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2003(2) Supreme 155
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S. Rajendra Babu & G.P. Mathur, JJ.
Amar Singh -Appellant
versus
Balwinder Singh & Ors. -Respondents
Criminal Appeal No. 1671/1995
Decided on 31-1-2003
Counsel for the Parties :
For the Appellant : O.K. Khullar, R.C. Kohli, Advocates.
For the Respondent : Ashwani Kumar, Sr. Advocate, Ms. Prem Malhotra, Rishi Malhotra, Bimal Roy Jad, Ms. Sunita Pandita, Advocates.
Held : The learned Sessions Judge after placing reliance on the testimony of the eye-witnesses and the medical evidence on record was of the opinion that the case of the prosecution was fully established. Surprisingly the High Court did not at all consider the testimony of the eye witnesses and completely ignored the same. Section 384 Cr.P.C. empowers the Appellate Court to dismiss the appeal summarily if it considers that there is no sufficient ground for interference. Section 385 Cr.P.C. lays down the procedure for hearing appeal not dismissed summarily and sub-section (2) thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 Cr.P.C. lays down that after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, the Appellate Court may, in an appeal from conviction, reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction. It is, therefore, mandatory for the Appellate Court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eye-witness account the testimony of the eye-witnesses is of paramount importance and if the Appellate Court reverses the finding recorded by the Trial Court and acquits the accused without considering or examining the testimony of the eye-witnesses, it will be a clear infraction of Section 386 Cr.P.C. (Para 7)
In the present case, the incident took place at about 7.00 p.m. on 23.5.1987. On 23rd May the sun sets fairly late and there is good light at 7.00 p.m. and as such the witnesses must have seen and identified the assailants, who were all residents of the same village Chatha Sekhwan and were very well known to them. The three eye-witnesses examined by the prosecution, namely, PW4 Amar Singh, PW7 Bhan Singh and PW8 Gurbachan Singh are injured witnesses and, therefore, no doubt can be raised about their presence on the spot. They have given a consistent version that A-1 and A--2 were armed with SBBL guns and A-3 and A-4 were armed with DBBL guns and that all the accused fired from their respective weapons causing injuries to them and also to Kashmira Singh, Pritam Singh and the deceased Lakha Singh. Thus the evidence on record fully establishes the case of the prosecution. (Para 8)
In our opinion, in the facts and circumstances of the case the view taken by the High Court that there was inordinate delay in lodging the FIR is not correct. The Special Report of the occurrence was sent to CJM, Sangrur within two hours and 20 minutes of the lodging of the FIR. The Special Report was, therefore, sent very promptly and it cannot be said by any stretch of imagination that there was any delay in sending the same. (Para 9)
Held consequently : We are, therefore, clearly of the opinion that in the facts and circumstances of the case there was no delay in either lodging of the FIR or in sending the Special Report to the CJM and the view to the contrary taken by the High Court is absolutely incorrect. (Para 11)
Held further : In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eye-witnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief. (Para 15)
Held thereafter : The prosecution having examined three eye-witnesses, in our opinion, there was no necessity of multiplying the number of witnesses and no adverse inference could be drawn against the prosecution merely on the ground that Kashmira Singh or Pritam Singh were not examined. If the incident had not taken place as suggested by the prosecution but had happened in a different manner, there was no impediment in the way of the accused-respondents to examine the aforesaid persons as defence witnesses, but they did not chose to do so. Having given our careful consideration to the submissions made by learned counsel for the parties, we are of the opinion that the judgment and order of the High Court is wholly perverse and illegal inasmuch as it completely failed to consider the testimony of the eye-witnesses and the reasons given for discarding the prosecution case are also unsustainable in law. (Paras 18 and 19)
Held finally : In the result, the appeal succeeds and is hereby allowed. The judgment and order dated 26.9.1991 of the High Court is set aside and that of the learned Additional Sessions Judge, Sangrur is restored. The accused-respondents shall surrender forthwith to undergo the sentences imposed upon them by the learned Additional Sessions Judge. The Chief Judicial Magistrate, Sangrur shall take immediate steps to take the accused-respondents in custody and for realisation of fine. (Para 20)
JUDGMENT
G.P. Mathur, J.-This appeal has been preferred by the complainant (first informant) against the judgment and order dated 26.9.1991 of High Court of Punjab & Haryana by which the appeal preferred by the accused-respondent was allowed and the judgment and order dated 28.7.1989 of Additional Sessions Judge, Sangrur by which they had been convicted and sentenced was set aside. The learned Additional Sessions Judge had convicted accused Surjit Singh under Section 302 IPC and the remaining three accused, namely, Balwinder Singh, Avtar Singh and Mal Singh under Section 302 read with Section 34 IPC and had sentenced each of them to imprisonment for life and a fine of Rs.5,000/- and in default to undergo six months rigorous imprisonment. The accused were further convicted under Section 307 IPC and were sentenced to rigorous imprisonment for four years and a fine of Rs. 500/- each and in default to undergo two months rigorous imprisonment. All the sentences were ordered to run concurrently.
