2005 Supreme(SC) 1118

2005(6) Supreme 261
Supreme Court of India
(From Punjab & Haryana High Court)
B.N. Agrawal & A.K. Mathur, JJ.
State of Punjab —Appellant
versus
Hakam Singh —Respondent
Criminal Appeal No. 130 of 2000
Decided on 31-8-2005
Counsel for the Parties :
For the Appellant : Ranbir Yadav, Pawan Yadav and Bimal Roy Jab, Advocate (NP)/Advocates.
For the Respondent : H.S. Phoolka, Sr. Advocate, Kuldeep Singh and S.S. Ray, Advocates.

Important point
When a lady is confronted with number of intruder in her house armed with deadly weapons and showering bullets she cannot give a very accurate and photogenic version as whole thing happened in a few minutes.

Headnote:(i) Indian Penal Code, 1860—Sections 302, 302/34, 307/34, 449—Murderous assault—Acquittal—Appeal against—PW 3, wife of deceased deposed that at about 9.30 a.m. when her husband and his brother were present in their house, accused persons came in front of their house and all of them entered inside the outer gate of the house and started raising ‘Lalkar’ saying that they would teach them a lesson for taking possession of the plot—Accused ‘B’ immediately on reaching there, fired a shot and abused them—Deceased rushed into the house and brought a licensed gun—Respondent then fired a shot with his bore rifle at deceased—Deceased fired a shot with his gun in self defence which hit accused ‘B’—Accused persons kept on firing shots with their respective guns—Brother of deceased and accused ‘B’ died at the spot—Complainant was one of the witnesses on whose complaint FIR was registered but he died before the trial—Trial Court convicted respondent u/s 302, 302/34, 307/34 and Section 449 IPC—However, High Court acquitted respondent—Whether High Court was justified in acquitting respondent disbelieving evidence of PW3—(No)—PW3 was a truthful witness—Her testimony fully supports case of prosecution.

       Held : The High Court has disbelieved her testimony on the grounds i.e. on the manner of firing and recovery of the guns, non seizure of blood stained clothes but these short-comings hardly impeach her testimony. In order to impeach her testimony technical questions were asked to her which was not the correct approach for discarding her testimony. Therefore, we are of the opinion that the High Court has committed an error in discarding the testimony of this witness on technical grounds de hors the factual statement given by her. (Para 11)

       The defence version was that in fact Bhola Singh who was coming for bus stop was first attacked by the prosecution party and in retaliation the accused persons went there and that the prosecution could not explain the second injury to the deceased Bhola Singh. We do not think that the defence version improbablises the prosecution story. It is just an afterthought theory put up by the defence to improbablise the prosecution story. But the facts as mentioned above particularly the testimony of P.Ws. 3 & 4 sufficiently lend support to the prosecution story. (Para 12)

       After going through the testimony of P.W. 3, the wife of the deceased, Harbans Kaur it leaves no manner of doubt in our mind that she is a truthful witness and her testimony fully supports the case of the prosecution. The technical grounds sought to be utilized by the High Court in discarding the testimony of this witness no where shakes the truthful version given out by P.W.3, Harbans Kaur. Therefore, we are of opinion that the conviction of Hakam Singh under Section 302, I.P.C. by the trial court for causing the death of Harbans Singh was correct and it should not have been reversed by the High Court. (Para 14)

       Now, coming to the question of trespass, that offence also fully stands established on the basis of the testimony of P.W. 3, Harbans Kaur that all alleged trespassed into her house to cause murderous assault on her husband. The injury caused to Sadhu Singh, there is no two opinion that P.W. 4, Sadhu Singh has categorically stated in his testimony that the shots were fired by one Darshan Singh one of which hit him on his arm. Therefore, the conviction of the respondent under Section 307/34 I.P.C. is established and there is no reason to disbelieve this witness. (Paras 15 and 16)

       Now, coming to the conviction of Hakam Singh so far as causing the death of Mohinder Singh under section 302 I.P.C. read with Section 34 I.P.C. is concerned, the only evidence is that of Sadhu Singh and he has deposed that he has seen the whole incident from the house of deceased Mohinder Singh from the iron grill which as per the finding is that there is no iron grill in the house from where he could witness the whole incident. Secondly, the testimony of PW-5 Baldev Singh, son of deceased Mohinder Singh is also not convincing as he could witness the whole incident from long distance. Therefore, we do not think that charge under section 302 I.P.C. read with Section 34 I.P.C. can be upheld against Hakam Singh for causing the death of deceased Mohinder Singh. Therefore, order of the High Court acquitting the respondent of this charge is upheld. (Para 17)

