STATE OF HARYANA

GURDIAL SINGH AND PARGAT SINGH

March 19, 1974.

[H. R. KHANNA AND P. K. GOSWAMI, JJ.)

Indian Penal Cocle-Sec. 302 read with Ser. 34-Two contradictory versions pre.r, nted by-prosecuti1Jn-Bene/it of doubt must go to 1/ie accused.

P & G were convicted u/s. 302 and were sentenced to death, The High Court set aside the convictions of both the accused and acquitted them. The State has filed the present appeals against the acquittal of the 2, accused by special leave.

The prosecution case is that on account of a family feud, the deceased was mur~ dered by one P. with a double-barrel gun, in front of one A, the widow of a rich landlord.

The trial court accepted the prosecution version of occurrence and relied upon the evidence of A which was corroborated by the youngest son and the dau$htr. that P, was hoJdina: a gun etc. and he was convicted along with G, _an associate.

On appeal 1 the High Cvurt found that the F.I.R. was recorded subsequently after due deliberation and consultation. The High Court also fOund that the witnenes, relied on by the trial court had supported another version .of the occurrence.

It was found that an attempt had been made to improve upon the story with a vieW to save D, tho eldest Son of the landlord. The High Court, therefore, set

aside the conviction of the accused and aquitted them.

Dismissing the appeal,

 HELD : In the present ase, the prosecution witnesses hiive come out with two iDCODSis.tent versions of the occurrence. One version of.the occurrence is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police. According to the version given before the Court, it was P, who shot dead the deceased while according to other version, it was G of villqe Ramana, who was responsible for the crime. Again, according to the version given in Court, the occurrence was witne§Cd by A. As against that, the version con-· in the police statement was that A had not witnessed the occurrence. Jn v~ of these contradictory versions, the High Court _rightly set aside the conviction and there is no groul'!d for interference by this Court in the present appeal.

(6648-D] . ·

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeals Nos. I & 2 of 1971.

Appeals by special leave from the judgment and order dated the 13th May 1970 of the Punjab arid Haryana High Court in Criminal Appeals Nos. 170 and 201 of 1970. ·

Janarda~ Sharma and R. N. Sachthey, for the appellant. Nurutldin Ahmed and U. P. Singh, for the respondents.

The Judgment of the Court was delivered by

'H KHANNA; J. Pargat Singh (31) of village Taraori was convicted by learned Sessions Judge Kamal under sl:ction 302 Indian Penal Code .and was sentenced to death. Gurdial Singh (35) of village Ramana was

also tried along with Pargat Singh and was convicted under section 302 read with section 34 Indian Penal Code. He too was sentenced to death. On appeal and reference the Punjab and Haryana High Court set aside the conviction of both the accused and acquitted them. The State of Haryana has filed these appeals against the acquittal of the two accused by special leave.

The prosecution also filed charge sheet against Gurdia:t !; ingh of village Taraori, a brother of Pargat Singh accused, but as he was found to be insane, the committing magistrate directed. that his case be separated and a separate challan be filed against him. The said Gurdial Singh of village Taraori was, in the meanwhile, directed to be sent to the hospital for his treatment.

The prosecution case is that Avtar Kaur (PW 3) was married about 33 years ago to Gurinder Singh of village Shamgarh. 'Gurinder Singh was one of the biggest landlords of Kamal district and belonged to a family of Chiefs. About four years after the marriage, Lal Singh, who was aged 65 or 70 years at the time of the present occurrence, was brought by Gurinder Singh to reside with him in Shamgarh. Lal Singh was previously in the service of the mother of Avtar Kaur. Lal Singh was respected like a Guru and was known as Dadaji.

Gurinder Singh 'used to consult Lal Singh deceased with regard to his affairs and generally acted upon the advice of Lal Singh. When a ceiling on landswas imposed, Gurinder Singh, with a view to save some land and prevent its being declared surplus, transferred 23 acres ofland situated in village Taraori to Pargat Singh accused and an equal area of land in that viii: age to Gurdial Singh, brother of Pargat Singh. Parga! Singh and Gurdial Singh were sons of Sher Singh, maternal uncle of Gurinder Singh, and used to reside with him. After the land had been transferred by Gurinder Singh to Pargat Singh and Gurdial Singh, they shifted to village Taraori which is at a distance of about 4 miles from Shamgarh.

