1. Murder and assault — Unlawful assembly — House-trespass — Charges under Sections 302/149, 449, 324/149 IPC and Section 27 Arms Act. (Para 2 , 3 , 4 , 5 , 7 )
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1996 Supreme(SC) 1950
1996(8) Supreme 353
SUPREME COURT OF INDIA
M.K. Mukherjee and S.P. Kurdukar, JJ.
Hardev Singh etc. -Appellants
versus
Harbhej Singh & Ors. -Respondents
Criminal Appeal No. 557 of 1988
with
Criminal Appeal No. 558 of 1988
Decided on 20-11-1996
Counsel for the Parties :
For the Appearing Parties : Som Datta and R.L. Kohli, Sr. Advocates, Prem Malhotra, R.C. Kohli, R.S. Sodhi, P.C. Khullar, Ranbir Yadav, and R.S. Suri, Advocates.
Important Points
IMPORTANT POINT
The evidence of close relations who testified the facts relating to the occurrence be not rejected merely on the ground that they happened to be the relatives. The evidence of such witnesses be scrutinised very carefully.
The evidence of close relations who testified the facts relating to the occurrence be not rejected merely on the ground that they happened to be the relatives. The evidence of such witnesses be scrutinised very carefully.
Subject
Criminal Law - Murder
Act Referred
Headnote
(i) APPEAL AGAINST ACQUITTAL -Indian Penal Code, 1860-Sections 302/149, 449, 324/149-Acquittal for offence under-Appeal-Prosecution examined PW2 and an injured witness PW3-Merely because other independent witnesses not examined, not a ground to discredit evidence of eye witnesses PW2 and PW3-PW2 and PW3 were consistent in their evidence as regards details or assault caused by respondents-Corroboration from fact that blood stained earth seized from site of occurrence contained human blood-Respondents came together with deadly weapons in their hands with common object to cause death-Non intervention of relatives of deceased including eye witnesses during assault on victims, not fatal-There being enough light to identify accused-Respondents were known to eye witnesses-FIR lodged within three hours of occurrence naming accused with all details proved involvement of accused in crime-Various recoveries corroborated evidence of eye-witnesses-Finding of acquittal recorded by High Court not sustainable-A1 to A6 held guilty u/s 302/149, 449 and also u/s 324/149-A1 also convicted u/s 27 Arms Act. (Paras 16 to 28)
(ii) Indian Penal Code, 1860-Section 149-Scope of-Both accused A2 and A6 being members of unlawful assembly did have common object-They were armed with deadly weapons, came along with other accused and participated in murderous assault on both victims-Both these accused were to be held guilty with aid of Section 149 for substantive offences punishable u/s 302. (Para 27)
(iii) EVIDENCE-Relation witnesses -Evidence of close relations who testified facts relating to occurrence be not rejected merely on ground that they happened to be relatives-Evidence of such witnesses be scrutinised very carefully. (Para 16)
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Reliability of related eye witnesses — Delay in lodging FIR — Misapplication of Section 149 IPC regarding members of an unlawful assembly. (Para 11 , 13 )
3. Related witnesses' testimony is admissible if scrutinized; minor ocular-medical discrepancies are acceptable; lack of intervention by unarmed victims against armed assailants is plausible. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 )
4. Members of an unlawful assembly sharing a common object are liable for the substantive offence under Section 149 IPC, regardless of individual overt acts. (Para 27 )
5. Acquittals set aside — All accused convicted under Sections 302/149, 449, 324/149 IPC and A-1 under Section 27 Arms Act — Life imprisonment awarded. (Para 28 )
6. Can the testimony of related witnesses be rejected solely on the basis of their relationship to the victim?
No. Evidence of close relatives should not be rejected merely because they are related; instead, such evidence must be scrutinized carefully to determine its reliability. (Para 16 )
7. Does a minor discrepancy between ocular testimony and medical evidence regarding injuries or firing distance invalidate the witness's evidence?
No. Minor discrepancies, such as the inability to explain one gunshot wound or an inaccurate estimation of firing distance during a sudden assault, do not necessarily dilute the evidence or doubt the witness's presence. (Para 16 , 23 )
8. Is a member of an unlawful assembly liable for murder under Section 149 IPC if they did not cause a fatal injury?
Yes. If the accused were members of an unlawful assembly with a common object to commit a murderous assault, they are liable for the substantive offence under Section 149 IPC, even if their individual roles were minor. (Para 27 )
9. Is the failure of unarmed witnesses to intervene during an attack by armed assailants a valid ground for doubting their presence?
