SUPREME COURT OF INDIA
(PUNJAB & HARYANA HIGH COURT)
Hon’ble Judges:P.Jagmohan Reddy and D.G.Palekar JJ.
Amrik Singh Versus State Of Punjab
Criminal Appeal No. 62 of 1969 ; *J.Date :- DECEMBER 17, 1971
CODE OF CRIMINAL PROCEDURE, 1898
INDIAN PENAL CODE, 1860 Section – 34 , 148 , 149 , 302 , 307 , 324
Code of Criminal Procedure, 1898 – Indian Penal Code, 1860 – S. 34, 148, 149, 302, 307, 324 – common intention – five accused persons tried for murder and rioting – recovery of weapons from accused – acquitted by Sessions Court – on appeal, convicted by High Court – held, there is no evidence to show any prior concert or preparation or a common intention of all in furtherance of which several acts were committed – in circumstances each one of appellants is liable for his own acts – conclusions drawn by Sessions Judge was fully justified – convictions and sentences awarded by High Court set aside and those of Sessions Judge substituted – appeal allowed.
Cited in :
- (Referred To) :- Virendra Singh Vs. State Of Madhya Pradesh, 2010 (8) SCC 407 : 2010 (8) Scale 27 : 2010 (9) SCR 772 : JT 2010 (8) SC 319 : 2011 AIR SCW 31 : 2010 (6) Supreme 795 : 2010 (3) SCC(Cri) 893 : 2011 CrLJ 952 : 2010 (94) AIC 246 : 2012 (1) RCR(Cri) 497 : 2010 (5) SLT 781 : 2010 (4) Crimes 136 : 2012 (1) RecApexJ 8 : 2010 (4) EastCrC(SC) 13 : 2010 (2) WLC 544 : 2011 (1) ALD(Cri) 464 : 2010 AllMR(Cri) 3955 : 2011 (1) CalCriLR 106 : AIR 2011 SC 1934 : 2011 (Supp) CutLT(Cri) 60 : 2011 (1) JLJ 37 : 2010 JX(SC) 352 : 2010 AIJEL_SC 48647
- (Referred To) :- Parasa Raja Manikyala Rao Vs. State Of Andhra Pradesh, 2003 (12) SCC 306 : AIR 2004 SC 132 : 2003 (8) Scale 677 : 2003 (Supp4) SCR 756 : JT 2003 (Supp2) SC 474 : 2003 AIR SCW 5729 : 2003 (7) Supreme 509 : 2004 (Supp) SCC(Cri) 396 : 2004 CrLJ 390 : 2003 (12) AIC 814 : 2003 (Supp) CrLR(SC) 352 : 2003 (6) SLT 660 : 2003 (4) Crimes 375 : 2004 (1) EastCrC(SC) 121 : 2004 (1) AICLR 184 : 2003 (2) ACrC 1117 : 2004 (1) SRJ 190 : 2003 (2) WLC 735 : 2003 (4) CurCriR 285 : 2004 MLJ(Cri) 1 : 2004 AllMR(Cri) 267 : 2004 SCCriR 699 : 2004 (1) AllCriLR 519 : 2004 (27) OrissaCriR 206 : 2003 (12) IndLD 324 : 2003 AIJEL_SC 20741
- (Referred To) :- Aizaz Vs. State Of Uttar Pradesh, 2008 (12) SCC 198 : AIR 2008 SC 446 : 2008 (11) Scale 465 : 2008 (12) SCR 13 : 2008 AIR SCW 5765 : 2008 (6) Supreme 268 : 2009 (2) SCC(Cri) 777 : 2008 CrLJ 4374 : 2008 CrLR(SC) 725 : 2008 (3) Crimes 352 : 2009 (4) EastCrC(SC) 80 : 2009 (1) ACrC 413 : 2008 (4) JCR(SC) 138 : 2009 (1) CriCC 629 : 2008 (6) AllLJ 228 : 2009 (1) ALT(Cri)(SC) 262 : 2008 (4) AD(Cr) 502 : 2008 JX(SC) 1512 : 2008 AIJEL_SC 42000
Equivalent Citation(s): 1972 (4) SCC 65 : 1972 UJ 361
P.Jagmohan Reddy, J.
