This appeal by way of special leave arises out of the judgment
and order dated 22.07.2004 in Criminal Appeal No. 481 of 1999
passed by a Division Bench of the High Court of Punjab and
Haryana whereby the High Court had allowed the appeal filed by
the accused-respondent Rajinder Singh setting aside his
conviction and sentence of life imprisonment and fine under
Section 302 IPC and under Section 27 of the Arms Act, by giving
him the benefit of doubt and had also dismissed the appeal against
acquittal filed by the appellant-State against the acquittal of Kuldip
Singh and Rachhpal Singh, by the Sessions Judge, Faridkot.
The brief facts leading to this appeal are as follows:
Madan Lal – P.W. 2, the father of the deceased- Harinder
Kumar was the co-owner of brick kilns in villages Madooke and
Ajitwal with Rajinder Singh, respondent herein. About one year
prior to the occurrence, a settlement had been arrived at between
the parties aforesaid and the brick kiln in village Madooke had
fallen to the share of Madan Lal and the one in Ajitwal to the share
of Rajinder Singh. As per the settlement, a truck bearing
registration No. PJB 2155 had also come to the share of Rajinder
Singh who was to pay a sum of Rs. 1,68,000/- to Madan Lal in lieu thereof. On 30th November, 1995, Madan Lal and his son Harinder
Kumar, the deceased along with P.W. 3 - Shamsher Singh and
P.W. 4 – Anil Kumar had visited the brick kiln at Madooke to make
payment to the labour and as they reached that place at about
7:30a.m., they observed that bricks were being loaded onto a
tractor trolley by Rajinder Singh, and Kuldip Singh (armed with
shotguns) assisted by four or five persons. As soon as the
complainant party intervened Rachhpal Singh who too was
present, raised a lalkara calling on Rajinder Singh to fire on the
complainant party. Rajinder Singh thereupon fired a shot which hit
Harinder Kumar near his left eye. Rachhpal Singh and Kuldip
Singh thereafter fired shots towards the complainant party but on
an alarm raised by the latter, the accused ran away firing shots in
the air. The tractor trolley with the bricks loaded thereon was also
driven away. Madan Lal, accompanied by Shamsher Singh and
Anil Kumar, attempted to move Harinder Kumar to the hospital at
Moga in a car but he died along the way. A First Information
Report was thereafter lodged by Madan Lal at Police Station,
Mehna. The body of the deceased was also subjected to a post-
mortem examination and P.W. 1 - Dr. Iqbal Singh opined that the
injury appeared to have been caused with a shot from a rifle,
though the possibility that it had been caused with a shot from a 12
bore gun, using single projectile cartridge, could not be ruled out.
P.W. 9 - ASI Devinder Singh of P.S. Mehna also visited the place
of incident and picked up two spent cartridges of a .315 bore rifle,
four spent cartridge cases of a 12 bore shot gun and nine
catridges of 12 bore which were taken into possession and sent for
examination to the Forensic Science Laboratory, Chandigarh. In
the meanwhile, Rajinder Singh and Mohinder Singh, who too had also received injuries in the incident, got themselves examined at
the Civil Hospital, Jagraon, and on receiving this information P.W.
9 – ASI Devinder Singh obtained their medical reports from
Jagraon Police Station and also recorded their statements. A rifle
of .315 bore belonging to P.W. 4 - Anil Kumar and a 12 bore gun
belonging to P.W. 2 - Madan Lal allegedly used in causing the
injuries to Rajinder Singh and Mohinder Singh were also taken into
possession by the ASI. On the completion of the investigation,
Rajinder Singh was charged for an offence punishable under
Section 302 whereas the other accused were charged under
Section 302/34 of the IPC read with Section 120B of the IPC and
all the three were also charged under Section 27 of the Arms Act.
The prosecution in support of its case relied on the evidence of
P.W. 1 - Dr. Iqbal Singh, P.W. 2 – Madan Lal, P.W. 3 – Shamsher
Singh and P.W. 4 – Anil Kumar, the last three named being eye
witnesses, P.W. 9 – ASI Devinder Singh who had investigated the
case for a day or so and P.W. 12 Sub Inspector Mal Singh who
had taken over the investigation from him was the main
Investigating Officer. The prosecution case was then put to the
accused and their statements were recorded under Section 313 of
the Code of Criminal Procedure. They pleaded false implication. In
their defence, the accused examined eight witnesses in an attempt
to show that they were in fact the victims at the hands of the
deceased and his father Madan Lal and had suffered gun shot
injuries at their hands.
