Delhi High Court
Suresh Singhal vs State (Delhi Admin) on 1 September, 2010
Author: V.K. Jain
Bench: Badar Durrez Ahmed, V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 20.08.2010
Judgment Pronounced on: 01.09.2010
+ CRL.A. 232/1997
SURESH SINGHAL ..... Appellant
versus
STATE (DELHI ADMIN) ..... Respondent
+ CRL.A. 217/1997
STATE (DELHI ADMIN) ..... Appellant
versus
SURESH SINGHAL ..... Respondent
+ CRL.A. 226/1997
STATE (DELHI ADMIN) ..... Appellant
versus
ROSHAN LAL
..... Respondent
Advocates who appeared in this case:
For the Appellant/ :Mr Siddharth Luthra, Sr Advocate with Mr Madhav Respondent Khurana, Mr Ankur Garg and Ms Priyanka Gupta, Advocates for respondent in CRL.A. 217/1997 & for appellant in CRL.A. 232/1997 Mr I.U. Khan with Mr Ghanshyam Sharma and Mr Aman Khan, Advocates for respondent in CRL.A. 226/1997.
For the State : Mr K.K. Sood, Sr Advocate with Ms Richa Kapoor, APP and Mr Kunal Malhotra, Advocate.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes CRL. A. No. 232, 217& 226 of 1997 Page 1 of 93 V.K. JAIN, J
1. These appeals are directed against the judgment dated 29th March 1997 and the Order on Sentence dated 31st March 1997, whereby Suresh Singhal, the appellant in Criminal Appeal No. 232/1997 and his father and co-appellant Pritpal Singhal, who died during the pendency of the appeal, were convicted under Section 302 and 307 of IPC, read with Section 34 thereof, whereas their co-accused Roshan Lal was acquitted. The appellants Suresh Singhal and late Pritpal Singhal were sentenced to imprisonment to life and to pay fine of `5,000/- each under Section 302/34 of IPC, for committing murder of Krishan Lal. The appellant Suresh Singhal was also sentenced to undergo imprisonment for life and to pay fine of `5,000/- or to undergo R.I. for 6 months in default under Section 302 of IPC, for committing murder of Shyam Sunder.
Both, Suresh Singhal and his father Pritpal Singhal, were also sentenced to undergo R.I. for 10 years each and to pay fine of `3,000/- each or to undergo R.I. for 6 months in default under Section 307/34 of IPC. The substantive sentences were directed to run concurrently.
2. Criminal Appeal No. 226/1997 is directed against the acquittal of Roshan Lal, whereas Criminal Appeal No.217/1997 has been filed by the State seeking death CRL. A. No. 232, 217& 226 of 1997 Page 2 of 93 penalty to the convict Suresh Singhal.
3. On 4th March 1991 at about 5.45 PM deceased Shyam Sunder and Krishan Lal, both brothers, were brought to Deen Dayal Upadhaya Hospital in two separate PCR Vans. On the same day, their brother Hans Raj was also brought to RML hospital in injured condition, by his brother Ram Narayan. The Investigating Officer, when he reached the hospital, on receipt of this information, was informed that both, Shyam Sunder and Krishan Lal were dead, when brought to the hospital. He thereupon reached the shop of Lala Harkishan Dass, at Rajendra Park, Nangloi, where the incident had taken place and recorded his statement, on the basis of which the FIR was registered. Lala Harkishan Dass told the Investigating Officer that Krishan Lal, Shyam Sunder, Hans Raj and Raju, all sons of Shri Mohan Lal of Bahadurgarh were doing business of property dealers under the name and style of M/s Vijay Property Dealer at Bahadurgarh. They had arranged a deal of a property of Suresh Singhal with Tarsem, Sarovar and Tilak Raj, hereinafter referred to as the Gurdaspur Party. Since there was some misunderstanding and altercation between them, on the issue of payment, the parties had approached him for getting the matter settled and were called by him to his office at 4.00 PM. Shyam Sunder, CRL. A. No. 232, 217& 226 of 1997 Page 3 of 93 Hans Raj, Raju and Krishan Lal, all brothers, accordingly came to his office at 4.00 PM. Gurdaspur Party reached his office at 5.10 PM. Suresh Singhal and his father Pritpal Singhal, accompanied by a man, aged about 35-36 years, then reached his office. As soon as they entered his office, there was an altercation between Suresh Singhal and Shyam Sunder. Suresh Singhal took out his revolver and shot Shyam Sunder, which led to a commotion. Being scared, he (the informant) escaped, using the rear door of his office. Later, he came to know that Krishan Lal was also shot by those people. He also stated that car No. DL4C-0532 in which Suresh Singhal, his father Pritpal Singhal and their companion had come to his office, was left by them on the spot and they had fled away in the Fiat car of another visitor Subhash, who had left the key of the car in its ignition. The information given to the police by Lala Harkishan Dass was supplemented by the statement of Raj Kumar, recorded on the same day. He, while confirming the version given by Lala Harkishan Dass, stated that his brother Shyam Sunder had brokered a deal with Pritpal Singhal and Suresh Singhal and that on 03rd March, 1991, there was an altercation between his brother Shyam Sunder on the one hand and Suresh Singhal and his father Pritpal Singhal on the other hand on the question of some CRL. A. No. 232, 217& 226 of 1997 Page 4 of 93 payment. He also stated that when Suresh Singhal shot his brother Shyam Sunder from the revolver which he took out from his pocket, he and his other two brothers moved towards him in order to save his brother Shyam Sunder. Suresh, thereupon, asked his father Pritpal Singhal to finish all the brothers. He was then grabbed by the third person, who was accompanying Suresh Singhal and his father. Pritpal Singhal as well as Suresh Singhal shot his brothers Krishan Lal and Hans Raj. On getting gunshot wounds, his brother Krishan Lal and Hans Raj ran out of the office of Lala Harkishan Dass, but, Hans Raj fell down after he had covered some distance on Rohtak road. Pritpal Singhal then asked the third person, who was holding him, to bring his gun from the car. The third person, who is alleged to be Roshan Lal, then released him and ran towards the car in order to bring the gun. He, saving himself, ran towards Bahadurgarh and met Naresh Kumar, a resident of Bahardurgarh, who was going towards Delhi on a two-wheeler and had stopped on seeing him running. He asked Naresh to take care of his brothers and went to his house in Bahadurgarh for giving information of the incident. From there, he returned to the spot.
4. Thus, the case of the prosecution is that the appellants Suresh Singhal, his father Pritpal Singhal and the CRL. A. No. 232, 217& 226 of 1997 Page 5 of 93 accused Roshan Lal, who was acquitted by the Trial Court, committed murder of deceased Shyam Sunder and Krishan Lal and also attempted to commit murder of Hans Raj, in furtherance of a common intention, which they shared with each other.