1 This appeal is by special leave against the judgement of the High Court of Punjab and Haryana allowing the appeal of the State against the acquittal of the appellants under Section 302 read with Section 149 and convicting them of the said offence read with Section 34 I.P.C. and sentencing each of them to imprisonment for life. Five accused who are all brothers were tried before the Sessions Judge, Patiala for offences under Sections 302, 307, 324 read with Section 149 I.P.C. as also under Section 148 of the said Code. The Sessions Judge convicted Jagdev Singh first accused of offence under Section 302 and sentenced him to death subject to confirmation by the High Court. He also convicted him of the offence under Section 307 and sentenced him to three years rigorous imprisonment and a fine of Rs. 500/- in default to undergo further rigorous imprisonment for six months. The second, fourth and fifth accused Gurbux Singh, Darshan Singh and Kuldip Singh respectively were convicted for offences under Section 324 and each of them sentenced to rigorous imprisonment of one year and a fine of Rs. 250/- and in default for a further period of three months rigorous imprisonment. Amrik Singh third accused was convicted under Section 323 and sentenced to six months rigorous imprisonment and a fine of Rs. 150/- and in default of payment of fine further rigorous imprisonment for 11/2 months.
2 The reference and appeal of Jagdev Singh were dismissed and the conviction and sentence of death was confirmed by the High Court. The appeal by the State insofar as Gurbux Singh was concerned was dismissed and his appeal was allowed with the result that even his conviction and sentence under Section 324 I.P.C. was set aside and he was acquitted of all the charges. As already stated, the appeal of the State in respect of the other three accused was allowed. The special leave petition of Jagdev Singh against his conviction under S.302 and the sentence of death was dismissed by this Court on March 20, 1969, so that this appeal is only concerned with the three accused Nos. 3, 4 and 5, namely Amrik Singh, Darshan Singh and Kuldip Singh.
3 The prosecution case was that the five accused, the deceased Gurdev Singh and Sarmukh Singh are all brothers and reside in village Rauni Kalan, Gurmel Singh, P.W. 5 and Rup Singh, P.W. 8 who is family friend of Gurmel Singh also reside in Rauni Kalan. It appears that six or seven months prior to the occurrence which took place on October 16, 1967, Rup Singh had filed a complaint under Section 107 of the Code of Criminal Procedure against all the appellants out of whom security proceedings were instituted only against accused Gurbux Singh and Kuldip Singh and they were both bound over to keep the peace. In those proceedings Gurmel Singh and his uncle Thamman Singh who was living with Gurmel Singh had appeared as prosecution witnesses which fact, it is alleged, gave rise to ill feeling between Rup Singh, and Gurmel Singh’s families on the one hand and appellants’ on the other. About a month prior to the occurrence the deceased Gurdev Singh had come home on annual leave from the army where he was working. It is the case of the prosecution that on the day of the incident Bachan Singh P.W. 6 who is the maternal uncle of Gurmel Singh, and who is a resident of village Berma in Ludhiana District which was about 12 miles from Rauni Kalan came to that village at about 6 P.M. in order to see his nephew Gurdev Singh the deceased. After he had spent about an hour with his nephew he and the deceased Gurdev Singh accompanied by Gurmel Singh went to the house of Rup Singh for the purpose of purchasing a buffalo which Rup Singh wanted to sell. At that time Gurmel Singh is said to have a lathi with him while Bachan Singh and the deceased had no kind of weapon in their hands. When all these persons reached the house of Rup Singh they found him sitting near his door and started talking to him. At that time Mehma Singh P.W. 7 – father of Rup Singh – was in the house. About 7 P.M. accused Jagdev Singh with a country made 12 bore pistol in his dub which is said to be tied round the waist holding the dhoti. Kuldip Singh. Gurbux Singh and Darshan Singh each having a barchha in his hands and Amrik Singh with a lathi, came there. It is said that Jagdev Singh raised a Lalkara that he would not allow them, namely, Gurmel Singh and others, to escape and would teach them a lesson for appearing in the security proceedings as witnesses. Immediately thereafter Darshan Singh appellant gave a barchha blow near the right ear and Amrik Singh appellant a lathi blow on the left thigh of Gurmel Singh. Rup Singh ran to his house and brought a barchha. Seeing all this Gurdev Singh the deceased intervened saying that no one should quarrel and while he was busy interceding Jagdev Singh appellant took out his pistol from the dub and fired a shot at Gurdev Singh deceased hitting him in the stomach and the right thigh. On receiving these injuries Gurdev Singh fell down and died soon thereafter. Rup Singh who, had brought the barchha gave a blow on the left shoulder of Kuldip Singh far self-defence. Jagdev Singh then fired his pistol in quick succession injuring Rup Singh near the right ear and the right-arm and Mehma Singh who had come out of his house on hearing the noise was injured on the right side of the chest. Even after receiving these injuries Rup Singh used his barchha against Jagdev Singh who received two injuries on the left hand in consequence. Thereafter Kuldip Singh, Gurbux Singh and Amrik Singh made a concerted attack on Rup Singh who was hit by a barchha blow from Kuldip Singh on the left arm and two lathi blows from Amrik Singh on the back. It is also stated that Gurmel Singh then wielded his lathi in self-defence and thereby caused injuries to Kuldip Singh and Jagdev Singh appellants. On an alarm raised by Bachan Singh and Mehma Singh the appellants ran away towards the side of village Gurdwara.