The Sessions Judge, Faridkot in an elaborate judgment held
that the participation of Kuldip Singh and Rachhpal Singh was
doubtful as they had not caused any injury to the deceased and that the three eye witnesses were also discordant as to their role in
the incident. On a philosophical note, the Sessions Judge
concluded that:
“The settled law is that it is safe to acquit 10 accused
persons rather than to convict one innocent. Weighing the
above dictum in the scale of justice, I am of the considered
opinion that when there is a doubt with regard to the
participation of accused Kuldip Singh in the present
occurrence, then it is safe to give him the benefit of doubt and
acquit him. Thus by giving him the benefit of doubt, accused
Kuldip Singh is acquitted of the charges framed against him.”
The Sessions Judge, accordingly, holding Rajinder Singh guilty
of murder convicted and sentenced him under Section 302 of the
IPC and under Section 27 of the Arms Act as already indicated
above, but acquitted Kuldip Singh and Rachhpal Singh.
The matter was thereafter taken to the High Court by way of
two appeals; one by the State of Punjab challenging the acquittal
of Kuldip Singh and Rachhpal Singh and the other by the
convicted accused Rajinder Singh. The High Court by its judgment
dated 07.01.2002 dismissed the appeal filed by the State and
allowed the appeal filed by Rajinder Singh primarily on two
grounds:-
(i) that as per the eye witnesses – Madan Lal and
Shamsher Singh in particular, the weapon used in causing the
fatal injury was a shot gun but the injury found on the
deceased was by a shot from a rifle; and (ii) that the injuries on
the person of Rajinder Singh and Mohinder Singh had not
been explained which cast a doubt on the entire prosecution
story. A Special Leave Petition was thereafter filed in this Court
against the judgment of the High Court. This Petition was
dismissed qua Kuldip Singh and Rachhpal Singh but leave has
been granted with respect to Rajinder Singh, the present
respondent, vide order dated 20th November, 2006.
It is under these circumstances that the matter has come up
before us today for final disposal.
Mr. H.M. Singh, the learned counsel for the State has argued
that there was no reason whatsoever to disbelieve the eyewitness
accounts given by Madan Lal, Shamsher Singh and Anil Kumar;
the first and the third named being close relatives of the deceased,
and in that eventuality any flaw or shortcoming with regard to the
medical evidence ought to have been ignored. He has also
submitted that as per the statement of P.W. 1 – Dr. Iqbal Singh
who had conducted the post mortem examination on the dead
body, the injury on the person of the deceased could have been
caused by a shot gun using a single projectile cartridge and the
finding of the High Court was also wrong on this aspect as well. He
has finally submitted that the observations of the High Court with
respect to the non-explanation of the injuries on the accused was
again based on a mis-appreciation of the evidence as the injuries
could not have been caused to the injured in the manner
suggested by the defence.
Mr. Sushil Kumar, the learned senior counsel for the
respondent-accused Rajinder Singh has, however, supported the
judgment of the High Court.
As would be evident, the fate of appeal would primarily rest on
the evidence of the three eye witnesses vis-á-vis the evidence of P.W. 1 - Dr. Iqbal Singh. We have gone through the judgment of
the Sessions Judge and find that he has, in several places, noticed
the argument on behalf of the accused that the doctor's evidence
did not support the use of a shot gun and that the gun shot wound
was perfectly in consonance with the use of a rifle. Faced with this
situation, the Sessions Judge had no option but to hold that Madan
Lal who was an old man, had seen the weapon from some
distance and it was possible that he had been unable to distinguish
between a rifle and a shot gun and in the light of the fact that he
had every reason to be present on the spot, the eye witness
account was to be preferred over the doctor's evidence. We are of
the opinion that this is perhaps over simplifying and stretching the
matter too far in favour of the prosecution as Madan Lal had
identified the murder weapon as a 'pakki' weapon which in
Punjab's rural dialect always means a 'rifle'. Moreover, the
possibility of a mistake is difficult to swallow for the very significant
reason that Madan Lal and his son Anil Kumar – P.W. 4 were the
owners of a shot gun and a rifle respectively.
The Sessions Judge was also influenced by the fact that the
four spent catridge cases that had been recovered from the place
of incident by P.W. 9 – ASI Devinder Singh on 30th November,
1999 and sent to the Forensic Science Laboratory were found to
have been fired from the licensed shot gun belonging to Rajinder
Singh. We find this observation to be contrary to the record as it is
clear from the report of the Forensic Science Laboratory (Exh. PV)
that it had observed that no conclusive opinion could be given as
to the use of Rajinder Singh's shot gun on account of insufficient
identifying characteristics on the cartridges.
