecution when he was examined in the

court. He admitted his presence on the spot and admitted that he had

suffered injuries. He also admitted that he was medically examined.

He admitted that there was a dispute in the family on the issue of

sharing the immovable property, but he deposed that the appellant did

not cause three deaths or injuries to three others. In his cross-

examination, he was confronted with his statement recorded under

Section 161 Cr.P.C., wherein he had named the appellant as the

person who had committed the crime. He had also denied the

suggestion that he was deposing falsely because of the compromise in

the family.

37. The other witnesses Gurmit Singh (PW.3), Satwant Singh

(PW.4), Rajinder Kumar (PW.5), Harpal Singh (PW.6) and Hira Lal

(PW.7) had even denied their presence on the spot. Harpal Singh

24 (PW.6) deposed that he had reached the place of occurrence after the

commission of the offence. None of the said eye-witnesses supported

the case of the prosecution in spite of the fact that all of them had

named the appellant as an assailant in their respective statements

made under Section 161 Cr.P.C.

38. Shri Rajan Tyagi, Investigating Officer (PW.8), had proved

the statements of all the witnesses recorded by him under Section 161

Cr.P.C. and deposed that it was the complainant, Ajit Singh (PW.1),

who had stated that the appellant had caused three deaths and injuries

to 3 other family members. He had admitted his signatures on the said

statements. He had further stated that Ajit Singh (PW.1) had pointed

towards the place of occurrence and on the basis of the same he

prepared the site plan, Ex. K-36. The said witness admitted that he

had recovered empty cartridges and other materials from the place of

occurrence including the piece of cloth, blood soiled earth and

ordinary soil. He had supported the postmortem report, that

postmortems of the dead bodies were conducted on 27th April, 2000,

which was recorded in the case diary. He has further deposed that at

1.30 P.M. on 4th May, 2000 at the instance of a secret informer, the

25 appellant, Paramjeet Singh, was arrested and the appellant had

confessed his crime and had told him that the appellant had deposited

his licensed gun with M/s J.B. Sales Arms & Ammunition Dealer,

Railway Station, Rampur. The Investigating Officer (PW.8) went

alongwith the appellant and other police personnel to Rampur railway

station for the recovery of the gun used in the offence. The appellant,

Paramjeet Singh, had pointed out, from the distance of about 90 paces,

the agency of the arms dealer. They alighted from the jeep and the

appellant walked towards it and got recovered the gun which was

lying in an almirah of the said shop and identified the same. So, it

was the appellant at whose behest the gun was recovered. In spite of

the extensive cross examination of Shri Rajan Tyagi, Investigating

Officer (PW.8), the defence could not make out anything which may

discredit his deposition.

39. The case should be examined from another angle also. The

postmortem reports of 3 persons, who died in the incident, are part of

the record and speak for themselves.

26 Postmortem Reports :

I. The postmortem report of Sharanjeet Singh (Ex.Ka.27) reads

as under:

1) Lacerated wound 1 cm x 1 cm circular, Margins inverted over forehead in between eyebrows.

2) Lacerated wound 1 cm x 1 cm right side chest, 6 cm above right nipple.

3) Lacerated wound 1 cm x 1 cm right side of lower abdomen 6 cm lateral to umbilicus, circular, margins inverted.

4) Lacerated wound 1 cm x 1 cm over right shoulder, margins inverted, circular.

5) Multiple firearm injuries measuring 1 cm x 1 cm in an area of 12 cm x 16 cm over middle of back, margins inverted, cavity deep, pellets and plastic cork recovered (wound of entering).

II. The postmortem report of Surender Singh (Ex. Ka. 28) reads as

under:

1) Lacerated would 12 cm x 14 cm right side abdomen 6 cm above and lateral to umbilicus and 10 cm below right nipple, margins crushed and multiple firearm injuries measuring 1 cm x 1 cm around the lacerated wound, margins inverted, muscle deep.

27 2) Multiple lacerated wounds measuring 1 cm x 1 cm over left chest around nipple some are cavity deep and some skin deep.

3) Lacerated wound 10 cm x 6 cm left abdomen lateral side.