They, however, used to visit Shamgarh o.ff and on.

Gurinder Singh died a few months before the present occurrence.

He was survived by his widow Avtar Kaur and three sons Daljit Singh, Gurjeet Singh and Sukhjeet Singh and two daughters Sukhiwan Kaur and Harjiwan Kaur. Sukhjeet Singh and Harjiwan Kaur were tlte only two unmarried children. Sukhjeet Singh was a student of Doon School Debra Dun, while Harjiwan Kaur was studying in another 'school in Debra Dun. Both of them were present in their house at Shamgarh during the days of the present occurrence having come there during winter vacation. The h, ouse is also described during the course,

of evidence as a fort. Daljit Singh and Gurjeet Singh also used to live in that house. Sukhjiwan Kaur too was present there on the night of occurrence.

After the death of Gurinder Singh, Avtar Kaur used to consult Lal Singh in every matter. Gurinder Singh at the time of his death was constructing a cold storage. One chamber of the cold storage had been completed during the life time of Gurinder Singh, while the other chamber yet remained to be completed. Some money was required by Avtar Kaur in that connection. Lal Singh deceased accordingly called Pargat Singh accused about 15 days before the present occurr- ence and told him that as Gurinder Singh had given to him and his brother land worth rupees two lakhs, they should help Avtar Kaur when she was in need of money. Pargat Singh accused then stated that he had nothing to do with that. He also abused Lal Singh and told him that he was nobody to demand the money. Lal Singh deceased then threatened Pargat Singh ihat he would get a suit filed through Sukhjeet Singh, who had recently become major in respect of the land which had been given to Pargat Singh and his brother Gurdia\ Singh.

Daljit Singh eldest son of Gttrinder Singh, it is stted, was a spend thrift. Lal Singh deceased and Gurinder Singh used to tell Daljit Singh not to spend too much money. After the death of Gurinder Singh, Da\jit Singh dem.anded more land in addition to the land which had been given to him by Gurinder Singh in his life time. Demand was also made by Daljit Singh for more money. There used to take place quarrels between Avtar Kaur and Daljit Singh on that account.

The case of the prosecution further is that on December, 11, 1968 Avtar Kaur, Sukhjiwan Kaur, Harjiwan Kaur, Sukhjeet Singh and Lal Singh took their meals in the dining room on the ground floor of the fort. Gurjeet Singh was on that day away to Ferozepore to attend a marriage. After finishing the meals at 9 15 p.m. Avtar Kaur and her two daughters went to her bed room on the upper storey. Sukhjeet Singh bad a room on the ground floor and he went to that room. AL. about 1 () p.m. Avtar Kaur after finishing othe.r work went to the room of Lal Singh. Lal Singh at that time sat on his cot, while Avtar Kaur sat nearby on a chair. Avdr Kaur during the course of her talk asked Lal Singh to settle the miltter about Daljit Singh and to give to him what was his due. When Avtar Kaur and Lal Singh deceased were talking, they heard the sound of a car in the outer courtyard. Daljit Singh, Pargat Singh, Pargat Singh's brother Gurdial Singh, GurdiaU

Singh of Ramana and Rajinder Singh alighted from the car. Rajinder Singh belongs to village Bairsal. He had borrowed Rs. 3,000 in connection with the election of Chanda Singh to the Haryana Legislative Assembly in 1968. Earlier on that day Rajinder Singh refunded Rs. 1,500 out of the amount of Rs. 3,000 to Ram Lal, who was working as an accountant of Gurinder Singh's estate. As Daljil Singh, Rajinder Singh and Gurdial Singh of Ramana had earlier in the day gone for Shikar, Sukhjeet Singh came out and enquired from Daljit Singh as to what he had shot. Sukhjeet Singh was then told by Daljit Singh that , he had been able to shoot four partridges. Daljit SiTigh then went upstairs to his own room taking his gun with him. Sukhjeet Singh .also went to his own room. About 5 or 10 minutes thereafter Sukhjeet Singh and Avtar Kaur heard some footsteps going up the staircase.