We have also gone through the medical evidence of P.W. 1 -
Dr. Iqbal Singh. He found the following injury on the dead body:-
“A lacerated punctured wound 4cms X 2.5 cms. margines
inverted and colour of abrasion was present and was placed
on the left side of the face on the lower lid and face. Also
incorporating. the left eye bar below the upper eyelid. Grease
colour present over the abrasion colour. the underlying
structures that is left eye ball was macerated into
unrecognisable mass. On probing and dissecting the track of
the wound was backward and to the right. On its way it
fractured the underlying bone and lacerated meninges and
brain matter till it communicated with the lacerated punctured
wound with everted and irregular margines and of the size of
4cms. X 3cms. placed on the right lateral side of head just
above and anterior to right tragus. The upper part of pins was
dismantled. Meninges and brain matter were driven out
through the exit wound. Clotted blood was present. All other
organs were normal.”
As per the ocular account, the shot gun had been fired from a
distance of 10 or 12 karm i.e., 50 or 60 feet or about 20 yards. In
this situation, and if the prosecution story was to be accepted the
pellets would have entered the body making individual pellet holes
and not en-masse as appears in this case. The injury being of the
head along with single exit wound is compatible with the use of a
rifle and not a shot gun. In Modi's Medical Jurisprudence &
Toxicology 23rd Edition, it has been observed:-
“At a distance of one to three feet, small shots make a
single aperture with irregular and lacerated edges
corresponding in size to the bore of the muzzle of the gun, as
the shot enter as one mass, but are scattered after entering
the wound and cause great damage to the internal tissues.
The skin surrounding the wounds is blackened, scorched and
tattooed, with unburnt grains of powder. On the other hand, at
a distance of six feet, the central aperture is surrounded by
separate openings in an area of about two inches in diameter
made by a few pellets of the shot, which spread out before
reaching the mark. The skin surrounding the aperture may not
be blackened or scorched, but is tattooed to some extent. At a
distance of 12 feet, the charge of the shot spreads widely and
enters the body as individual pellets producing separate
openings in an area of five to eight inches in diameter
depending on the choke, but without causing blackening,
scorching or tattooing of the surrounding skin. At a distance of
about 50 feet a pattern measuring about 14 inches from a fully
choked barrel and 28 inches from an unchoked barrel are
produced and at about 100 feet the spread pattern on the
target unchoked one. A rule of thumb in long usage is that the
diameter of the spread of the shot pattern on the skin in inches
is roughly equal to the distance from the muzzle in yards.”
It is true that in cross examination P.W. 1 - Dr. Iqbal Singh
stated that the injury was possible from a rifle as well. However, in
view of the categoric statement in his examination in chief that the
injury was possible with a single projectile 12 bore cartridge the
use of a shot gun becomes suspect, as single projectile cartridges
are not available in India and even, otherwise can be used with a
measure of accuracy only in specialised shot guns. We also find
from the statements of P.W. 9 - ASI Devinder Singh the first investigating officer, that on preliminary investigation he had found
that as per the statement of Mohinder Singh, one of the injured
though not an accused, a .315 bore rifle belonging to Anil Kumar
and a 12 bore gun belonging to Madan Lal had been used in the
occurence and had caused the injuries including the fatal one on
Harinder Kumar (although as pointed out by Mr. H.M. Singh), this
fact had been denied by Inspector Malinder Singh, the subsequent
Investigating Officer. Be that as it may, in the fact that the eye
witness account does not support the medical evidence and vice
versa, we are of the opinion that some serious doubt is cast on the
prosecution story.
It would also be seen that the second ground taken by the
High Court in the impugned judgment is the non-explanation of the
injuries on Rajinder Singh and Mohinder Singh. The injuries found
are given below:-
“Mohinder Singh
1. Obliquely and partially amputated terminal phalanx of
right little finger of right hand. The distal portion of the terminal
phalanx of right little finger had been cut through and through.
There was raw surface 2.5cmx. X 1.5cm present. Bleeding
from the wound was present. cut and of the terminal phalanx of
right little finger was seen and felt in the wound.
2. Obliquely and partially amputated terminal pahalnx of
right ring finger of right hand the distal portion of the terminal
phalanx of right ring finger had been cut through and through.