5. It is also the case of the prosecution that Ram Narayan, another brother of Hans Raj, happened to pass by the office of the informant. Seeing his brothers Krishan Lal and Hans Raj, lying there, he put both of them in his car and took them to a Nursing Home, Bahadurgarh, where he was advised to take them to Delhi. While returning to Delhi, he noticed the police officials near the office of the informant. Since his brother Krishan Lal was already dead by that time, he requested the police to shift him to their van and rushed to RML hospital with the injured Hans Raj.
6. The prosecution examined 51 witnesses in support of its case. No witness was examined in defence. The case of the prosecution is that the incident, which took place in the office of the informant, was witnessed by 7 persons viz. the informant himself, PW-3 Hans Raj, PW-4 Raj Kumar, PW-23 Subhash Chand, PW-26 Tilak Raj, PW-27 Sarovar Kumar and PW-30 Tarsem Kumar. The informant Harkishan Dass came in the witness box as PW-2 and stated that since there was CRL. A. No. 232, 217& 226 of 1997 Page 6 of 93 some dispute between Krishan Lal and his brothers and Suresh Singhal and his father, in respect of the property sold through Vijay Property Dealers, a firm of Suresh Singhal and his brothers, to a Gurdaspur party, and both the parties were known to him, he was requested to intervene and get the dispute settled. On being approached in this regard by Krishan Lal, he rang up Singhals and asked them to come to his office at Rajendra Park, Nangloi, at 4.00 PM on 4th March 1991. Gurdaspur Party came to his office, followed by Shyam Sunder, Raju, Hans Raj and Krishan Lal. Subhash, who was known to him, thereafter, came to his office. At about 5.00 PM, Suresh came there, followed by his father Pritpal Singhal and another person. As soon as Suresh entered, a conversation took place between him and Shyam Sunder, followed by a scuffle between Suresh, Krishan Lal, Shyam Sunder, Raju and Hans Raj. Suresh then took out a revolver and the shot fired by him hit Shyam Sunder. He further stated that thereupon they ran towards the back of his shop. He also stated that the accused persons had come in a white Maruti car, which was left at their place while leaving in the car belonging to Subhash, which had been parked outside his house.
7. PW-3 Hans Raj is the injured in this case. He stated CRL. A. No. 232, 217& 226 of 1997 Page 7 of 93 that he was doing property business, along with his brothers Krishan Lal, Shyam Sunder and Raj Kumar, in the name of Vijay Property Dealers. He further stated that his brother Shyam Sunder had struck a deal between Suresh Singhal and Pritpal Singhal on the one hand and Tarsem, Sarovar and Tilak Raj of Gurdaspur on the other hand, in respect of a plot in Bhairon Enclave. In the evening of 3rd March 1991, his brother Shyam Sunder told him that some altercation had taken place between him and Singhals regarding some money transactions. On 4th March 1991, he, along with Shyam Sunder, Krishan Lal and Raj Kumar alias Raju, reached the office of Lala Harkishan Dass. Tarsem, Tilak Raj and Sarovar were already sitting in the office. At about 5.15 PM Suresh Singhal, Pritpal Singh and accused Roshan Lal came there. The moment Suresh Singhal, Pritpal Singh and Roshan Lal entered the office of Lala Harkishan Dass, Suresh Singhal asked Shyam Sunder to tell him what he was saying the previous day. On hearing this, Shyam Sunder and Raj Kumar got up and asked Suresh Singhal as to whether he had come there to settle the dispute or to quarrel. Suresh Singhal thereupon said that there won‟t be any quarrel at that place but something else would happen. Suresh Singhal then took out a revolver from the pocket of his coat and fired at his CRL. A. No. 232, 217& 226 of 1997 Page 8 of 93 brother Shyam Sunder. He, Raj Kumar and Krishan Lal tried to catch hold of Suresh Singhal and when they were about to catch hold of him, he asked his father Pritpal Singhal to finish all the brothers. On this, Roshan Lal caught hold of (grappled) his brother Raj Kumar, whereas Pritpal Singhal took out a revolver from his pocket and both Suresh Singhal and Pritpal Singhal started firing on his brother Krishan Lal. He received bullets on his stomach, whereas one bullet grazed the front of his. He and Krishan Lal started running out of the office, in order to escape from the spot. He was hit by another bullet on the back of his right shoulder. He also heard Pritpal Singhal asking Roshan Lal to go and get the gun from the vehicle, and also said that the fourth brother should also not be spared. Krishan Lal fell down after coming out from the office, whereas he fell while trying to run towards Rohtak Road.
8. PW-23 Subhash Chand Mahajan stated that on 4th March 1991 at about 4.30 PM he had gone to the office of Lala Harkishan Dass on main Nangloi Road, in Fiat Car No. DIB- 2280. He parked the car in front of the office of Lala Harkishan Dass and left the key in the ignition. Lala Harkishan Dass asked him to wait for a while, since some other persons were sitting with him and he had to first talk with them. At about 5.10 PM Suresh came there along with CRL. A. No. 232, 217& 226 of 1997 Page 9 of 93 two other persons. A quarrel took place at the entrance gate of the office. People intervened to resolve the dispute and tried to separate them. In the meanwhile he heard the sound of firing and having become perplexed he ran away from the backdoor of the office of Lala Harkishan Dass.
9. PW-4 Raj Kumar is the brother of PW-3 Hans Raj. He corroborated the deposition of his brother Hans Raj and further stated that on 3rd March 1991, he, along with Shyam Sunder had gone to the house of Suresh Singhal and Pritpal Singhal at Punjabi Bagh, where some altercation had taken place between Singhals and his brother Shyam Sunder on some money transaction. Besides corroborating the version given by his brother Hans Raj, he also stated that Pritpal Singhal had asked the accused Roshan Lal to leave him and bring the gun from the vehicle so that the fourth (the witness) also did not survive. Thereupon, Roshan Lal left him and ran towards the car to bring a gun. He got a chance to escape and ran towards Bahadurgarh on Rohtak Road. One Naresh, a resident of Bahadurgarh, coming from Delhi side, on a two wheeler scooter, stopped his vehicle near him. On an enquiry made by Naresh, he told him that his brother had sustained bullet injuries and he should take care of them. He further stated that he took the scooter of Naresh and sped to his CRL. A. No. 232, 217& 226 of 1997 Page 10 of 93 house in order to inform the family members about the incident. He claimed that he came back to the spot from Bahadurgarh along with several other persons and narrated the incident to the police.