4 The investigation process was commenced by Gurmel Singh who on reaching the police station Morinda which is about three miles from Rauni Kalan gave a first information report at about 11.10 P.M. The Sub-Inspector Ram Sarup P.W. 18 recorded the statement of Gurmel Singh, went to the scene investigated the case, recorded Panchnamas, statements etc. and sent the injured for medical examination. Accused Jagdev Singh and Kuldip Singh were arrested on October 17, 1967 and on the same day the investigating officer took the statements of Bachan Singh, Mehma Singh and Rup Singh, and as he found injuries on them he sent them for medical examination. The other three accused were not available. Gubux Singh surrendered in Court on October 19, 1967 while Amrik Singh and Darshan Singh were arrested on October 21, 1967. The pistol and live cartridge were recovered from the house of Jagdev Singh on October 24, 1967 and they were accordingly sealed and sent to the Ballistic Expert, Shri M.L. Kshetry, who found on the basis of experiments and observations that the three empty cartridges recovered at the scene of the occurrence were fired from the same pistol which had been recovered from Jagdev Singh by comparing them with the cartridge recovered from Jagdev Singh.
5 Dr. Ved Parkash P.W. 3 who examined Gurmel Singh on October 17, 1967 found two injuries on his person (1) Incised wound 1″ x 1/4″ x 1/4″ just in front of lower part of right ear oblique in direction. Blood oozing from the wound; and (2) Contusion 3″ x -” lower and outer part of left thigh 5″ above knee joint reddish in colour oblique in direction. Both the injuries were certified as simple injuries, one with a sharp-edged weapon and the other with a blunt one. Mehma Singh was examined by the same doctor on the same day and he was found to have on the right side of his chest a gunshot wound. 1/4″ x 1/4″, located 5″ from the middle line and 11/4″ below the right nipple. The wound was bleeding. Rup Singh was also examined at the same time by the same doctor. On him were found six injuries of which two were gunshot injuries on upper part of right cheeck 11/4″ below and outer to outer end of right eye and another on the upper and outer part of right upper arm 4″ below shoulder joint. Blood was oozing from both these wounds. There was one incised wound on the upper part of left buttock 11/2″ from the middle line at the level of iliac crest oblique in direction. Slight blood was oozing out from the wound. There was also one penetrating wound on the outer part of left forearm 4″ below elbow joint oblique in direction. Blood was oozing also from this wound. Apart from these injuries there were two contusions one in the upper part of right side of back 21/2″ from the middle line 11/4″ above the lower end of right shoulder blade transverse in direction reddish in colour and the other just right to the middle line, oblique in direction and reddish in colour. Injuries Nos. 3 and 4 were said to have been caused by a sharp-edged weapon while injuries Nos. 5 and 6 with blunt weapon. The doctor was of the opinion that injuries Nos. 1 and 2 would not have been caused by a single gunshot.
6 Jagdev Singh was examined soon after his arrest. He had one penetrating wound, one incised wound and one contused wound in the upper part of left chin 4″ below knee joint. The penetrating wound was in the middle part of back of left hand oblique in direction, while the incised wound was on the upper part of left palm -” below wrist joint slanting in direction. Blood was oozing from both the wounds. Kuldip Singh had one incised wound and three contusions. The incised wound was on the upper and front of right upper arm 6″ below shoulder joint transverse in direction from which slight blood was oozing. The contusions were one on the upper part of back of left hand -” below wrist joint oblique in direction, reddish in colour, and the other on the lower and back part of left upper arm 1″ above elbow joint, oblique in direction, reddish in colour. The third was on the upper and outer part of left shoulder, reddish in colour. Darshan Singh was examined on October 22, 1967, by P.W. 3 and it was found that he had an incised wound on the left clavical 3″ from its inner and with scab formation on its one third part and some pus was present in its outer 2/3rd in direction and one abrasion in the lower and inner part of left leg 21/2″ above the ankle joint with scab formation over the injury. Both these injuries were simple in nature. The post mortem on the deceased according to Dr. Sudershan Lal P.W. 1 which was conducted on October 17, 1967, showed that he had four gunshot wounds one of them was in the abdominal cavity below the umbilicus. On dissection he found
(1) the peritoneal cavity was full of blood. The small intestines were per-porated at two places and the mesentery was full of blood clot. The aorta was injured, a pellet was found lodged in lumbar vertebra. There was a corresponding cut in the shirt and Banyani;
(2) one contused wound with inverted margins 1/2″ x 1/4″ penetrating into the muscles of the right thigh upper part 4″ below the groin. On dissection a piece of metal was found lodged on the right femur bone directly behind the injury. There was a corresponding rent in the Kachha;
(3) one contused wound with inverted margins 1/2″ x 1/4″ penetrating into the muscles or right thigh 1/4″ outer to Injury No. 2. This was the wound of entry, and
(4) one contused wound with inverted margins 1/4″ x 1/5″ on the back of right buttock. This was the wound of exit for Injury No. 3 There was a corresponding rent in the Kachha.