Parga! Singh, his brother Gurdial Singh and Gurdial Singh ofRamana then came inside the room wherein Avtar Kaur was talking to Lal Singh deceased. Pargat Singh was holding a double barrel gun P2 in his hand. The said gun belonged to Rajinder Singh. Avtar Kaur en quired from Pargat Singh and others as to why they had come at such .fate hour. Pargat Singh replied that they had come back after Shikar.

Lal Singh then asked them as to whether all three of them had become Shikaris. Parga! Singh replied in the affirmative and said that they would make a shikar of Lal Singh. Parga! Singh at the same time fired at Lal Singh. Before the shot was fired at Lal Singh, Pargat Singh and his two companions made some signs to each other. Lal Singh on receipt of the shot fell down on the spot and died soon thereafter. Avtar Kaur was stunned because of the incident. Pargat Singh and his two coml'anions then left. Harjiwan Kaur, Sukhjiwan Kaur and Sukhjeet

Singh on hearing the gun shot came to the room where Avtar Kaur was present and were told about the occurrence by her. Avtar Kaur was then taken to her room. Sukhjeet Singh was directed by her to call caccountant Ram Lal. When Ram Lal came there he was told by Avtar Kaur that Parga! Singh bad killed Lal Singh by firing a shot with a ·doul)le barrel gun. Ram Lal was told to go to the police station and 110 bring the police. Ram Lal then woke up the car driver and went in 'the car towards the police station. When the car reached near the bus. stop of village Shamgarh on the Grand Trunk Road, Ram La\ saw a police party which included Sub Inspector Ram Rikh. Ram Lal then told the Sub Inspector that Lal Singh had been murdered in the fort and that Ram Lal bad been deputed by Avtar Kaur to call t)le Sub Inspector. Sub Inspector Ram Rikh then went to the fort where Avtar Kaur made statement PD at 3 a.m. to him. The said statement was sent "to police station Butana at a distance of 61 miles from the place of occurrence and formal first information report PJ was prepared on the basis of statement PD at 3 45 p.m. Inquest report relating to the dead body was thereafter prepared by the Sub Inspector. The dead body . was sent to the mortuary in Karna!. Post mortem.examination on the

dead body was performed by Dr. Jagdeep Singh at 4 30 p.m. on mber 12.

On the morning following the occurrence, i.e. on December 12, 1968, a number. of persons including Daljit Singh, Rajinder Singh, 1'argat Singh and the latter's brother Gurdial Singh assembled at the

fort. Sub Inspector Ram Rikh did not arrest Parga! Singh or his brother Gurdial Singh, Daljit Singh then produced gun P2 of Rajinder Singh• along with an empty cartridge which had been fired from that gun.

These articles were taken into possession.

During the course of investigation, it is stated, a counter version of the occurrence came to light, Sub Inspector Ram Rikh and the Deputy Superintendent of Police who was supervising the investigation kept Superintendent of Police Brar (OW 1) informed of the investigation. Final report under section 173 of the Code of Criminal" Procedure in court was filed by Sub Inspector Ram Rikh. In that report only Gurdial Sinh of village Ramana was shown as the culprit.

The names of Parga! Smgh and his brother Gurdial Singh were mentioned in column No. 2 of the challan. The reason for that, according to Sub Inspector Ram Rikh, was that those two persons had been found on investigation to be innocent." The two accused in their statements under section 342 of the Code of Criminal Procedure denied the prosecution allegations which appeared against them in the prosecution evidence. In defence the accused examined Superintendent of Police S. S. Brar who deposed that in view of the fact that there were two versions of the occurrence, he ordered-that before any arrest was made, a thorough probe should be made in the matter to find out the truth.