10. PW-26 Tilak Raj is one of the members of the Gurdaspur Party. He stated that around the first week of March 1991 he had gone to the office of Lala Harkishan Dass, in Nangloi in Bahadurgarh, along with Tarsem and Sarovar. A party from Bahadurgarh also came there. When they were taking tea, another party came there and thereupon a scuffle took place between one person from Bahadurgarh and one person from the party which had come later. He named Raju, Hans Raj, Krishan Lal and Shyam Sunder as the Bahadurgarh party, which was already present in the room of Lala Harkishan Dass. He was able to recognize Pritpal Singhal and Suresh Singhal amongst the persons who had come later. According to him a shooting/firing took place there and everybody was saying that Singhals had not done a good thing. He further stated that in the confusion on account of firing, he ran away from the backdoor. He also stated that the persons, who were killed in the office, were Krishan Lal and Shyam Sunder. During cross-examination, he stated that the scuffle had taken place about 2-4 paces inside the gate of the CRL. A. No. 232, 217& 226 of 1997 Page 11 of 93 office.
11. PW-27 Sarovar Kumar stated that on 4th March 1991, he along with Tarsem and Tilak Raj went to the office of Lala Harkishan Dass in Nangloi for resolving the dispute. 4-5 persons were already sitting in the office at that time. Krishan Lal, Raju, Hans Raj and Shyam Sunder came there after they had reached the office. After about 15-20 minutes, the accused Pritpal Singhal and Suresh Singhal came in the office. Immediately after their arrival, there was a scuffle between Suresh on the one hand and 3-4 brothers of Krishan Lal on the other hand. After the scuffle, Shyam Sunder cried that he had been shot at. Immediately thereafter, he along with other persons, ran out from the side gate and hid himself behind the cement bags. During cross-examination by the learned Addl.
Special PP, he admitted that there was some misunderstanding between them and Suresh Singhal and they were called to the office of Lala Harkishan Dass at 4.00 PM on 4th March 1991. He also admitted that he had a share in property No.-89, Bhairon Enclave and that original papers of this property were in the name of Pritpal Singhal and Suresh Singhal.
12. PW-30 Tarsem Kumar was examined firstly when the appellant Suresh Singhal was absconding from custody during CRL. A. No. 232, 217& 226 of 1997 Page 12 of 93 trial and then after he was arrested and sent to judicial custody. When he was examined for the second time, he stated that in the year 1991, a group of persons, including him, had purchased property No. 89, Bhairon Enclave from Daya Ram, Suresh Singhal and Pritpal Singhal through M/s Vijay Properties, partnership firm of Krishan Lal and his brothers Shyam Sunder, Raju and Hans Raj. He further stated that on 4th March 1991, at about 2.00 PM, Krishan Kumar informed him that there was some misunderstanding and requested him to come to the shop of Lala Harkishan Dass for a meeting at about 4.00 PM. He accordingly reached the office of Lala Harkishan Dass, along with Tilak Raj and Sarovar Kumar. Krishan Kumar, Hans Raj, Shyam Sunder and Raju also arrived there. Accused Suresh Singhal and Pritpal Singhal came thereafter in a Maruti car. Shyam Sunder was sitting by his side on a sofa, when he suddenly said that he had been hit by a bullet. According to the witness, he then became nervous and escaped through the backdoor. According to him, when he returned there, he found that the accused had left the Maruti car at the spot and dead body of Krishan Lal was lying there. During cross- examination by the learned Special PP, he stated that he had gone to the office of Lala Harkishan Dass under the CRL. A. No. 232, 217& 226 of 1997 Page 13 of 93 impression that the misunderstanding was in respect of property No. 89, Bhairon Enclave.
13. In his statement recorded under Section 313 of Cr.P.C. the appellant Suresh Singhal denied having entered into a deal in respect of property in Bhairon Enclave with Tarsem, Sarovar and Tilak Raj of Gurdaspur through deceased Shyam Sunder. He also denied that on 3rd March 1991 he and his father had an altercation with Shyam Sunder at their house in Punjabi Bagh. He altogether denied having come to the office of the informant on 4th March 1991. He also denied rest of the evidence which came against him and his father during trial.
14. The following facts emerge from a careful analysis of the evidence produced by the prosecution:-
(i) The appellant co-owned property No. 89, Bhairon Enclave, Delhi and he along with other co-owners of that property had entered into a transaction to sell it to PW-30 Tarsem Kumar and others, through M/s Vijay Property Dealers, a partnership firm of deceased Krishan Lal and Shyam Sunder and their brothers Hans Raj and Raj Kumar. The testimony of PW-3 Hans Raj and PW-4 Raj Kumar shows that the appellant Suresh Singhal and his father late Pritpal Singhal had CRL. A. No. 232, 217& 226 of 1997 Page 14 of 93 entered into a transaction with people from Gurdaspur with respect to the property owned by the appellant and others in Bhairon Enclave and the deal was struck through Vijay Property Dealers. The testimony of PW-3 and PW-4 in this regard finds corroboration from the deposition of PW-30 Tarsem Kumar, who was one of the purchasers of the aforesaid property. PW-26 Tilak Raj also admitted that the appellant was amongst the owners of property at Bhairon Enclave. Even PW-27 Sarovar Kumar admitted in his cross-examination that the original papers of this property, which were given to him by one Mr Sachdeva from whom he purchased a flat in it, are in the name of Pritpal Singhal and Suresh Singhal.
During cross-examination of PW-30 Tarsem Kumar no suggestion was given to him that property No. 89, Bhairon Enclave was not owned by Suresh Singhal and that they had not entered into a transaction through M/s Vijay Property Dealers to sell this property to him and his other co-purchasers. In fact this part of the deposition of Tarsem was not disputed at all in his cross-examination by the appellant Suresh Singhal. The photocopies of documents filed during trial also show that the appellant Suresh Singhal was a co-owner of property No. 89, CRL. A. No. 232, 217& 226 of 1997 Page 15 of 93 Bhairon Enclave. Even if documents are excluded from consideration, for want of their originals, the oral evidence alone is sufficient to prove this fact.