2. The case of the prosecution, in brief, is that at about 7.00 p.m. on 23.5.1987 the complainant, Amar Singh along with his sons Lakha Singh, Gurbachan Singh and Bhan Singh and two others namely, Kashmira Singh and Pritam Singh, was coming towards his outer house after having unloaded the trolley of wheat straw. When they were at a distance of about 5-6 karams from the Baithak of Gurdial Singh, they saw that accused Balwinder Singh (A-1) and Avtar Singh (A-2), armed with SBBL guns and accused Surjit Singh (A-3) and Mal Singh (A-4) armed with DBBL guns were standing there. A-1 entered the Baithak and fired a shot towards them through the iron gauze of the window which hit Kashmira Singh. Surjit Singh (A-3) fired a shot which hit Lakha Singh on his face and left side of the neck and right hand and a second shot which hit Amar Singh. A-4 fired a shot which hit Bhan Singh and a second shot which hit Gurbachan Singh. A-2 fired a shot which hit Pritam Singh. Thereafter the accused ran away. Amar Singh then carried Lakha Singh to his outer house and all the injured persons also reached there. The injured persons were then taken to bus stand, Sangrur, in the tractor trolley of Major Singh, where they hired two taxies on which they proceeded to Christian Medical College, Ludhiana where they were admitted at about 11.30 p.m. on the same night, Lakha Singh succumbed to his injuries at about 8.00 am. on 24.5.1987. Information was then sent from the hospital to S.H.O. Division No. 3, Ludhiana and thereafter PW 14 Sardara Singh, S.I. Police Station, Sangrur came there and recorded the statement of Amar Singh. This was sent to PS, Sangrur through Joga Singh, Constable and a formal FIR was recorded at 9.20 p.m. After investigation, charge sheet was submitted against the four accused-respondents and in due course they were committed to the Court of Sessions.
3. During the course of trial the prosecution examined in all 17 witnesses including three eyewitnesses of the occurrence and filed some documentary evidence. The accused in their statement under Section 313 Cr.P.C. denied the case of the prosecution and pleaded that they had been falsely implicated. The defence of A-3 was that there was some dispute regarding passage between Amar Singh and Sadhu Singh and in the said case his father had appeared as a witness against the former. He further pleaded that he had contested the election for the office of Sarpanch against Hari Singh in which A-1 was polling agent of Hari Singh and that A-1 was removed from service on his complaint regarding embezzlement. He thus submitted that he had strained relations with A-1 and A-2 and as such he could not have joined with them in the commission of the crime. The accused examined three witnesses, namely, DW-1 Sadhu Singh, DW-2 Ram Singh and DW-3 Pritam Singh in their defence.
4. The learned Sessions Judge believed the case of the prosecution and convicted and sentenced the accused as mentioned earlier. The appeal pref
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