Nishan Singh v. State of Punjab , (SC) BS140255
SUPREME COURT OF INDIA

Before:- S.B. Sinha and Harjit Singh Bedi, JJ.

Criminal Appeal No. 325 of 2007. D/d. 7.3.2008.

Nishan Singh - Appellant

Versus

State of Punjab - Respondent

WITH Criminal Appeal No. 326 of 2007 and Criminal Appeal No. 467 of 2007.

For the Appellant :- Uma Datta and Ms. Manjeet Chawla, Advocates.

For the Respondent :- Kuldip Singh, R.K. Pandey and Sanjay Katyal, Advocates.

A. Indian Penal Code, Section 302 - Evidence Act, Section 59 - Criminal trial - Acquittal of one accused because no overt act was attributed to him by P.Ws. - It itself would not lead to the conclusion that the entire prosecution case was false.

[Para 35]

B. Discrepancies in statement of witnesses - Discrepancies which do not shake the basic version of the prosecution case may be discarded. 1988 Supp. 1 SCC 241 relied.

[Para 35]

C. Indian Penal Code, Sections 34 and 302 - Common intention - Whether common intention was formed for commission of an offence or not and it depends upon the fact of each case.

[Para 32]

D. Indian Penal Code, Sections 302 and 34 - Intention to kill - One of the accused was unarmed, but he snatched a knife from co-accused brutally killed the deceased - 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. JT 2002(10) SC 157 and 2007(14) SCALE 656 relied.

[Para 37]

Cases Referred :-

Shashikant Singh v. Tarkeshwar Singh, 2002(3) RCR (Criminal) 191 : [(2002)3 SCR 400].

State of Madhya Pradesh v. Bhooraji, 2001(4) RCR (Criminal) 40 : [(2001)7 SCC 679].

Dr. M.C. Sulkunte v. State of Mysore [AIR 1971 Supreme Court 508].

Central Bureau of Investigation v. V.K. Sehgal, 1999(4) RCR (Criminal) 615 : (1999)8 SCC 501.

State of Haryana v. Ram Singh, 2002(1) RCR (Criminal) 443 : [2002(1) SCR 208].

Prem Sagar v. Dharambir [(2004)1 SCC 113].

Suresh v. State of U.P., 2001(2) RCR (Criminal) 78 : [(2001)3 SCC 673].

Rotash v. State of Rajasthan, 2007(1) RCR (Criminal) 870 : 2007(1) RAJ 544 : 2006(13) SCALE 186.

Sukhdev Yadav v. State of Bihar, 2001(4) RCR (Criminal) 257 : [(2001)8 SCC 86].

Appabhai v. State of Gujarat [1988 Supp. I SCC 241].

Harendra Nath Mishra v. State of Bihar [JT 2002(10) SC 157].

Ramashish Yadav v. State of Bihar, 1999(4) RCR (Criminal) 171 : [(1999)8 SCC 555].

Gajjan Singh v. State of Punjab and Pandurang [(1976)3 SCC 391].

Tukia and Bhillia v. State of Hyderabad [(1955)1 SCR 1083].

Virsa Singh v. State of Punjab [AIR 1958 Supreme Court 465].

Hari Yadav v. State of Bihar [2007(14) SCALE 656].

JUDGMENT

S.B. Sinha, J. - These appeals arising out of a common judgment.

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.

4. The said incident is the subject matter of Criminal Appeal No. 326 of 2007.

5. 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. 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.

7. 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 PW11.

8. Nishan Singh was charged for commission of an offence under Sections 302 and 307 of Indian Penal Code; whereas Pargat Singh-I was charged under Section 307 and 302/34 Indian Penal Code. 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 Indian Penal Code, 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 Indian Penal Code. Major Singh was acquitted of the charges framed against him.

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 PW1 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 :

15. Mrs. Manjeet Chawla, Ld. Counsel appearing on behalf of Rachhpal Singh, the appellant in Criminal Appeal No. 326 of 2007, submitted :

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

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.

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) RCR (Criminal) 191 : [(2002)3 SCR 400]. It was held therein :

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 Criminal Procedure Code, 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 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(4) RCR (Criminal) 40 : [(2001)7 SCC 679], wherein, inter alia, it was held that :

In Dr. M.C. Sulkunte v. State of Mysore [AIR 1971 Supreme Court 508], this Court held :

22. In Central Bureau of Investigation v. V.K. Sehgal & Anr., 1999(4) RCR (Criminal) 615 : [(1999)8 SCC 501] it was held :

It was observed :

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

{See also State of Haryana v. Ram Singh, 2002(1) RCR (Criminal) 443 : [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.

24. 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 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 deceased.

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.

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 PW4 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. DW2, 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 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(2) RCR (Criminal) 78 : [(2001)3 SCC 673] followed in Rotash v. State of Rajasthan, 2007(1) RCR (Criminal) 870 : 2007(1) RAJ 544 : [2006(13) SCALE 186]}.

Reliance has also been placed on State of Haryana v. Ram Singh [(2002)1 SCR 208] wherein this Court held :

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 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(4) RCR (Criminal) 257 : [(2001)8 SCC 86], this Court held :

It was further held by this Court while relying upon Appabhai & Anr. v. State of Gujarat [1988 Supp. I 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 following injuries have been shown in the autopsy report :

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-11. Dilbagh Singh saw the entire occurrence. He examined himself as PW4. 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. v. State of Bihar [JT 2002(10) SC 157] relying upon Suresh (supra); Ramashish Yadav v. State of Bihar, 1999(4) RCR (Criminal) 171 : [(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 Supreme Court 465] wherein it was opined :

{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.

Appeals dismissed.