(ii) There was some dispute with respect to the transaction of sale of Bhairon Enclave property and PW-2 Lala Harkishan Dass was approached to resolve that dispute and accordingly he had called the concerned parties viz. the appellant Suresh Singhal and his father late Pritpal Singhal, deceased Krishan Lal, Shyam Sunder, Hans Raj, etc., who had brokered the deal, and the purchasers Tarsem Kumar and others, in his office, on 4th March 1991. The testimony of PW-3 Hans Raj and PW-4 Raj Kumar in this regard finds corroboration not only from the informant Lala Harkishan Dass but also from PW-26 Tilak Raj, PW-
27 Sarovar Kumar and PW-30 Tarsem Kumar. PW-2
Lala Harkishan Dass being an outsider to the
transaction, there could have been no reason for him to make a false statement in this regard. In fact, during his cross-examination, he specifically stated that after Krishan Lal came to him on 2nd March 1991 with a request to get the matter settled, he telephoned Suresh Singhal and his father in his presence and asked them to CRL. A. No. 232, 217& 226 of 1997 Page 16 of 93 come to his shop at 4.00 PM on 4th March 1991. During his cross-examination, no suggestion was given to him that he had not called the appellant Suresh Singhal and his father late Pritpal Singhal to his shop on 4th March 1991, though it was suggested to him that no meeting had taken place in his office. The appellant does not claim any enmity between him and the informant. In fact the informant claimed in his examination-in-chief itself that a scuffle had ensued between Suresh Singhal, Krishan Lal, Shyam Sunder, Raju and Hans Raj, though no such statement was made by him to the police, which clearly indicates that this witness was not at all inimical to the appellant. Similarly, the appellant does not claim that PW-26 Tilak Raj, PW-27 Sarovar Kumar or PW-30 Tarsem Kumar harboured any ill-will towards him or his father and that is why they had supported PW-3 Hans Raj and PW-4 Raj Kumar in this regard. Rather, the dispute between the appellant and Gurdaspur Party seems to have been resolved by the time these witnesses were examined in Court, as is evident from the fact that not only the documents in respect of property No. 89, Bhairon Enclave had been executed in their favour, possession of the property had also been delivered to CRL. A. No. 232, 217& 226 of 1997 Page 17 of 93 them. In fact, it was vehemently contended by the learned counsel for the respondent State that it was because of the settlement between the appellant and the purchasers that they did not fully support the case of the prosecution, when they came in the witness box. Though according to PW-3 Hans Raj, the dispute between the parties was with respect to execution of title deeds and it has come in evidence that the deeds in favour of Gurdaspur Party was later on executed, we need not go into the precise nature of the dispute. What is material is that there had occurred a dispute, which had remained unresolved, and deceased Krishan Lal had approached PW-2 Lala Harkishan Dass for its resolution and all the parties were called to his office on 4th March 1991.
(iii) Gurdaspur Party comprising PW-26 Tilak Raj, PW- 27 Sarovar Kumar and PW-30 Tarsem, as well as deceased Krishan Lal and Shyam Sunder, injured Hans Raj and possibly their brother PW-4 Raj Kumar had come to the office of the informant on 4th March 1991 at about 4-5 PM. This fact is proved by the informant Lala Harkishan Dass, PW-3 Hans Raj, PW-4 Raj Kumar, PW-26 Tilak Raj, PW-27 Sarovar Kumar and PW-30 Tarsem. As noted earlier, they had come to the CRL. A. No. 232, 217& 226 of 1997 Page 18 of 93 office of the informant Lala Harkishan Dass for resolution of some disputes, which had arisen in respect of property No. 89, Bhairon Enclave, co-owned by the appellant Suresh Singhal and his father late Pritpal Singhal and sold through M/s Vijay Property Dealers, a partnership firm of deceased Shyam Sunder and Krishan Lal and their brother.
(iv) The appellant Suresh Singhal, accompanied by two other persons, had come to the office of Lala Harkishan Dass at about 5.00 PM and Gurdaspur Party as well as the deceased Krishan Lal and his brother were already present in the office of the informant at that time. This has been testified by PW-2 Lala Harkishan Dass, PW-3 Hans Raj, PW-4 Raj Kumar, PW-23 Subhash Chand Mahajan, PW-26 Tilak Raj, PW- 27 Sarovar Kumar and PW-30 Tarsem. All these witnesses except PW-23 identified late Pritpal Singhal as the second person who had accompanied the appellant Suresh Singhal to the office of Lala Harkishan Dass on that day. Roshan Lal, who was acquitted by the trial court, was identified by some of them as the third person who had accompanied the appellant Suresh Singhal. Though in his statement under Section 313 of Code of CRL. A. No. 232, 217& 226 of 1997 Page 19 of 93 Criminal Procedure, the appellant Suresh Singhal denied having gone to the office of Lala Harkishan Dass on that day, denial by him cannot be accepted considering the overwhelming evidence of the eye witnesses. In fact Suresh Singhal denied even the transaction entered into by him and other co-owners of the property for sale of property No. 89, Bhairon Enclave to Gurdaspur Party as well as his having been called by Lala Harkishan Dass to his office on that day, for resolution of dispute in respect of the aforesaid property.
(v) During cross-examination of witness, it was suggested to them that there was a scuffle between the appellant Suresh Singhal on one hand and deceased Shyam Sunder and Krishan Lal and their brother Hans Raj on the other hand. It was also suggested to them that Suresh was beaten by them and an attempt was made to strangulate him. These suggestions contain an admission that Suresh had come to the office of PW2 on that date.
(vi) It would be pertinent to note here that car No. DL4C 0532 was seized by the police from outside the office of Lala Harkishan Dass on that day vide memo Ex. PW4/D. The Registration Certificate Ex.P-5, Insurance Certificate Ex.P-4 and Driving Licence Ex.P-3 were found in the car CRL. A. No. 232, 217& 226 of 1997 Page 20 of 93 when it was seized by the police. The Registration Certificate as well as Insurance Certificate of the car are in the name of the wife of the appellant Suresh Singhal whereas the Driving Licence is in his own name. There is no explanation from the appellant Suresh Singhal as to how and why the car owned by his wife was found parked outside the office of the informant on that day. He also does not dispute that this car was registered in the name of his wife and the Driving Licence Ex.P-3 was got issued by him. In these circumstances, seizure of the aforesaid car from outside the office of Lala Harkishan Dass corroborates the testimony of the witnesses to the effect that the appellant Suresh Singhal had come to the office of Lala Harkishan Dass on that day in the aforesaid car.
(vii) The appellant Suresh Singhal as well as his father late Pritpal Singhal were armed with revolvers on that day. This has been testified by the injured Hans Raj as well as his brother Raj Kumar. So far as the appellant Suresh Singhal is concerned, PW-2 Lala Harkishan Dass also corroborated their deposition in this regard, when he specifically stated in his examination-in-chief that Suresh Singhal took out a revolver and fired at Shyam Sunder. It is, therefore, difficult to dispute that the CRL. A. No. 232, 217& 226 of 1997 Page 21 of 93 appellant Suresh Singhal and his father were armed with revolvers when they came to the office of Lala Harkishan Dass on 4th March 1991.
(viii) Out of the persons present in the office of Lala Harkishan Dass on that day, no one other than the appellant Suresh Singhal and his father late Pritpal Singhal was armed with a fire weapon. No witness says so and even the appellant Suresh Singhal does not claim in his statement under Section 313 of Cr.P.C. or during cross-examination of the witness that out of the persons present in the office of Lala Harkishan Dass any person other than him and his father was armed with a weapon. In fact his case is of a total denial of the entire case setup by the prosecution including his going to the office of PW 2 on that date. Considering the evidence produced by the prosecution and other facts and circumstances of the case, we see no reason to disbelieve that out of the persons present in the office of Lala Harkishan Dass only the appellant Suresh Singhal and his father were armed with fire arms.