       (ii) Indian Penal Code, 1860—Section 302—Murderous assault by fire arms—Eye witness, a rustic village lady being wife of deceased—Attempt of defence to confront her with different types of fire arms as to whether it was a rifle or a gun shot injury fired through bore gun or 303 rifle—Unrealistic approach—PW3 having clearly identified respondent who fired the gun at her husband should be enough to establish factum of prosecution story—Evidence Act, 1872—Section 3.

       Held : We fail to appreciate how can a rustic village lady would explain about bore of gun or rifle. P.W. 3 whose presence in the house was quite natural and she having clearly identified the respondent who fired the gun at her husband should be enough to establish the factum of whole prosecution story. To expect from her to give the description in a photogenic manner is asking too much. The High Court instead of entering into split hairing the testimony of this witness with regard to the fire arms used in the occurrence should have concentrated more on the hard truth of the matter instead of finding fault with her testimony. We fail to understand the manner in which the testimony of this witness has been appreciated by the High Court. Sometimes while appreciating the testimony of rustic villagers we are liable to commit mistake by loosing sight of their rural background and try to appreciate testimony from our rational angle. When a lady is confronted with number of intruder in her house armed with deadly weapons and showering bullets she can not give a very accurate and photogenic version as whole thing happened in a few minutes. Therefore, while appreciating such testimony Court should give due regard to their rural background and the whole scenario in which the incident happened. She has narrated the whole incident as it happened and also stated that her husband also fired and that shot killed Bhola Singh. That lends considerable support to the testimony of this witness. She was only witness at the occurrence and she has stated what has happened in her house and none was there except Jagdev Singh who had escaped for his life by going out of the house but unfortunately he died. An attempt was made to discredit her testimony with regard to the second injury caused to deceased Bhola Singh. (Para 7)

       She has categorically stated that the shot fired by her husband from the gun hit Bhola Singh. Whether both the shots fired by her husband hit Bhola Singh or one, she cannot depose in such a photogenic manner. But she admitted that one of the shots hit Bhola Singh when there was exchange of fire from the accused side. She had categorically deposed that Hakam Singh fired a shot from the rifle hitting on the back side of the buttock of her deceased husband, Harbans Singh. (Para 7)

       (iii) Indian Penal Code, 1860—Section 302—Murderous assault—Conflict between medical evidence and ocular testimony—Normally ocular testimony should be preferred unless it belies fundamental facts—Evidence Act, 1872—Sections 3 and 45.

       Held : So far as the medical evidence is concerned, P.W. 2 is Dr. S.K. Gupta who conducted the post-mortem examination. P.W. 2 no where says that Harbans Singh was incapable of firing shot, likewise Dr. Malik. Moreover, whenever there is conflict between medical evidence and ocular testimony normally ocular testimony should be preferred unless it belies fundamental facts. Moreover when the ocular testimony of P.W. 3 which speaks volume that her husband fired two gun shots which proved fatal so far as Bhola Singh is concerned, that leaves no manner of doubt that the gun shots were fired by Harbans Singh. If this witness wanted she could have saved her husband by saying that the shot fired by her husband did not hit Bhola Singh, the deceased. Therefore, so far as the truthfulness of the testimony of this witness is concerned, it is beyond doubt, secondly why should she wrongly state the facts because her husband was already dead and she would be the last person to wrongly involve a wrong person. (Para 8)

       (iv) Indian Penal Code, 1860—Section 302—Murderous assault by gun firing—No fire arms were recovered—No seizure has been made of empties—However, testimony of eye witness PW 3 sufficiently lend support to prosecution case—Whether not sending fire arms to Ballistic expert was fatal to prosecution case—(No).

       Held : It would have been better if this was done and it would have corroborated the prosecution story. Seizure of the fire arms and recovering the empties and sending them for examination by the Ballistic expert would have only corroborated the prosecution case but by not sending them to the Ballistic expert in the present case is not fatal in view of the categorical testimony of P.W. 3 about the whole incident. (Para 13)