7 As we were of the view that the convictions and sentences awarded to the appellants by the High Court, reversing the decision of the Sessions Court, were on the evidence not justified, we had directed the release of the accused as they had already undergone nearly three years rigorous imprisonment. It appears to us that on the facts of the case as established by the materials on the record, the accused neither had a common object, nor a common intention. The motive which the accused had was against Gurmel Singh and his uncle Thamman Singh who were witnesses in security proceedings instituted on a complaint filed by Rup Singh as a consequence of which the acquitted accused Gurbux Singh and the 5th accused Kuldip Singh were bound over. On the day of the incident no doubt, all the accused except Jagdev Singh had weapons in their hands which could be used as weapons of offence like barchha and lathi Jagdev Singh bad a pistol hidden in his dub it is contended by the learned for the appellants that it is common people in that part of the country to carry such weapons. Whether it is so or not on the prosecution case itself as spoken to by the witnesses on its behalf, Jagdev Singh was standing at a distance of 30 feet from the place of occurrence at the time when Darshan Singh gave a barchha wow near the right ear of Gurmel Singh and Amrik Singh a lathi blow on the left thigh of Gurmel Singh. It was then that Rup Singh went into the house and brought a barchha. When it appeared to Gurdev Singh that there was going to be a fight he intervened by saying that no one should quarrel. It may be that Jagdev Singh thinking that Rup Singh had now got a barchha and was going to attack his brothers fired a shot at Rup Singh but instead killed Gurdev Singh. From then onwards Rup Singh had taken to offensive and injured Kuldip Singh when Jagdev Singh fired twice in quick succession injuring Mehma Singh who was sitting there and Rup Singh, who in spite of his being injured attacked him and injured him. Thereafter the other three accused Kuldip Singh. Gurbux Singh and Amrik Singh were said to have made a joint attack on Rup Singh. It is in evidence of all the prosecution witnesses that till the first attack was made by Darshan Singh and Amrik Singh on Gurmel Singh the accused Jagdev Singh had not taken out his pistol from hit dub which would imply that he only did so after Rup Singh went into the house and brought a barchha after which the deceased Gurdev Singh said intervened. Till then Jagdev Singh remained a silent spectator. No doubt Gurmel Singh says that it is incorrect to suggest that Jagdev Singh took out his pistol from his dub when he received the injuries. The answer would imply that the suggestion made that it was only when Jagdev Singh had received injuries that he took out the pistol but does not indicate whether the pistol was drawn from the dub after Rup Singh had brought out the barchha. The contention on behalf of the accused is justified and is established by Bachan Singh P.W. 6, Mehma Singh P.W. 7 and Rup Singh P.W. 8, P.W. 6 said :
“Rup Singh then went to his house and brought a barchha. Gurdev Singh stated that no one should quarrel. Jagdev Singh then took out his pistol from his dub and fired at Gurdev Singh hitting him on his thigh and stomach.”