The trial court accepted. the prosecution version of the occurrence and, in doing so, relied upon the evidence of Avtar Kaur. It was further held that the evidence of Avtar Kaur was corroborated by that of Sukhjeet Singh and Harjiwan Kaur, who had deposed that when they looked out on hearing the gun shot, they .saw Parga! Singh holding a gun and two Gurdial Singhs going downstairs. Regarding the counter version of the occurrence which appeared from the police statements of Avtar Kaur, Sukhjeet Singh and Harjiwan Kaur, the trial court .held that compared to that version, the version as given in the evidence

of the above witnesses in court was reliable. In the opinion of the trial court, the investigauon of the case was tainted and unfair. The argument that there was delay in recording the report was rejected.

On appeal the learned Judges of the High Court found that the circumstances of the case showed that the first information report" was recorded subsequent to the time at which it. purported to have beell' recorded and was the result of deliberation and consultation." The High Court also found that the witnesses, upon whose testimony reliance had been placed by the trial court, had supported a"nother version of th~ occurrence. It was found that an attempt had been made to improve upn the story with a view to save Daljit Singh, eldesr son of Avtar Kaur, Ocular evidence was also found t<' be not in con-" sonance with.the medical evidence. In the result the High Court accepted the appeal, set .aside the conviction of the accused and acquitted them.

We have heard Mr . .Janardan Sharma on behalf of the a1-pellant- State and Mr. Nuruddin on behalf of the accused, respondents and

are of the opinion that the judgm, nt of the High Court calls for no 1nterference. ·

It is not disputed that, Lal Singh deceased died as a result of gun shot wound, Dr. Jagdeep Singh who p.rformed p)st mortem examination on the dead body found "a single oval wound of entry with

"irrcular _inverted margins, 11 11 n trnsverse diameter and 11 .. in vertical diameter, placed on the right side of the neck, just above the calvicle about half inch from the mid-line. The margins of the wound showod blackening and scorching. Hair of beard were not singed. The wound was directed backwards and downwards and towards the mid- 1ine producing extensive laceration of.underlying tissues and fracture •of calvicle bone of right side. Right pleura was ruptured on the top -and the pleural cavity contained large amount of blood. Upper lobe of right lung was lac.rated completely, Middle and lower lobes were 10ontused, showing bleeding on the surface. A pirt of the projectile, lying on the right side of the thoracic cavity, was recovered from mediastinum and two from the left lung, which was also showing haemor- , rhages at various parts. In the n\ediastinum big vassels were ruptured 'at many places and mediastinum was found containing large amount of clotted blood." The injuries were sufficient in the ordinary course •Of nature to cause death.

The case of the prosecution is that it was Parga! Singh accused who fired shot at Lal Singh and thus killed him, The prosecution for this purp)se relied upon tho ocular evidence of Avtar Kaur (PW 3), who "in thi: course of her dcp:>sition supp:>rted the prosecution case as given above, The High Court did not place reliance upon the testimony of this witness, and we find no sufficient ground to take a different view, Avtar Kaur was confronted with her statement made before the police.

Jn that statemont Avtar Kaur stated that after taking her meals, she went to her daughter's room and slept there, It was further stated by Avtar Kaur that on the night of occurrence at about 10 or II p, m.

Rupinder Kaur, wife of Daljit Singh, came to Avtar Kaur and woke her up. Rupinder Kaur also told Avtar Kaur that Daljit Singh was -calling her below in the drawing room, Avtar Kaur further state.d before the police that she had been told by Gurdial Singh of Ramano that in a drunken state he had shot dead Lal Singh deceased and he h> pardoned. Acc>rding to that statemont of Avtar Kaur, she imme- .diately directed that police b> called and thoreupon Gurdial Singh of

<village Ramana tried to run away, but he was secured by Pargat Singh .and Daljit Singh. Daljit Singh also snatched the gun from, his hand, [tis thus plain that the version given by Avtar Kaur in her statement l>>fore the p )]ice was materially different. In view of that fact not much reliance can obviously b: placed upon the testimony of Avtar Kaur in court.