(ix) Late Krishan Lal and Shyam Sunder as well as the injured Hans Raj had sustained gunshot injuries in the office of Lala Harkishan Dass at about 5.00 PM on CRL. A. No. 232, 217& 226 of 1997 Page 22 of 93 4th March 1991. Besides the testimony of eye witnesses, the fact that blood was found in the office as well in the open space outside the office of Lala Harkishan Dass and was lifted from there by the Investigating Officer, leaves no reasonable doubt as regards the place where injuries were sustained by these persons on that day.
15. Thus, the prosecution has been able to prove beyond reasonable doubt that the appellant Suresh Singhal co-owned property No.89 Bhairon Enclave and had entered into a transaction, through M/s Vijay Property Dealers, to sell this property to Gurdaspur Party comprising PW-30 Tarsem and others, and since some dispute had arisen in respect of that transaction, late Krishan Lal had approached the informant Lala Harkishan Dass for a resolution of that dispute and accordingly the complainant party comprising deceased Krishan Lal and his brothers, Gurdaspur Party comprising PW 30 Tarsem and others as well as the appellant Suresh Singhal and his father late Pritpal Singhal were called by Lala Harkishan Dass to his office on 4th March 1991 at about 4:00- 5:00 PM. The prosecution has further been able to prove that the appellant Suresh Singhal as well as his father late Pritpal Singhal were armed with revolvers when they came to the office of the informant. It has also been proved that a firing CRL. A. No. 232, 217& 226 of 1997 Page 23 of 93 had taken place in the office of the informant on that day and deceased Krishan Lal as well as his brother Hans Raj sustained gunshot injuries in the office of the informant at about 5:00 PM on that day and succumbed to those injuries. It has further been proved that injured Hans Raj also had sustained gunshot injuries in the very same incident, though he fortunately survived the deadly attack on him. Since no one other than the appellant Suresh Singhal and his father were armed with a fire weapon when the firing took place in the office of Lala Harkishan Dass, it is only the appellant Suresh Singhal and/or his father late Pritpal Singhal who could be responsible for the firing resulting in the murder of late Krishan Lal and Shyam Sunder and serious injuries to their brother Hans Raj. According to PW-3 Hans Raj and PW- 4 Raj Kumar, fire arms were used by both Suresh Singhal and his father Pritpal Singhal. The informant Lala Harkishan Dass specifically stated in his examination-in-chief that it was the appellant Suresh Singhal who had taken out a revolver and shot Shyam Sunder in his office, though in his cross- examination he claimed that it was his guess that the bullet which hit Shyam Sunder, had been fired by the appellant Suresh Singhal. A perusal of the postmortem report of Krishan Lal and Shyam Sunder and MLC of Hans Raj would CRL. A. No. 232, 217& 226 of 1997 Page 24 of 93 show that as many as seven shots were fired during this incident. A revolver does not contain more than six bullets. The inevitable conclusion therefore is that more than one weapon was used in the office of Lala Harkishan Dass. It is nobody‟s case that either Suresh Singhal or his father Pritpal Singhal was carrying two revolvers. This is also not the case of anyone, including the appellant Suresh Singhal, that all the gunshots which hit deceased Krishan Lal and Shyam Sunder and the injured Hans Raj were fired by late Pritpal Singhal. In these circumstances, we see no reason to disbelieve the deposition of Hans Raj that the appellant Suresh Singhal had used a fire arm in the office of Lala Harkishan Dass on that day. He was emphatic in saying that it was the shot fired by the appellant Suresh Singhal which had hit his brother late Shyam Sunder. It is nobody‟s case that the shot which hit deceased Shyam Sunder was fired by late Pritpal Singhal. In these circumstances, we have no hesitation in agreeing with the conclusion reached by the trial court that it was the appellant Suresh Singhal who had fired the deadly shot which hit deceased Shyam Sunder in the office of Lala Harkishan Dass on that day. He, therefore, is definitely responsible for causing the death of late Shyam Sunder.
16. As regards the shots fired at late Krishan Lal and the CRL. A. No. 232, 217& 226 of 1997 Page 25 of 93 injured Hans Raj, in our view, it is immaterial as to who received the gunshot fired by the appellant Suresh Singhal and who received the gunshot fired by his father late Pritpal Singhal. Since, both Suresh Singhal and Pritpal Singhal were armed with fire weapons, there was relationship of son and father between them and both of them fired during the incident, it can hardly be disputed that both of them shared a common intention to commit murder of Shyam Sunder, Krishan Lal and Hans Raj. It is quite probable, as concluded by the trial court, that they had not preplanned the murder by the time they came to the office of Lala Harkishan Dass but, it can hardly be disputed that a common intention had developed between them, in the office of Lala Harkishan Dass, to commit murder of Shyam Sunder, Krishan Lal and Hans Raj. That they wanted to commit murder only of Krishan Lal, Shyam Sunder and Hans Raj is also evident from the fact that no one other than these three brothers received even a single gunshot injury though at least ten persons were present in the office of Lala Harkishan Dass at that time. Had Suresh Singhal and his father late Pritpal Singhal fired indiscriminately, at least one shot would have hit some other person present in the room or some other place such as a wall or a piece of furniture in that room. It cannot, to our minds, CRL. A. No. 232, 217& 226 of 1997 Page 26 of 93 be just incidental that all the gunshot injuries were received only by these three brothers, no bullet hit any other person present in the room and no bullet hit any wall or object in that room.
17. The case of the prosecution is that the appellant Suresh Singhal was arrested in the Court complex of Moga whereas his father late Pritpal Singhal was arrested at the Airport. Both of them were absconding at that time and the police was searching for them. Despite that, they chose to visit such busy places and that too armed with fire arms. The reasonable inference which can be drawn in such circumstances is that they were deliberately carrying their licensed fire arms with them, since they knew that in the event of their arrest those fire arms will be seized and sent to the ballistic expert for opinion as to whether these were the same weapons which were used during the incident on 4th March 1991 or not, and since the fire arm being carried by them being different from the fire arms used during the incident, the report of the ballistic expert was likely to be in their favour and that precisely was the reason they were carrying these fire arms with them though ordinarily a person whom the police was searching in a murder case will avoid a place like a Court complex or Airport particularly when he is also carrying a fire CRL. A. No. 232, 217& 226 of 1997 Page 27 of 93 arm with him.