Similar is the statement of P.W. 7 Mehma Singh who says he was in his house at the time and on hearing the noise rushed towards the spot all of a sudden and in the process he was hit by a stray-pellet. He also says that it was Rup Singh who inflicted injuries to Kuldip Singh accused first and then Kuldip Singh inflicted injury to Rup Singh. Rup Singh P.W. 8 admitted that he had brought the barchha from his house when Gurdev Singh shouted that no one should quarrel. It was then Jagdev Singh took out the pistol from his dub and fired at Gurdev Singh. He also admitted having caused barchha blows on the arm of Jagdev Singh. In cross-examination also he says that he saw the accused Jagdev Singh taking out the pistol from his dub and at that time Jagdev Singh was at a distance of 6 karams away from him i.e. about 30 feet (a karam being about 5 feet) Gurmel Singh was standing near him at a distance of one yard. Then again he says that he had come put with a barchha when Jagdev Singh hit Gurdev Singh with a pistol, and admits that he hit Kuldip Singh with a barchha after Gurdev Singh had fallen on the ground. At that time Kuldip Singh had not hit any person from each (our) side when he (the witness) inflicted barchha blow on Kuldip Singh’s shoulder. The reason given by Rup Singh for injuring Kuldip Singh is somewhat incredible though it is the sort of thing that a person with a hostile attitude against an opposite party, when frustrated might do, by hitting some one nearby who has not attacked him. Rup Singh says that Kuldip Singh was standing near him and Jagdev Singh was at a distance and because of that fact he had hit Kuldip Singh First.
8 From this evidence the case of the prosecution as given by Gurmel Singh that Jagdev Singh was the first one to raise a lalkara and threatened that he would not let Gurmel Singh and others to escape and would teach them a lesson for appearing in the security proceedings as witnesses is belied, because, as we have noticed earlier, the other prosecution witnesses say that Jagdev Singh was at a distance of 6 karams i.e. 30 feet. The further case of the prosecution that Rup Singh gave a blow on Kuldip Singh in self-defence when Kuldip Singh hit him on the left shoulder is also opposed to Rup Singh’s own testimony.
9 The statement of accused Jagdev Singh is that Darshan Singh had given evidence against Rup Singh a short while before the incident in a case under Section 324 Indian Penal Code. Thereafter after Rup Singh and Gurmel Singh had been threatening him and his brothers with dire consequences. On the day of the occurrence he and his brothers Darshan Singh and Kuldip Singh had gone armed to their fields out of fear as they had to pass by the side of the house of Rup Singh, Darshan Singh had a spear and Kuldip Singh had a stick while he had a pistol C4 in his dub. As they were returning from the field in the evening in the way an attack was made upon them by Gurmel Singh and Rup Singh. They inflicted injuries to him and on the person of his brothers, and in self-defence they used their weapons. He (Jagdev Singh) was injured on his left hand from the hands of Rup Singh. Then he took out his pistol from the dub. The pistol was used only once and due to inadvertence it hit Gurdev Singh who came forward to stop the fighting. After the incident he went to inform the police at the police station, but the police did not record his statement on the plea that a person of the opposite party was killed. The first information report was not recorded in police station. It was recorded in the village after a day. Amrik Singh and Gurbux Singh were not present at the spot. Insofar as it exculpates Amrik Singh and Gurbux Singh that they were not present at the time of the occurrence and had not inflicted injuries on P.W. 5 or on Rup Singh with barchha the case of the accused has been disbelieved by both the courts, and there is no reason for our disagreeing with that conclusion. But insofar as the rest of tine statement is concerned it appears to be consistent with the prosecution evidence, namely, that there was ill will between Rup Singh and Gurmel Singh on the one hand and the accused on the other. The possibility that Rup Singh and Gurmel Singh had threatened the accused cannot be ruled, out from the manner in which Rup Singh attacked the accused and injured them even after Jagdev Singh had fired pistol shots. Taking the statement of the accused under Section 342 Cr. P.C. with the evidence in the case into consideration, it appears to us that the accused had gone to their fields and as they were returning to their houses in the evening by the only way open to them for returning to their houses through the thoroughfare passing over Rup Singh’s house, there was confrontation between Darshan Singh and Amrik Singh on the one hand and Gurmel Singh on the other. In the circumstances set out above an altercation did take place, which appears to have been causal, because if the accused had a common intention all of them would have got themselves immediately involved. But that is not so. There is no evidence to show any prior concert or preparation or a common intention of all in the furtherance of which the several acts were committed. As we have already pointed out any such inference as is drawn by the High Court is ruled out by the fact that Jagdev Singh was standing at a distance of 30 feet watching his brothers and P.W. 5 having altercation in which Darshan Singh and Amrik Singh injured Gurmel Singh P.W. 5. Even then Jagdev Singh did not do anything till Rup Singh brought out the barchha from his house. The learned advocate for the State contends that common intention can develop during the fight. We do not think that any such inference can be drawn. In the circumstances each one of the appellants is liable for his own acts and in our view the conclusions drawn by the Sessions Judge is fully justified.
10 The appeals are accordingly allowed, and the convictions and sentences awarded by the High Court set aside and those of the Sessions Judge substituted.