III. The postmortem report of Inderjeet Singh (Ex.Ka. 29) reads as

under:

1) Lacerated wound 1 cm x 1.5 cm left side chest oval in shape, margins inverted 6 cm above left nipple, cavity deep.

2) Two circular lacerated wound right side chest 6 cm below right nipple, skin deep, margins inverted.

3) Three lacerated wound in an area of 8 cm x 6 cm over right shoulder joint, skin deep, margins inverted.

4) Three lacerated wound 1 cm x 1 cm circular in shape over right lower abdomen 6 cm lateral to umbilicus.

5) Lacerated wound 3 cm x 3.5 cm oval in shape margins averted and irregular over back of chest, left side, track corresponding to injury No. 1, injury No. 5 is wound of exit. R.M. present both upper and lower limbs.

40. Injury Reports :

I. Ajit Singh (PW.1) was medically examined and his injuries'

report (Ex.Ka.37) reads as under:

28 i) Lacerated wound of .3cm x .3cm on the back side of right hand, skin deep. Oozing of blood present.

ii) Multiple firearm wound of entry size .3 x .3cm in the area of 18cm x 9 cm on middle part of the left thigh on the outer side. Black coloured. Jean pant is also torn on the same places. Margins are charred and indication is present around them. Advised X-ray of left thigh.

iii) Multiple firearm wound of entry on the medial and anterior aspect of right thigh, some part of the Jeans is also torn on the same places over the injuries. Margins are charred and indication is present around them. Oozing of blood also present size 13cm x .3cm. Advised X-ray of the right thigh.

II. The injuries' report of Baljit Singh, (PW.2) (Ex.Ka.38) reads as under:

i) Lacerated wound over the right side of face and neck involving the lower jaw and right angle of lip and tongue.

ii) Excessive bleeding through the wound.

iii) Irregular margin defect in the chin cut being received on mandible.

iv) Right lower palpable throughout the wound.

Opinion : The above injuries were caused by fire arm. Fresh.

29 III. The medical examination report of Shri Hardayal Singh

(Ex.Ka.36) is as under:

i) Punctured wound 4 mn x 4 round in the left side of temporal area 3 cm above the left extended ear. Bleeding. X-

ray advised.

ii) Punctured wound = cm x = cm round with level of 1st thoracic vertebra. Bleeding. X-ray advised.

iii) Punctured wound = cm x = cm on left scapula.

Bleeding. X-ray advised.

It is evident from the above that the appellant had caused a very large number of injuries.

41. The witnesses i.e. Ajit Singh (PW.1) and Baljit Singh (PW.2)

in their respective depositions have admitted their presence at the

place of incident and admitted to suffering those injuries. In their

statements under Section 161 Cr.P.C. they have also admitted that

they suffered the aforesaid injuries at the hands of the appellant. It

was at a later stage that they have denied any role of the appellant.

Their statements to that effect are not trustworthy for the simple

reason that they failed to offer any explanation for why they assigned

the said role to the appellant in their statements under Section 161

Cr.P.C. and why the appellant had been named by Ajit Singh (PW.1)

30 while lodging the FIR. It is relevant to note that the witnesses,

namely, Ajit Singh (PW.1) and Baljit Singh (PW.2) have also deposed

that after the incident, a Panchayat was convened and it pardoned the

appellant. The version of convening the Panchayat and grant of

pardon to the appellant has duly been supported by Gurmit Singh

(PW.3) and Satwant Singh (PW.4).

Gurmit Singh (PW.3) deposed:

".....it is correct that accused is my cousin. The matter had been compromised in the Panchayat".

Satwant Singh (PW.4) deposed:

"....matter had been compromised in the Panchayat. Panchayat had pardoned Pamma accused".

It is pertinent to mention here that injured Hardayal Singh could

not be examined as he died of cancer during the trial.

42. It is evident from the above that the view taken by the courts

below, that the eye-witnesses turned hostile because of the decision

taken in the Panchayat, pardoning the appellant, does not require any

interference.

31 It is also evident from the above that the said eye-witnesses

have no regard for the truth and concealed the material facts from the

court only in order to protect the appellant, for the reasons best known

to them. Such an unwarranted attitude on the part of the witnesses

disentitles any benefit to the appellant, who has committed a heinous

crime. The crime had been committed against the society/State and

not only against the family and therefore, the pardon accorded by the

family and Panchayat has no significance in such a heinous crime.