18. Referring to the unnatural conduct of PW-4 Raj Kumar, it has been contended by the learned counsel for the appellant Suresh Singhal that the presence of this witness, at the time of occurrence, is highly doubtful. This witness is the brother of deceased Krishan Lal and Shyam Sunder and the injured Hans Raj. He claims to have witnessed the entire incident. He also knew the assailants. Despite the fact that two of his brothers were shot dead and the third was seriously injured in his presence, no attempt was made by him to save them and he fled from the spot, leaving them either dead or seriously injured. He neither stayed on the spot to take his brothers to the hospital nor did he inform the police even after he had come far away from the place of occurrence. It was also pointed out that though his two brothers were shot dead and the third one was seriously injured, not a scratch is alleged to have been received by this witness. The contention is that if the appellant and his father intended to kill the deceased Krishan Lal and his brothers, as the case of the prosecution is, there was no reason for them to spare this witness, despite the fact that he was unarmed and was not in a position to offer any resistance to the assailants. In our view, the conduct of this witness in fleeing from the spot, instead of staying there CRL. A. No. 232, 217& 226 of 1997 Page 28 of 93 and later taking his brothers to hospital by itself, does not by itself necessarily justify the inference that he had not witnessed the incident which took place on that day. Both, the appellant Suresh Singhal as well as his father late Pritpal Singh, were armed with deadly weapons and were selectively targeting late Krishan Lal and his brothers. This witness was unarmed and, therefore, not in a position either to save his brothers or to defend himself. Therefore, his fleeing away from the spot cannot be said to be unnatural actuated since it would be for fear for his own life and actuated by a feeling of self-preservation, particularly when he was not in a position to save his brothers from the assailants. In Hari Singh M. Vasava vs. State of Gujarat: JT 2002 (2) SC 333, the witness did not try to save the deceased from the accused, who was armed and had inflicted injuries on the deceased. It was held by the Supreme Court that merely because the witness did not intervene at the time when the appellant was inflicting knife blows on the person of the deceased could not be a ground to discard his testimony.
19. We, however, find it quite unnatural that even after coming to a safe distance from the place of occurrence, this witness did not make an attempt to inform the police about this incident. At that time, this witness did not know whether CRL. A. No. 232, 217& 226 of 1997 Page 29 of 93 any or all of his brothers had survived the deadly attack on them. In the natural course of human conduct, a brother placed in such circumstances, is likely to inform the police at the very first opportunity so that the police may reach the spot and at least take his brothers to the hospital for providing medical aid to them. However, this is also a fact that the presence of this witness, at the time of incident, has been confirmed not only by his brother PW-3 Hans Raj, but also by the informant Lala Harkishan Dass, who specifically, stated that four brothers, namely, Shyam Sunder, Hans Raj, Krishan Lal and Raju, had come to his office on that day. PW-26 Tilak Raj named Hans Raj, Shyam Sunder, Krishan Lal and Raju as the Bahadurgarh Party, which had come to the office Lala Harkishan Dass on that day. PW-30 Tarsem Kumar also stated that Hans Raj, Shyam Sunder, Krishan Lal and Raju had reached the office of Lala Harkishan Dass, after he had reached there alongwith Tilak Raj and Sarovar Kumar. PW-2 Lala Harkishan Dass, PW-26 Tilak Raj and PW-30 Tarsem Kumar cannot be said to be inimical to the appellant. All these witnesses were cross-examined by the prosecution and none of them supported the prosecution in toto. We, however, need not delve further into this issue, since we are of the view that even if the testimony of Raj Kumar is excluded from the CRL. A. No. 232, 217& 226 of 1997 Page 30 of 93 consideration, the other evidence, produced by the prosecution, is sufficient to prove the guilt attributed to the appellant.
20. As regards PW-7 Ram Narayan, it was submitted that there could have been no reason for this witness to shift the dead body of Krishan Lal to the police vehicle, as claimed by him, since he would be wasting precious time in shifting the dead body of Krishan Lal to police vehicle and delaying medical aid to the injured Hans Raj, without any useful purpose. We also note that though this witness claims that he had taken Hans Raj and Krishan Lal first to a Nursing Home in Bahadurgarh, no witness from the Nursing Home has been examined to confirm his testimony. But, nothing really turns on the testimony of this witness since he did not witness the incident of shooting.
21. The testimony of PW-23 Subhash Chand Mahajan has been assailed on the ground that there was no reason for him to leave the key of his car in its ignition. We, however, do not find anything unusual in it. It has come in the testimony of the informant Lala Harkishan Dass that this was not the first visit of this witness to his office. The open space, where the car was parked by him, was not a part of the main road and was used for parking of vehicles not only by him, but also CRL. A. No. 232, 217& 226 of 1997 Page 31 of 93 by others, including the appellant Suresh Singhal, whose car was later seized by the police from that place. Since Subhash Chand Mahajan had come to a place familiar to him and the car was parked in the open space abutting the office, there was nothing unnatural in the witness, leaving the key of the car in the ignition either by mistake or out of a feeling that his car was safe and secure at that place. The presence of this witness, at the time of incident, has been admitted by the informant Lala Harkishan Dass. His Car DIB-2280 was later seized from Paschim Vihar, where it was found abandoned on 05th March, 1991, by PW-18 SI Nathu Ram, who had reached there on being informed by a PCR van that a car was parked there. According to PW-18, this information was conveyed to all the SHOs and ACPs and other officers and the car was also checked by the Crime Team before it was seized vide memo Ex. PW-18/A. Register No.19 was also brought by this witness on the direction of the Trial Court, and it was found that an entry had been made in the register regarding seizure of this car. The seizure of the car was not disputed during cross- examination of this witness. In these circumstances, we see no reason to disbelieve the presence of this witness at the time of this incident.
22. It was contended by the learned counsel for the CRL. A. No. 232, 217& 226 of 1997 Page 32 of 93 appellant Suresh Singhal that if there was some dispute in respect of the alleged transaction of sale of property No.59, Bhairon Enclave, as claimed by the prosecution, the aggrieved party would be the purchasers and not the sellers since the consideration for the sale of the property had already been received by the sellers and, therefore, the appellant had no reason to commit murder of Krishan Lal and Shyam Sunder. We, however, are not impressed with the argument. No suggestion was given to PW-26 Tilak Raj, PW-27 Sarovar Kumar and PW-30 Tarsem Kumar that it were they who had killed Shyam Sunder and Krishan Lal and caused gunshot injuries to PW-3 Hans Raj. There is no evidence or even an allegation that any member of Gurdaspur Party was armed with a fire arm when they came to the office of the informant. Moreover, had murders been committed by one or more members of Gurdaspur Party, PW-3 Hans Raj and PW-4 Raj Kumar would have been the last persons to exonerate them and implicate the appellant Suresh Singhal and his father Pritpal Singhal. Hans Raj had lost his two brothers and was severely injured. He still carries some bullets inside his body. We, therefore, do not believe that they would shield the real offender and implicate innocent persons for such heinous acts. The contention is, therefore, liable to be out rightly CRL. A. No. 232, 217& 226 of 1997 Page 33 of 93 rejected.
