1. Armed assault resulting in death and injury — Charges under Sections 302, 307, 148, 323/149 IPC, Arms Act, and TADA. (Para 2 )
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1997 Supreme(SC) 912
1997(6) Supreme 209
SUPREME COURT OF INDIA
M.K. Mukherjee & K. Venkataswami, JJ.
Saudagar Singh & Ors. -Appellants
versus
State of Haryana -Respondent
Criminal Appeal No. 231 of 1988
With
Criminal Appeal No. 237 of 1988
Decided on 8-7-1997
Counsel for the Parties :
For the Appearing Parties : R.L. Kohli and M.S. Gujral, Sr. Advocates, Uma Dutta, Kuldip Singh, Ashok Kr. Mahajan, (B.S. Chahar) Advocate for Prem Malhotra Advocate.
Important Points
The court held that when a dying declaration does not name certain accused persons, they may be granted the benefit of doubt, even if ocular evidence suggests their involvement, ensuring a cautious approach to conviction in cases involving unlawful assembly and murder.
Subject
Criminal Law - Murder
Act Referred
Headnote
Indian Penal Code, 1860-Sections 148, 302/149, 307/149-Conviction under-Appeal against-Eight appellants armed with guns, Gandasas and lathis assaulted informant with lathi and fired a gun shot on deceased & his brother-Deceased died after 15 days-Doctor s opinion that death was direct result of gun shot injuries in abdomen refuted defence suggestion that immediate cause of death was infections developed during surgery-Two witnesses gave ocular version of incident-No reason to disbelieve their testimony-Defence failed to elicit anything in cross examination to discredit them-Deceased in his dying declaration however named only two appellants who fired gun shots-He did not name other five appellants as he could not identify them-From evidence of eye witnesses and dying declaration, conclusion was inescapable that along with others, two appellants who had fired gun shots formed unlawful assembly & fired at deceased-Appellants not named by deceased were liable to be exonerated of charges-Two appellants were liable to be convicted u/s 302/149 & 307/149 I.P.C. (Paras 8 to 16)
(ii) Evidence Act, 1872-Section 114 illustration (g)-Non-examination of eye witness in criminal trial who was injured in the incident-Explanation by prosecution that he was gained over by accused-Explanation borne out by record-No adverse inference liable to be drawn against prosecution. (Para 11)
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Accused claimed false implication and challenged ocular evidence based on visibility; prosecution sought sentence enhancement for the primary assailants. (Para 3 , 5 , 11 , 13 , 14 )
3. Medical evidence confirmed cause of death; ocular evidence was corroborated; however, the dying declaration failed to identify several accused, necessitating their exoneration. (Para 6 , 7 , 8 , 9 , 10 , 12 , 13 , 14 , 15 )
4. Convictions may be set aside for accused not identified in a dying declaration when ocular evidence is insufficient to overcome the resulting doubt. (Para 15 )
5. Convictions of some accused set aside; convictions of others upheld under Sections 302, 307, 148 IPC, Arms Act, and TADA; enhancement appeal dismissed. (Para 16 , 17 )
6. Does the non-examination of a material witness necessarily lead to an adverse presumption against the prosecution?
No. An adverse presumption under Section 114, illustration (g) of the Evidence Act is not drawn if the prosecution provides a plausible explanation, such as the witness being gained over by the accused. (Para 11 )
7. How does a dying declaration that fails to name certain accused affect their conviction despite ocular evidence?
Where a dying declaration fails to identify specific accused persons or ascribe roles to them, the court may exonerate them by way of abundant caution, even if ocular evidence exists. (Para 15 )
8. When is the common object of an unlawful assembly to kill established?
When members of an unlawful assembly use lethal weapons, such as guns, and fire shots at the victims, the common object is inferred to be the killing of the victims. (Para 15 )
JUDGMENT
Mukherjee, J.-These two appeals have been heard together as they stem from a common judgment rendered by the Additional Judge, Designated Court, Karnal (at Ambala) in Sessions Trial No. 52 of 1987. Facts leading to these appeals and relevant for their disposal are as under:
2. (a) On December 27, 1986 at or about 3.00 A.M. Naurang Singh, a resident of Village Manakpur, lodged an F.I.R. with Om Prakash (P.W.19), the then Station House Officer of Ambala (Sadar) Police Station, at Civil Hospital, Ambala, wherein he stated, inter alia, that to keep a vigil over the electric lines of their village. Gurdev Singh (P.W.10) the Sarpanch, used to deploy some villagers every night. In the previous evening. Gurdev had sent Faquira (PW.15). Chowkidar of the village, to inform Harbhajan Singh and Gurnam Singh, two of the villagers, that they would have to perform the above duty in that night. Accordingly, Faquira went to the house of Harbhajan Singh at or about 8.30 P.M. and having found his nephew Nachhatar Singh present there apprised him of the direction of Gurdev Singh. Nachhatar Singh, however, refused to comply with such direction. Over this issue a quarrel ensued between Faquira and Nachhatar Singh in course of which the informant (Naurang Singh) and his son Nirmail Singh (P.W.14) came out of their house. Nachhatar Singh then left the place saying that he would teach Gurdev Singh a lesson for exploiting his authority as the Sarpanch. Sometimes thereafter, Gulab Singh, Kulwant Singh, Jaswant Singh @ Bant Singh and Saudagar Singh, all sons of Amar Singh, Shamsher Singh and Baldev Singh, sons of Sadhu Singh, Charan Singh, son of Raunaq Singh and Nachhatar Singh, son of Gurnam Singh, came there fully armed. While Gulab Singh and Shamsher Singh had guns with them. Charan Singh and Bant Singh had Gandasas and the other four lathis. When the informant along with his son Nirmail Singh and Faquira was about to leave the place to call Gurdev Singh. Saudagar Singh gave a lathi blow on his (informant s) head. Similar blow was also given by Nachhatar Singh. On being so assaulted, informant raised an alarm and hearing the same. Swaran Singh (the deceased) and his brother Gian Singh, sons of Gurdev Singh reached there. Seeing them, Shamsher Singh fired a shot which, however, did not hit anybody. Then Gulab Singh fired a shot which hit Swaran Singh and felled him down. All the miscreants then ran away with their respective weapons. The informant and Swaran Singh were then taken to the hospital where the Station House Officer came on receipt of a ruqa from the doctor.
(b) On the above statement of Naurang Singh, a case was registered against the above eight accused persons and Sub-Inspector Om Prakash took up investigation. He first arranged to get the dying declaration of Swaran Singh recorded by Shri R.K. Garg (P.W.2), an Executive Magistrate (Exht. P/C-4) and then went to the site of the incident. He seized some blood stained earth and two pieces of wad from near the house of Naurang Singh and also prepared a site plan. In course of investigation, he arrested the accused persons and seized the licenced DBBL gun of accused Shamsher Singh and two cartridges.
(c) On January 11, 1987, Sub-Inspector Om Prakash received a report that Swaran Singh had succumbed to his injuries; and on receipt of the same he went to the hospital and after holding inquest on his body, sent it for postmortem examination. Dr. Vinay Goel, (P.W.1), who held the autopsy, recovered some pellets from the dead body of Swaran Singh and sent the same to the Forensic Science Laboratory (F.S.L.) for examination. On receipt of the report of F.S.L. and after completion of investigation, police submitted charge-sheet against the eight accused persons and in due course, their case was committed to the Court of Sessions.
3. The accused persons pleaded not guilty to the charges levelled against them and contended that they had been implicated falsely.
4. In support of its case, the prose