43. It has been canvassed on behalf of the appellant that the trial

Court committed an error relying upon various factors/incriminating

materials which were not pointed out to the appellant while recording

his statement under Section 313 Cr.P.C. Such material had been in

respect of (i) recovery of gun from arms dealer at Rampur; (ii) motive;

(iii) abscondance of the appellant; and (iv) compromise in Panchayat

which pardoned the appellant.

44. So far as the circumstance of recovery of gun from the arms

dealer at Rampur is concerned, the trial court had put a question to the

32 appellant and he has answered the same. The question and answer

read as under:

"Q. It has come in evidence that the Investigating Officer prepared a site plan of the place of occurrence which is Exh.K-26. Your licenced gun 17466/96 was recovered at your instance from Rampur and the Recovery Memo was prepared which is K-39, the site plan of the place of recovery is Exh.K-45. The forensic science laboratory report in respect of the case property is Exh. K-44, what have you to say?

Ans. The gun was not recovered at my instance. This number 17466/96 is the number of my licenced gun. I had deposited this gun with a dealer at Rampur. The police has concocted the story of recovery."

It appears that the number of one of the exhibits had wrongly been

pointed out as K-44, though it was Exh. K-46. But it is not a case

where no question was put to the accused on the said circumstance.

45. So far as the issue of motive is concerned, the case is squarely

covered by the judgment of this court in Suresh Chandra Bahri

(supra). Therefore, it does not require any further elaborate discussion.

More so, if motive is proved that would supply a link in the chain of

circumstantial evidence but the absence thereof cannot be a ground to

reject the prosecution case. (Vide: State of Gujarat v. Anirudhsing

[supra]) 33

46. The third circumstance i.e. the abscondance of the appellant has

also been taken into consideration by the courts below. We have

clarified that it cannot be a circumstance against the appellant. Thus,

not putting a question on this particular circumstance to the appellant

remained inconsequential. The courts below had considered that the

appellant could not furnish any explanation for his absence for about

six days. Appellant failed to raise any positive defence and answered

all the questions put to him in an evasive manner. Such a view is

permissible being in consonance with the law laid down by this Court

in Raj Kumar Prasad Tamarkar v. State of Bihar, (2007) 10 SCC

433; and Amarsingh Munnasingh Suryawanshi v. State of

Maharashtra, (2007) 15 SCC 455.

47. So far as the fourth circumstance i.e. the compromise in

Panchayat and the pardoning of the appellant is concerned, it cannot

be labelled as a circumstance charging the appellant with a crime. By

no stretch of the imagination can it be held that the said circumstance

involved any accusation towards the appellant. In fact, in cannot be

termed as incriminating material, proving the offence against the

34 appellant, rather it had been a circumstance due to which all the seven

eye-witnesses turned hostile.

Be that as it may, we are of the considered opinion that not

putting questions regarding anyone of the aforesaid circumstances can

not be held to be a serious irregularity inasmuch as the same may

vitiate the conviction. More so, in the present case, it has not

materially prejudiced the appellant nor has it resulted in a miscarriage

of justice.

48. If the case is considered in the totality of the circumstances,

also taking into consideration the gravity of the charges, the appellant

had killed his real brother, Inderjit Singh and his nephews, Surender

Singh and Saranjit Singh and injured his father Hardayal Singh and

nephews Ajit Singh (PW.1) and Baljit Singh (PW.2) in broad day

light. The FIR had been lodged promptly, naming the appellant as

the person who committed the offence. All the eye-witnesses,

including the injured witnesses, attributed the commission of the

offence only to the appellant in their statements under Section 161

Cr.P.C. It is difficult to imagine that the complainant and the eye-

witnesses had all falsely named the appellant as being the person

responsible for the offence at the initial stage itself.

35 Thus, we do not see any cogent reasons to interfere with the

concurrent findings of fact by the courts below. The appeal lacks

merit and is hereby dismissed.

..................................J. (P. SATHASIVAM)

......

..............................J. New Delhi, (Dr. B.S. CHAUHAN) September 27, 2010

36