Anothor fact of which note may, bo taken is that, according to Avtar Kaur, she was sitting on a chair in the room of Lal Singh and it was while sitting on that chair that she saw the occurrence.

No such chair was found in that room when /iub Inspector Ram Rikh arrived there on the night of occurrence. It is also nobody's -case that any chair wa• remJved from that room after the occurrence.

HAllYANA V GURDIAL SINGH {Khanna, J.) 663

Th' .ab1cace of the chair in th1t ro'm creates considerable doubt ab, ut lhe correctness of the evidence of Avtar Kaur .

._, The prosecution has sought corroboration of the evidence of Avtar

.IUlur from the testimony of Sukhjeet Singh(PW .4) and Harjiwan Katir, (PW S), accl'rding tq whom they saw Parga! Singh holding a gun and two Uurdial Singhs 'going down the stairs after the occurrence. The . vcmon of these witnesses in their statements before the police was,

however, materially different. Sukhject Singh stated before the P'lice tliatllll bing the drawing room he enquired from Daljit Singh as to~ was the matter and that Daljit Singh then replied that Gurdial Sil!Jh :had shot dead Lal Singh. The witness also stated before the police that Gurdial Singh of village Ramana was lying at the foot ofAvtar Kaur and was saying that under intoxication he had fired the shot and he be plrdoned. Harjiwan Kaur in her statement made before the police stated that she had not seen anybody going or coming. She had also not heard the sound of any gun shot. According to that statement, she, her mother and sister were sleeping in her room on the night of occurrence when Rupinder Kaur came and woke them up.

. The High Court also gave cogent reasons for arriving at the conclusion that the first information report appeared to have been reeorded much later and not at the time it purp, rted to have been done. Police station Butana is at a distance of about I 3 miles from Kamal. Tho two places are connected by metalled road on which buses ply frequently.

Copy of the first information report was received by the Ilaka magistrate at Kamal at 2 p.m. If the formal first information report had, in fact, been preplred at 3 45 a.m. it is not explained as to why the copy of the same was not delivered to the magistrate on the morning of December 12, 1968. Likewise, if the inquest report was prepared by Sub Inspector Ram Rikli shortly after recording report PD at 3 a.m., there is no sufficient reason as to why the dead body which was sent in th• trQ!ly of a tractor to Karna! should be brought to the doctor not before 3·55 p.m. The evidence that it took time to get the tractor ready has not b'en accepted by the High Court and we are not inclined to take a different view.

There is another fact which also indicates that on the morning of December 12, 1968 the P'lice had no material with it about the complicity of Parga! Singh for the murder of Lal Singh deceased. Pargat

Singh was admitiedly amongst those persons who assemblea at the house of Avtar Kaur on the morning of D.:cember 12, 1968. Although Sub Imp:ctor Ram Rikh noticed his presence, he did not arrest Parga!

Singh. It seems rather difficult to believe that if the first information

repart had. been recorded before the assemblage of different persons including Parga! ingh on the momi'!g of J?ccember 12, 1968 and th.e name of Pargat Singh had been menlloned ID that report as the assailant of Lal Singh, the plice Sub Inspector would not take him into custody.

Reliance was placed by the trial court upon the statement of Pargat Singh made before the committing magistrate that on December JI,

1968 he had gone to the room of Lal Singh to pay respects. There is, however, nothing in that statement to show that it related to a visit at day time or at night time. No incriminating inference can in the circumstances be drawn from that statement against Parga! Singh.

The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in court, while the other version is contained in their statements made before the police. According to the version given in court, it was Parga! Singh who shot dead the deceased, while according to the other version it was Gurdial Singh of Ramana who was responsible for the crime.

Again, according to the version given in court, the occurrence was witnessed by Avtar Kaur. As against that, the version contained in the police statement was that Avtar Kaur had not witnessed the occurrence. In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained. We see no ground to interfere with the judgment of the High Court. The appeals fail and are dismised.

s.c.

Appeals dismissed.

B ,