23. It was also contended by the learned counsel for the appellant that the prosecution has not given the genesis of the incident since no witness told the Court as to what exactly had transpired in the meeting, which took place on 03rd March, 1991 at the Punjabi Bagh residence of appellant. Though, according to PW-3 and PW-4, the appellant Suresh Singhal, on entering the office of informant, asked the deceased Shyam Sunder to tell him what he was saying the previous day, they did not tell the Court as to what were the offensive words, used by Suresh Singhal on 03rd March, 1991, which provoked the appellant Suresh Singhal to the extent of saying on 4th March, 1991 that there will not be any quarrel, but something else would happen at that place and follow it up by taking out a revolver and firing at Shyam Sunder. No doubt, neither of these witnesses told the Court as to what exactly were the offensive words, which had hurt the appellant Suresh Singhal on 03rd March, 1991. But, PW 3 Hans Raj does not claim to be a witness to the altercation of 03rd March, 1991 whereas during cross-examination of PW-4 Raj Kumar, who claims to have gone to the house of the appellant Suresh Singhal, in the morning of 03rd March, 1991, alongwith deceased Shyam Sunder, he was not asked as to what exactly had transpired at CRL. A. No. 232, 217& 226 of 1997 Page 34 of 93 the residence of Suresh Singhal on 03rd March, 1991 and what were the words used on that day which Suresh Singhal found to be so offensive. Since this witness was not given an opportunity to elaborate the offensive words to which the appellant Suresh Singhal referred while entering the office of informant on 4th March, 1991, no adverse inference can be drawn against him for not sharing those words with the Court. In our view, considering the ocular testimony of the witnesses, particularly the deposition of PW-3 Hans Raj, corroborated though partly by PW-2 Lala Harkishan Dass, PW-26 Tilak Raj and PW-30 Tarsem Kumar, it is immaterial as to what transpired between the parties on 03rd March, 1991 and what were the alleged offensive words used on that day. We also note that in his statement, recorded on 04th March, 1991, PW- 4 Raj Kumar did not tell the police that on entering the office of PW-2 Lala Harkishan Dass, the appellant Suresh Singhal had asked his brother Shyam sunder to speak what he was saying the previous day. Therefore, this part of the deposition of the witness may either be an elaboration of the altercation, which took place between the appellant Suresh Singhal and deceased Shyam Sunder in the office of PW-2 Lala Harkishan Dass on 04th March, 1991 or it may be an attempt to improve his previous statement in which case it may altogether be CRL. A. No. 232, 217& 226 of 1997 Page 35 of 93 excluded from consideration. In either case, it makes no difference to the case of the prosecution on its merits.
24. The learned counsel for the appellant Suresh Singhal has referred to Chanan Singh vs. State of Punjab 1979(4) SCC 399, State of Karnataka vs. Siddappa Basanagouda Patil & Anr. 1990 (Supp) SCC 257, Ghurey Lal vs. State of Uttar Pradesh 2008 (1) SCC 450 and State of U.P. vs. Madan Mohan & Ors. 1989(3) SCC 390, in support of his contention that if the genesis and origin of the occurrence is withheld by the prosecution, that creates a doubt regarding truthfulness of the case set up by the prosecution, the benefit of which must ensue for the benefit of the accused. In the case before us, it cannot be said that the genesis of the incident has not been disclosed by the prosecution to the Court. It has come in evidence that the appellant Suresh Singhal was co-owner of Property No. 89, Bhairon Enclave which he and other co- owners had sold that property to PW 30 Tarsem Kumar and others and a dispute had arisen between the parties with respect to the transaction relating to that property and all the parties were called by PW 2 to his office for the resolution of that dispute. PW 3 and PW 4 have also shared with court the precise words used by the appellant Suresh Singhal on the day of this incident, though these words were not disclosed to CRL. A. No. 232, 217& 226 of 1997 Page 36 of 93 the police at the earliest opportunity and were disclosed at a later date. But, it cannot be said that the genesis or origin of the incident was not disclosed by them to the police or to the court. In any case, since neither any plea of acting in self defence has been taken by the appellant Suresh Singhal nor such a case is otherwise made out from the evidence produced during trial, the decisions relied upon by the learned counsel for the appellant do not apply to the facts of the case before us.
The learned counsel for the appellant Suresh Singhal has referred to Munshi Ram vs. Delhi Administration AIR 1968 SC 702 and Darshan Singh vs. State of Punjab & ors. 2010 (2) SCC 333 in support of his contention that even if the plea of self defence is not set up by the accused it is open to the court to consider such a plea, if the same arises from the material placed before it. There is no quarrel with the proposition of law laid down in these cases. But, we cannot make out any case of self defence from the evidence produced during trial and other facts and circumstances of the case.
25. Referring to the report of FSL, Madhuban, which opined that the bullets, used during this incident, were not fired either from the weapon, seized from the appellant Suresh Singhal or from the weapon seized from his father late Pritpal CRL. A. No. 232, 217& 226 of 1997 Page 37 of 93 Singhal, it was contended by the learned counsel for the appellant that the prosecution has failed to connect the weapon recovered from the appellants with the crime committed in this case and has not recovered the weapons which were actually used for committing murder of Shyam Sunder and his brother Krishan Lal and attempting to commit murder of their brother Hans Raj. No doubt, the report of FSL, Madhuban does mean that the weapons recovered from the appellant and his father were not used in the office of Lala Harkishan Dass on 04th March, 1991, but, that by itself does not lead to the conclusion that the appellant Suresh Singhal and/or his father Pritpal Singhal had not used any fire arm on that day. The facts and circumstances of this case, as discussed in the preceding paragraphs, leave no reasonable doubt that both of them were armed with revolvers and had used them in the office of Lala Harkishan Dass on that day and Shyam Sunder and his brother Krishan Lal succumbed to the injuries sustained by them at their hands, whereas their brother Hans Raj was seriously injured by them. The only inference which, in the facts and circumstances of this case, can be drawn from the report of FSL, Madhuban is that some weapons, other than the weapons seized by the police from the appellant Suresh Singhal and his father Pritpal Singhal were CRL. A. No. 232, 217& 226 of 1997 Page 38 of 93 used in the office of informant on 4th March, 1991 and since they were arrested much after the incident, the weapons actually used by them were either destroyed or damaged by them, utilizing the time and opportunities available to them during this period. It is not necessary that the weapon of offence should be recovered before a person can be convicted for committing murder or causing injuries, using that weapon. If the Court insists on the recovery of weapon of offence, any offender may get away with the crime committed by him simply by destroying, damaging or parting with the weapon used by him. In Rajender and others vs. State of Haryana & Anr.(2005) 9 SCC 784, the weapon of offence was not recovered by the police from the possession of any of the appellants. Supreme Court, however, held that this could not be a ground to throw out the prosecution case, when the same has been otherwise found to be truthful by credible evidence. In Krishna Gope vs. State of Bihar (2003) 10 SCC 45, the fire arm alleged to have been used by the appellant was not recovered. The Supreme Court refused to give benefit to the appellant on the ground that the weapon of offence could not be recovered from him and observed that he had succeeded in concealing the weapon before the police could search his house. Similar view was taken in Umar Mohammad and ors. CRL. A. No. 232, 217& 226 of 1997 Page 39 of 93 vs. State of Rajasthan (2007) 14 SCC 711. In Ambika Prasad & Ors. vs. State and Ors. 66 (1997) DLT 401 (DB), a judgment relied upon by the learned counsel for the State, the weapon of offence alleged to have been recovered at the instance of the appellant was not found to be the weapon used for committing the offence. It was argued for the appellant that in the absence of recovery of weapon of offence by the police, it could not be said that the shot which resulted in death had been fired by the appellant. Rejecting the contention a Division Bench of this Court held as under:
"Next it was argued for accused Ram Chander that the gun allegedly recovered at his instance was not used as the weapon of offence as per the CRSL report, therefore, I cannot be said that he fired the shot which resulted in the death of Virender. We are not impressed by this argument. This could at best mean that the weapon of offence remained untraced. There can be no dispute that Virender Singh died as a result of gunshot injury. This is established by the medical evidence on record to which we have already referred. By getting a different gun recovered, accused Ram Chander may be trying to mislead the prosecution. Failure to recover the weapon of offence need not necessarily result in acquittal of an accused."
