-1- Criminal Appeal No.380-DBA of 1999. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Gurmail Singh ...Appellant VERSUS Mukhtiar Singh and others ...Respondents 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM : HON'BLE MR.JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. G.S. Gill, Advocate, for the appellant. Mr. T.S. Sangha, Advocate, for the respondents. -.- MOHINDER PAL, J. Leave to appeal was granted on August 06, 1999. Complainant Gurmail Singh has filed this appeal impugning the judgment dated November 18, 1997, passed by the learned Sessions Judge, Faridkot, in a complaint case filed -2- Criminal Appeal No.380-DBA of 1999. by Gurmail Singh (complainant) against respondents Mukhtiar Singh, Gurdial Singh, Nek Singh, Mela Singh, Gurdev Singh and Sadhu Singh vide which the respondents were acquitted of the charges framed against them under Sections 148, 302 and 302 read with Section 149 of the Indian Penal Code (hereinafter referred to as `the Code'). It is pleaded in the grounds of appeal that the learned Sessions Judge while passing impugned judgment ignored the relevant evidence on record and wrongly relied upon the defence version that Kewal Singh and Charan Singh had died in an encounter with the police. The learned Sessions Judge failed to take note of the fact that First Information Report No.66 dated May 24, 1990 in regard to this very incident, which was got lodged by Mukhtiar Singh (respondent No.1) in connivance with the police officials alleging that Hakam Singh was shot dead by Kewal Singh and Charan Singh, the accused were acquitted of the charge framed against them vide judgment dated November 25, 1994, passed by the Sessions Judge, Faridkot. In the same judgment, the Sessions Judge observed that the demeanour of Mukhtiar Singh (respondent No.1) was condemnable. In view of the specific allegations of connivance of the respondents with the police, the learned Sessions Judge has erred in relying completely upon the testimony of Deputy Superintendent of Police Kashmir Singh (D.W.1), who had investigated the matter in the State case. The trial Court also ignored an extremely material fact i.e as -3- Criminal Appeal No.380-DBA of 1999. to how and on whose intimation the police party reached the place of occurrence. when Deputy Superintendent of Police Kashmir Singh (D.W.) admitted that the message in this regard was not noted down in writing in the police Station. The trial Court wrongly discarded the statements of P.W.3 Mukhtiar Singh and P.W.4 Darbara Singh on the ground that the version given by them in Court did not tally with their statements recorded under Section 161 of the Code of Criminal Procedure. It is opposed to all reasonable probabilities that when two persons are being chased by 50-60 persons, they could not be over-powered and, secondly, if it is believed that both of them were firing while running away, it is impossible that no one got hurt. The version given in the complaint is corroborated by the medical evidence. The learned Sessions Judge erred in holding that there was a delay of about one month in filing the complaint. In fact, the delay is explained in the complaint dated June 25,1990. The prosecution evidence was sufficient to warrant conviction of the accused-respondents and the trial Court erred in not believing the same. The facts of the prosecution case are that on May 24, 1990, at about 7.30 P.M, son of complainant Gurmail Singh, namely, Kewal Singh (since deceased) and Charan Singh (since deceased) were present in the `Dera' of `Raja Peer' of the village when somebody fired at Hakam Singh, who was also present in the `Dera'. Hakam Singh died as a result of said firing. Kewal Singh and Charan Singh were frightened by the -4- Criminal Appeal No.380-DBA of 1999. said incident and they rushed to the village and informed Mukhtiar Singh (respondent No.1) about the same. Mukhtiar Singh (respondent No.1), along with the other respondents, while armed with `Gandasas and `Kasias, chased the assailants of Hakam Singh, but failed to apprehend them and returned. They also brought with them one rifle which presumably was of the assailants of Hakam Singh. The accused-respondents took away Charan Singh and Kewal Singh on the plea of making inquiries from them about the incident regarding the murder of Hakam Singh. Complainant Gurmail Singh also followed the accused to the house of Bachan Singh, brother of Mukhtiar Singh accused. There all the accused insisted that Charan Singh and Kewal Singh should disclose the identity of the assailants of Hakam Singh, but they denied knowing anything about the same. As such, the accused became furious and accused Sadhu Singh exhorted his co-accused to kill Kewal Singh and Charan Singh as they were the conspirators in the murder of Hakam Singh. Accused Mukhtiar Singh gave a `Gandasa' blow on the left side of head of Kewal Singh. Gurdial Singh accused gave a ` Gadasa' blow on the forehead of Kewal Singh. Nek Singh accused gave `Kasia' blows on the right side of head and leg of Kewal Singh. Accused Sadhu Singh gave `Gandasa' blow on the forehead of Charan Singh. Accused