Sukhdeep Singh @ Deep Singh vs State Of Uttar Pradesh & Anr

O R D E R

This appeal by way of special leave is directed

against the judgment of the Allahabad High Court whereby

the judgment of acquittal of the Sessions Judge has been

reversed and the accused appellant has been convicted and

sentenced to imprisonment for life etc. under Sec.302 of

the IPC.

The facts of the prosecution story are as under:

The appellant Sukhdeep Singh and the acquitted co-

accused Raje were friends whereas Gurbachan Singh (PW.2)

the first informant and Karam Singh were brothers.

Balvendra Singh, brother of Sukhdeep Singh aforesaid, had

some dispute with one Kashmir Singh against whom some

Criminal and Civil proceedings were also going on. As per

the prosecution story about a month before the incident

the two accused had come to the house of Gurbachan Singh

and had threatened Karam Singh to leave the company of

Kashmir Singh, failing which they would kill him. As this

threat had no effect on Karam Singh, the two accused

arrived at his home at about 6.00 a.m. on 5th June, 1980 and -2-

whereas Sukhdeep Singh was carrying a rifle belonging to

Balvendra Singh, Raje was carrying a shotgun. It appears

that a compromise was proposed even at that time and to

ensure that it would not be violated the accused suggested

that they go to the Gurudwara to take an oath before the

Guru Granth Sahib. On this assertion Gurbachan Singh and

Karam Singh accompanied by the accused left for the

Gurudwara and along the way associated Mahender Singh and

Darshan Singh and also told them as to what had transpired

and the terms of the compromise. As the group reached the

crossing of village Nateura, Gurbachan Singh, Darshan

Singh and Mahender Singh who were following the two

accused and Karam Singh who had gone swiftly ahead, Raje suddenly caught hold of Karam Singh and Sukhdeep Singh

fired a shot which struck him in the stomach. Gurbachan

Singh and the others raised an alarm on which Sukhdeep

Singh fired another shot towards them without hitting

anybody. The accused then ran away with their weapons.

One Ninder Singh (PW.3) who was working in a nearby field

also saw the incident. Gurbachan Singh and the others also

found that Karam Singh had died instantaneously on account

of the gun shot injury suffered by him. Gurbachan Singh

also rushed to the police station which was about 9 miles

away and recorded the FIR at about 1.30 p.m. ASI Ragghu

Singh (PW.7) reached the murder site, recorded the inquest

report and sent the dead body for its post-mortem

examination. The post-mortem examination was held on the -3-

next day at about 4.15 p.m. by Dr. C.P.Srivastava (PW.1).

On the completion of the investigation the two accused were

put to trial on a charge of murder. The prosecution relied

primarily on the statements of Gurbachan Singh (PW.2)

Ninder Singh (PW.3) and Mahender Singh (PW.5) the alleged

eye witnesses to the incident as also on the evidence of

PW.4. Ram Asray Pandey the expert from the Forensic Science

Laboratory and Dr. C.P.Srivastava (PW.1) the Doctor

concerned.

The trial court on an appreciation of the evidence

held that the statement of Gurbachan Singh (PW.2) was at variance with the medical testimony given by Dr. C.P.

Srivastava (PW.1) in as much that the direction of the

injury suffered by Karam Singh falsified the ocular

evidence of Gurbachan Singh. The Court also held that the

evidence of the recovery of the empty shell from the place

of incident appeared to be a bit of padding by the police

as the weapon that had been recovered from Sukhdeep Singh

accused was of .315 bore whereas the cartridge that had

been recovered at the time of the inspection of site by

ASI Ragghu Singh on the day of the murder, was of .303 bore

and it was thus impossible to believe that this cartridge

could have been fired from the weapon in question. It was

also observed that as .303 bore was a prohibited bore

weapon, cartridges of this category were not available in the market and the prosecution had, failed to

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explain as to the source from where this cartridge had been

procured. The Court further held that before the incident

about a month earlier when the accused had advised Karam

Singh to leave the company of Kashmir Singh was also not

proved and as such the motive itself was not acceptable.

Having held as above, the trial Court acquitted both the

accused.

The State of U.P., thereafter, filed an appeal

before the Allahabad High Court. The High Court maintained the acquittal of Raje but reversed the acquittal of the

present appellant Sukhdeep Singh. The High Court held that

there was no reason to disbelieve the eye witnesses (PW.2

and PW.3) one the brother and the other a close relative of

the deceased. The High Court, however, confirmed the

finding of the trial Court that Ninder Singh's (PW.3)

statement could not be relied upon. The High Court further

held that the medical evidence clearly supported the ocular

evidence, as the anomaly pointed out by the trial Court

with regard to the upward direction of the wound in the

dead body had been explained by Gurbachan Singh (PW.2) in

the course of his evidence. The High Court also observed

that Ram Asray Pandey (PW.4) had clarified that though the

cartridge recovered from the place of incident was of .303 bore and the weapon was of .315 bore, yet on testing he had

found that a cartridge of this calibre could be fired from

the weapon in question and as the empty shell had specific

and distinctive markings, it had in fact been found the

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alleged murder weapon. The High Court, therefore, conscious

of the fact that in an appeal against acquittal,

interference should be minimal and that too in case of

perversity of the judgment of the trial Court, held that

the finding were indeed perverse and accordingly reversed

the judgment of acquittal.