There was surface 2.5 cm X 1.75 cms. (1.75) present.
Bleeding from the wound was present. Cut end of the terminal
phalanx of right ring finger was seen and felt in the wound.
General condition of the injured was satisfactory. Pulse was 78
per minute. BP 120 X 80 mm of HG.
3. Respiratory rate was 18 per minute. Pubils were equal
and reacting. No vomiting was present.
1. Irregular/lacerated wound 15 cms X 7 cms muscle deep
on back of right lower leg in calf region about 9 cms. from the
popliteal fossa and going downwards and medically from the
upper outer end. There was tattooing of skin 1.75 cms X 1.5
cms., on upper and outer part of upper end of a wound and on
sides of upper end of the wound. The heirs were partially burnt
in the ara. The upper and outer end of the wound for 3 cms.
was bruised and blackened and the margins of the wound in
this area were inverted.
The margins of the wound turned inwards at this point that
is 3 cms from upper and outer end. The muscle for about 1.5
cms depth was lacerated. Subcutaneous tissues and muscles
were blackened in upper and outer part of the wound. Bleeding
was present from the wound. There were three holes in the
right side leg of the pyjama and the pyjama was also blood
stained. There was blackening around two smaller holes in the
pyjama. X-ray of the right lower leg were impaired and painful.
Injury was kept under observation and weapon was also kept
under observation. The probable duration of the injury was
within 6 hours.”
A bare look at these injuries would reveal that they could not
have been self inflicted and it is not even the suggestion of the
prosecution that it was so. The High Court has, accordingly, held that the prosecution story was clearly suspicious and fell within the
scope of the principles laid down for acquittal in the case of non-
explanation of the injuries on the person of an accused in Lakshmi
Singh v. State of Bihar (1976) 4 SCC 394. The following
observations from the aforesaid judgment are relevant:
“In murder case, the non-explanation of the injuries sustained
by the accused at the time of the occurrence or in the course
of altercation is a very important circumstance from which the
Court can draw the following inferences:-
(1) that the prosecution has suppressed the genesis and
the origin of the occurrence and has thus not presented the
true version.
(2) that the witnesses, who have denied the presence of
the injuries on the person of the accused are lying on a most
material point and therefore their evidence is unreliable.
(3) that in case there is a defence version which explains
the injuries on the person of the accused it is rendered
proabable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the
injuries on the person of the accused assumes much greater
importance where the evidence consists of interested or
inimical witnesses or where the defence gives a version which
competes in probability with that of the prosecution one.”
There is yet another circumstance on this aspect which creates
suspicion. As per the defence version, the injuries had been
caused by Madan Lal and his son Anil Kumar to the members of
the accused party and a reference to this fact has been made by P.W. 9 – ASI Devinder Singh in his evidence. It also appears that
on re- investigation two senior police officers D.W. 1 – Manminder
Singh, DSP and D.W. 5 - SP Narinder Pal Singh too had come to
the conclusion that the defence put up by the accused was in fact
the correct one and that they had been the victims of an attack,
rather than the other way around.
We also observe that a shot gun and a rifle (both licensed)
belonging to Madan Lal and Anil Kumar had been taken into
possession and though two empty catridges of a .315 rifle had
been recovered about 120 feet away from the spot on the 30th
November, 1999 they had not been sent to the forensic laboratory
for comparison with Anil Kumar's weapon. Mr. Sushil Kumar is,
therefore, justified in submitting that the investigation in this matter
was tainted and the defence version had not even been taken into
consideration by the investigating officer, more particularly when
two senior officers had given a report favourable to the accused.
We have also examined the scope of inference by this Court
with regard to an appeal against acquittal in State of U.P. v. Banne
(2009) 4 SCC 271 wherein after referring to a large number of
cases earlier decided, it was concluded as follows:
“Following are some of the circumstances in which
perhaps this Court would be justified in interfering with the
judgment of the High Court, but these are illustrative not
exhaustive:
(i) The High Court's decision is based on totally erroneous
view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence
and documents on record;
(iii) The entire approach of the High Court in dealing with
the evidence was patently illegal leading to grave miscarriage
of justice;
(iv) The High Court's judgment is manifestly unjust and
unreasonable based on erroneous law and facts on the record
of the case;
(v) This Court must always give proper weight and
consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering
with a case when both the Sessions Court and the High Court
have recorded an order of acquittal. “
Applying the parameters aforesaid, we are of the opinion that the
judgment of the High Court calls for no interference. The appeal is
dismissed.