No. It is considered absurd to expect unarmed victims or relatives to intervene when the assailants are armed with deadly weapons, as doing so could lead to further casualties. (Para 18 )
JUDGMENT
S.P. Kurdukar, J.-These two Criminal Appeals on obtaining Special Leave have been filed by the appellants challenging the legality and correctness of the judgment and order of acquittal dated January 28, 1988 passed by the Punjab and Haryana High Court at Chandigarh.
2. The prosecution had put in the challan before the Judge, Special Court Firozepur on 14.8.1985 for trial of six accused-respondents herein on the following allegations:-
Baldev Singh (since deceased) was the younger brother of Hardev Singh (P.W.2) and Jaswant Singh (P.W.1). Harbhej Singh (A-1), Gurbhej Singh (A-2), Amrik Singh (A-3) and Gurmej Singh (A-4), the respondents herein, are the real brothers whereas Sohan Singh (A-5) and Mohan Singh (A-6), the respondents herein, are the real brothers. The house of Harbhej Singh (A-1) is situated adjoining the house of Hardev Singh (P.W. 2). Harbhej Singh (A.1) and Sohan Singh (A.5) are cousins. Suba Singh, the appellant in Criminal Appeal No. 558 of 1988 is the son of Harbhajan Singh (since deceased), whereas Criminal Appeal No. 557 of 1988 is filed by Hardev Singh, the brother of Baldev Singh (since deceased).
3. It is alleged by the prosecution that Hardev Singh (P.W.2) was doing some construction work at his house. On 23rd May, 1985 at about 7.30 p.m. when he was sitting in his house alongwith Jaswant Singh and their father Chanan Singh, Harbhajan Singh (since deceased) and Suba Singh (P.W. 3) came to his house with a view to help him in the construction work. At that time all the accused persons armed with deadly weapons reached the house of Hardev Singh (P.W.2). Harbhej Singh (A-1) was armed with a . 12 bore double barrel gun, Gurbhej Singh (A-2) with a Gandhali, Sohan Singh (A-5) with a Kirpan, and Amrik Singh (A-3), Gurmej Singh (A-4) and Mohan Singh (A-6) were carrying Gandasas with them. They trespassed into the house of Hardev Singh (P.W.2) and a lalkara was given to teach a lesson to him and others for causing injuries to Harbhej Singh (A-1). Immediately all these accused persons started assaulting Suba Singh (P.W.3) on his chest. In the meantime Harbhej Singh (A-1) fired a shot from his gun hitting on the right dorsal and the pitarm of Harbhajan Singh causing a bleeding injury upon which he fell down. Amrik Singh (A-2) then inflicted blows from the sharp side of the gandasa on his shoulder and right dorsal while he was lying on the ground, Gurmej Singh (A-3) gave a gandasa blow from its sharp side on his right thing; Mohan Singh (A-6) did not leg behind and also gave a gandasa blow on his right ankle. Harbhej Singh (A-1) fired one more short from his gun but it did not hit anybody. A roula was raised whereupon all the accused persons fled away with their weapons.
4. Coming to the second part of the incident of the same transaction, it is alleged by the prosecution that when the accused persons were running away they raised a lalkara to finish Baldev Singh. Apprehending danger to the life of Baldev Singh, Hardev Singh (P.W. 2) and Jaswant Singh hurriedly went in the direction where Baldev Singh had gone to take fodder, to inform him about the first incident and also to caution him. At that point of time Baldev Singh was coming back after taking fodder in the tractor trolley. When he reached in front of the house of A-1, he was surrounded by the accused persons. Baldev Singh stopped the tractor and tried to escape from the back side of the trolley but in the meantime Sohan Singh (A-5) gave a kirpan blow chopping off his right arm. He fell on the barseen fodder lying in the trolley. Harbhej Singh (A-1) raised an alarm whereupon Amrik Singh (A-3) climbed upon the trolley and chopped off his leg with a gandasa whereas Gurmej Singh (A-3) gave two three blows with a gandasa on his left arm. Mohan Singh (A-6) also gave a gandasa blow from its sharp side on his chest. Due to murderous assault Baldev Singh fell in the trolley with bleeding injuries.
5. Hardev Singh (P.W. 2) then contacted Rajinder Sing