Mr. Rohan Thawani, the learned counsel for the appellant has first and foremost pointed out that it was

well-settled that interference by the High Court in an

appeal against acquittal was called for only in special

circumstances and that too in a case where the judgment of

the trial Court was completely per-verse and could not have

been rendered on the evidence and if the trial court had

given good reasons, the High Court in the belief that a

different view was also possible, should not have

interfered in the matter. He has also pointed out that the

medical evidence completely belied the evidence of

Gurbachan Singh and Mahender Singh in as much that they had

not been able to explain as to manner in which the injury

had been suffered by Karam Singh or the direction in which

the wound had been caused as Dr. C.P. Srivastava's (PW.1) testimony had completely falsified their evidence. He has

also reiterated that the trial Court had on a very correct

appreciation of the evidence concluded that the recovery of

the rifle and the empty shell of .303 bore was a concocted

piece of evidence at the instance of an over-zealous police

officer.

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Mr. Pramod Swarup, the learned counsel for the State

of U.P. has, however, argued very vehemently in support of

the judgment.

Undoubtedly, Mr. Rohan Thawani's broad submission

with regard to the scope of the High Court's interference in an appeal against acquittal cannot be faulted but we are

of the opinion that trial Court had clearly misread the

evidence while discarding the evidence of Gurbachan Singh

and Mahender Singh. It has to be borne in mind that

Gurbachan Singh was the brother of the deceased and

Mahender Singh was his brother-in-law. To our mind,

therefore, it would be difficult to accept that they would

leave out the true assailants and to involve some other

persons. We also find that the spontaneity of the FIR

supports the prosecution story. Admittedly the incident had

happened at about 9.00 a.m. on 5th June, 1980, and the FIR

had been recorded at the instance of PW.2 Gurbachan Singh

by 1.30 p.m. at the police station which was 9 miles away.

Gurbachan Singh has testified that it had not been easy for him to reach the police station as he had to walk a

part of the distance before he could board a bus. We also

notice that no challenge has been to made the promptness in

the lodging of the FIR. We also see from a reading of the

statements of Gurbachan Singh and Mahender Singh that not a

single material contradiction had been pointed out in the

evidence in court vis-a-vis their statements under Sec.161

Cr.P.C. meaning thereby that the version given by them was

consistent from the very first day.

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We are also of the opinion that the medical evidence

far from dislodging the prosecution story fully supports

the same. Doctor C.P. Srivastava found the following injuries on the dead body:

1 "1. The wound of collate shot was (mix 8 cm) and it was on the upper portion of the valley about 3 cm left near the canter line. It was out side any black spot or parched (jhul san) has not been found. this would was in the stomach on the back side going on the upper side.

2 3 2. The wound of bullet passing was 2 cm x 2 cm on the right side of the back on the lower part of shoulder this wound was mixing with wound number one."

4 The Doctor also opined that the gunshot injury could

have been caused by the firing of a shot from a distance of

more than six feet on the premise that there was no charring or burning of the skin.

Mr. Rohan Thawani has, however, placed reliance on

the following part of the cross-examination:

"The fire must have made on the left front side of the deceased. The duration of death which I have told can be changed by 5 hours on

both side. During summer season the rigor mortis complete pass of within 36 hours. The

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possibility of the death of deceased is in the morning at 5 or 6' O clock on 5/6/80 seeing the duration of the wound No.1 of the deceased the possibility is that the fire was made when the deceased was lying or fell lying. If the deceased and the killer both stand on the same level than the deceased must have not received these wounds because the killer must have the lower level than the deceased and the barrel of the gun must have been on the lower level."

(Note: The paragraphs quoted above have been taken verbatim from the Paper Book.)

We are of the opinion that the opinion rendered by

the Doctor does not reflect Mr. Thawani's submission. It

bears notice that it is not the suggestion of the defence

at any stage that the deceased had been shot after he had

fallen to the ground but on the contrary the positive

prosecution version is that the incident had happened after Karam Singh had been held by Raje in his grip.

We find, therefore, that the very basis of the

argument raised by the learned counsel on the basis of the

statement of Dr. C.P. Srivastava that the injuries could

not have been caused while the deceased was in a standing

posture is not borne out from the cross examination. Even

otherwise, we believe that it would be impossible for any

witness to give a categorical statement as to the posture

that the deceased or the assailants were holding at the

time when the firing incident happened. The trial Court

was not

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to be a case of the misreading of the evidence.

Mr. Rohan Thawani has, however, placed reliance on

Maniram vs. State of U.P. (1994 (suppl.) 2 SCC 289) and

State of U.P. Vs. Ram Bahadur and Others (2004 (9) SCC

310) to contend that if the medical evidence contradicted

the ocular evidence account, the prosecution must fail.

The observations relied upon by the learned counsel are,

however, required to be examined in the peculiar facts of

each case. We have gone through the facts of the cited

cases and find that they are not applicable to the facts of

the present one. Moreover, in a criminal matter based on

appreciation of evidence, it would be a very dangerous doctrine to rely on decisions taken on facts as binding

precedents as all such matters have to be evaluated on an

appreciation of the evidence which has come before the

Court in that very case.

We also notice that the prosecution has explained

the confusion, if any, with regard to the cartridge and

the weapon. Dr. Ram Asray Pandey on testing in the

laboratory found that a .303 bore cartridge was compatible

with firing from a .315 bore rifle and that the crime

cartridge had in fact been fired from the crime weapon as

the distinctive characteristics matching the two were

available on Forensic examination. The mere fact,

therefore, that the trial Court was of the opinion that as

the prosecution had not -10-

been explained as to the source of the .303 cartridge, was

a matter of no consequence as it is common knowledge that

prohibited bore weapons and cartridges are readily

available for those who seek them out. We thus see no cause

for interference in this matter.

The appeal is dismissed accordingly.

.................J. (HARJIT SINGH BEDI) .................J. (T.S. THAKUR) New Delhi, December 1, 2009.