Gurdev Singh gave a `Gandasa' blow to Charan Singh on his forehead. Accused Mela Singh gave a `Kasia' blow on the chest of Charan Singh. As a result of the injuries caused by the accused-respondents, both Charan Singh and -5- Criminal Appeal No.380-DBA of 1999. Kewal Singh died at the spot. Darshan Singh son of Puran Singh, Darbara Singh alias Mota Singh and Mukhtiar Singh son of Bakhtawar Singh also saw the occurrence. Gurmail Singh (complainant) went to Police Station Baghapurana and narrated the occurrence to the police. The police came to the village and took the custody of dead bodies. However, in collusion with the accused-respondents, the police fabricated the story and fixed the liability for the murder of Hakam Singh on Kewal Singh and Charan Singh and others. Dr.K.K. Aggarwal (P.W.1) on May 25, 1990 at 11 A.M conducted autopsy on the dead body of Charan Singh and found the following injuries:- “ 1. A lacerated wound 5 x 1 cm on middle of forehead. 2. A lacerated wound 1.5 cm x .5 cm on middle of forehead. 3. A reddish brown abrasion 12 x 1 cm on left side of chest, .2 cm medial to left nipple. Obliquely placed. “ On dissection of scalp, clotted blood was present on forehead and top of head. There were multiple fractures of frontal bone and fractured pieces were pushed in cranial cavity. There was laceration of brain matter. About 500 cc of fluid blood and clotted blood was present in cranial cavity. -6- Criminal Appeal No.380-DBA of 1999. Injuries were ante mortem in nature. In the opinion of the Doctor, the cause of death was laceration of brain as a result of multiple fracture of skull which was sufficient to cause death in ordinary course of nature. The time that elapsed between injuries and death was immediately and between death and post mortem within 24 hours. On the same date i.e May 25, 1990, at 12 noon, Dr.K.K. Aggarwal (P.W.1) also conducted post mortem examination on the dead body of Kewal Singh and found the following injuries:- “ 1. A lacerated wound 4 cm x 1 cm present on left side of head, 4 cms behind and above left ear. 2. A lacerated wound 4 x 1 cm present on the left side of forehead. 3. A lacerated wound 4 x .5 cm present on right side of temporal region, 1 cm from right ear. 4. A lacerated wound 2 x .5 cm present on left leg in middle 1/3rd.” On dissection of scalp, clotted blood was present on forehead, back of skull and right temporal region. On removal of haematoma, there was fissed fracture 10 cms in length involving left parieto-occipital region corresponding injury No.1. About 500 -7- Criminal Appeal No.380-DBA of 1999. cc of fluid blood and clotted blood was present in cranial cavity. Injuries were ante mortem in nature. In the opinion of the Doctor, the cause of death was intera-cranial haemorrhage as a result of injury No.1, which was sufficient to cause death in ordinary course of nature. The time that elapsed between injuries and death was immediate and between death and post mortem within 24 hours. P.W.2 complainant Gurmail Singh, P.W.3 Mukhtiar Singh son of Bakhtawar Singh, P.W.4 Darbara Singh gave an eye- witness account of the occurrence. In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-respondents denied the occurrence. They stated that they have been falsely implicated. It has been stated by accused Gurdial Singh that Hakam Singh was his brother and he was murdered by Kewal Singh son of Gurmail Singh (complainant) and Charan Singh, a friend of Kewal Singh. In that case, Mukhtiar Singh (P.W.3), Darbara Singh (P.W.4) and Karnail Singh were challaned for the murder of Hakam Singh. Kewal Singh and Charan Singh died in an encounter. He (accused-respondent Gurdial Singh) and accused-respondents Mukhtiar Singh, Nek Singh, Mela Singh and Gurdev Singh were the prosecution witnesses in that murder case. After murdering Hakam Singh, Kewal Singh and Charan Singh ran towards the fields and the inhabitants of the Village ran after them armed with different weapons. The said assailants were also firing while running away. A police party headed by -8- Criminal Appeal No.380-DBA of 1999. Kashmir Singh, Inspector, came from the opposite side and there was a cross-firing between the police and the deceased in the fields of Bhajan Singh. Kewal Singh and Charan Singh died in the fields of Bhajan Singh. Rifle was recovered from near the dead body of Kewal Singh and a `Kirpan' was recovered from near the deceased Charan Singh. Some empties were also recovered. The case was registered. Inquest reports were prepared in the fields of Bhajan Singh. Nothing happened at the house of Bachan Singh as alleged by the prosecution. The other accused have also given similar version. In their defence, the accused-respondents examined Deputy Superintendent of Police Kashmir Singh as D.W.1. We have heard the arguments of Mr.G.S.Gill, learned counsel appearing for the appellant and Mr.T.S.Sangha, learned counsel appearing for the respondents and the evidence has been scrutinised with his help. Learned counsel for the appellant has reiterated the submissions made in the grounds of appeal. The law with regard to the powers of the High Court while hearing appeal against order of acquittal was summarised by the apex Court in the case of Allarakha K.Mansuri vs. State of Gujarat, 2002(1) RCR (Criminal) 748, as under:- “(i) High Court has full powers to review the evidence upon which an order of acquittal is based. (ii) It will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of -9- Criminal Appeal No.380-DBA of 1999. innocence in favour of the accused is reinforced. (iii) High Court should be slow in disturbing the finding of the fact arrived at by the trial Court. (iv) If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (v) It is not a jurisdictional limitation on the appeal court but a judge made guideline of circumspection. (vi) Paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. (vii) Where the trial Court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. (viii) Probable view taken by the trial Court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence.” The trial Court, after appraising the entire evidence, came to the conclusion that that the prosecution has failed to prove that the deaths of Kewal Singh and Charan Singh took -10- Criminal Appeal No.380-DBA of 1999. place due to an act done by the accused-respondents. In this case, to prove its case, the prosecution examined three witnesses, namely, P.W.2 complainant Gurmail Singh, P.W.3 Mukhtiar Singh son of Bakhtawar Singh and P.W.4 Darbara Singh. In their examination -in-chief, they supported the version given in the complaint and deposed about the murder of Hakam Singh having been committed by someone. However, P.W.2 complainant Gurmail Singh, when confronted with his statement recorded under Section 161 of the Code of Criminal Procedure, he denied the occurrence regarding the murder of Hakam Singh. P.W.3 Mukhtiar Singh has admitted in his cross- examination that he and his brother Darbara Singh (P.W.4) were challaned for the murder of Hakam Singh and that case was registered on the statement of Mukhtiar Singh (accused- respondent No.1). Accused-respondents Gurdial Singh, Nek Singh and Mela Singh were witnesses in that case. He also admitted that Kewal Singh and Charan Singh (deceased) were `Nihangs' and were friends. The accused-respondents, in their defence, examined Deputy Superintendent of Police Kashmir Singh (D.W.1) . He stated that he had investigated the case State Vs. Darbara Singh and others under Section 302 of he Code. In that case Kewal Singh and Charan Singh (deceased) were main accused and that they were killed in an encounter. They were killed in the fields of Bhajan Singh in the jurisdiction of Village Rajeena. The occurrence had taken place on May 24, 1990. At that time, he was Inspector and was posted as Station House -11- Criminal Appeal No.380-DBA of 1999. Officer of Police Station Baghapurana. On that day, he received a wireless message that Hakam Singh had been murdered with fire arms by two persons in `Dera' of Raja Peer and that the inhabitants of the village were after the assailants. As such, he along with other police officials went towards the `Dera' and near the fields of Bhajan Singh he saw that the assailants were firing at the inhabitants. He and other police officials fired at the assailants. Inhabitants of the village also gave injuries to the assailants and both of them died in the fields of Bhajan Singh. Kewal Singh and Charan Singh were killed in the encounter. At the time when inquest reports on the dead bodies of Kewal Singh and Charan Singh were prepared, statement of complainant Gurmail Singh, father of Kewal Singh (deceased) and Resham Singh son of Gurmail Singh, were recorded and they had identified the dead bodies. As such D.W.1 Deputy Superintendent of Police Kashmir Singh fully supported the version set up by the accused. The occurrence is alleged to have taken place on May 24, 1990 and the complaint was filed on June 25, 1990 i.e after about one month of the occurrence. As such, there is also delay in filing the complaint. For the aforesaid reasons, the learned Sessions Judge came to the conclusion that the version given by the prosecution witnesses is improbable and unbelievable. On the other hand, the version given by the accused-respondents is reliable and it gets support from the statement of D.W.1 Kashmir Singh. From the evidence produced by the prosecution, it is -12- Criminal Appeal No.380-DBA of 1999. not proved that the deaths of Kewal Singh and Charan Singh had taken place due to an act done by the accused. Thereafter, the essential ingredients of the offence under Section 302 of the Code are not there. The evidence is also not there that the accused formed an unlawful assembly. Since the charge under Section 302 of the Code is not proved, the charge under Section 148 of the Code also fails. After perusing the impugned judgment of acquittal rendered by the learned Sessions Judge, Faridkot, we find no perversity in the same and no contrary view can be adopted. Rather, it is well-reasoned and legally sound. We refrain from interfering in the impugned judgment of acquittal and dismiss the appeal. ( ASHUTOSH MOHUNTA ) JUDGE November 01, 2007. ( MOHINDER PAL ) ak JUDGE