26. The learned counsel for the appellant, in support of his contention that if the report of ballistic expert does not support the case of the prosecution benefit must go to the CRL. A. No. 232, 217& 226 of 1997 Page 40 of 93 accused, has referred to the decisions in Achhaibar Pandey vs. State of U.P. 1990 Crl. L.J. 958, Puran Singh vs. State of Uttranchal 2008(3) SCC 795 and Brij Pal Singh vs. State of M.P. 2003(11) SC 219. However, none of these judgments helps the appellant since, we are of the view that the weapons used by the appellant Suresh Singhal and his father were different from the weapons which were later seized by the police from them and were sent to FSL Madhuban. We would like to say here that in our view, no witness can ordinarily identify a firearm used in his presence, unless it had some distinct or peculiar shape, design or other feature, which creates a lasting impression in his mind, about the identity of that weapon and enables him to identify it at a later date. No such distinctive mark, shape or feature has been claimed by PW 3 or PW 4 in respect of the revolver used in their presence on 4th March, 1991. Hence, even if some witness claimed the weapons seized from the appellant Suresh Singhal and his father to be the weapons used in this case, such a testimony needs to be excluded from consideration.
27. It was also contended by the learned counsel for the appellant that the version of the incident given by PW-3 Hans Raj and PW-4 Raj Kumar is doubtful since according to them, deceased Krishan Lal as well as injured Hans Raj had used the CRL. A. No. 232, 217& 226 of 1997 Page 41 of 93 front exit while coming out of the office of Lala Harkishan Dass, despite the fact that the appellant Suresh Singhal was present there and was in a position to cause more injuries to them, whereas the other persons, present in the room, had used the rear exit in the office of Lala Harkishan Dass. As noted earlier by us, deceased Krishan Lal and Shyam Sunder and the injured Hans Raj were selectively targeted while firing gunshots. Considering the atmosphere of fear which prevailed in the office of the informant at that time, the targets of the attack, particularly when they were fatally or seriously injured could not have been in such a disposition that they would select the door they want to exit from to save their lives. We cannot be oblivious to the fact that the entire incident was over within a short time, as stated by the witnesses. There is no evidence to show that any of these brothers had earlier visited the office of Lala Harkishan Dass and was aware of the rear exit used by the informant and other persons, present in the room. The appellant Suresh Singhal was not the only person using a fire arm at that time. His father Pritpal Singhal, who was present in the room, was also firing simultaneously. Hence, there was an apprehension of the victims becoming targets of the shots fired by late Pritpal Singhal. Also, in case, victims were not aware of the rear exit, they had no option, but CRL. A. No. 232, 217& 226 of 1997 Page 42 of 93 to use the front entrance, which they had used while entering the office. Moreover, since the rear entrance was at some distance, they could have been targeted from behind had they tried to escape, using that door. The front door was the nearest exit available to them and the natural human instinct, at such a time, is to look for the nearest point of exit. Therefore, use of the front door, which is otherwise established from the fact that blood was found in the open space outside the office of Lala Harkishan Dass, does not, in any manner, impeach the testimony of eye-witnesses, particularly of Hans Raj, whose presence, at the time of occurrence, cannot be disputed.
28. During the course of arguments, the deposition of PW 3 Hans Raj was assailed before us on the ground that though he was conscious on 4th March, 1991, as recorded in his MLC, no statement was given by him to the police on that day. We, however, find no merit in the challenge. Though an endorsement on the MLC indicates that no history of unconsciousness, vomiting etc. was given at the time he was brought to the hospital that, in our view, by itself does not mean that he was fit to give a statement to the police at that time. No witness told the Court that Hans Raj was fit to make a statement, when he was brought to the hospital. He was CRL. A. No. 232, 217& 226 of 1997 Page 43 of 93 brought to the hospital at about 6:40 p.m., as noted in the MLC Ex. PW 41/A. Vide endorsement recorded on the same day at 7:25 P.M. he was declared unfit for statement. The endorsement dated 5th March, 1991 shows that he was unfit for making statement on that date. There is another endorsement made at 11:00 P.M. on 6th March, 1991 declaring him unfit for any form of statement. Dr Kulbhushan Goel, who prepared the MLC Ex. PW 41 /A, came in the witness box as PW 4 and stated that on 4th March, 1991, the injured was not in a position to give particulars regarding his name, parentage and address, because of his injuries. If Hans Raj was not in a position even to give his name, parentage and address, it cannot be said that he was in a position to give a narration of the incident in which he was injured. It was only on 9th March, 1991 that this witness was declared fit for statement by PW 51 Dr Dinesh Suman. His statement was recorded by the police on the same day. We, therefore, find no delay in recording of his statement.
29. It was also contended by the learned counsel for the appellant Suresh Singhal that the FIR was a manipulation and an afterthought since PW 10 SI Bhoop Singh had reached the shop of the informant Lala Harkishan Dass at about 5:40 or 6:00 P.M., whereas the Rukka to the police station was sent CRL. A. No. 232, 217& 226 of 1997 Page 44 of 93 only at 7:30 P.M.
30. According to SI Bhoop Singh, when he left the police station he did not have instructions to carry out any proceedings since the SHO was to reach the spot. According to PW 35 Inspector D.V. Singh, though the informant was present in his shop when he reached there, he (the informant) was in a state of breathlessness and was upset. He, therefore, sought some time to compose. When the SHO Inspector R.S. Dahiya reached the spot from Deen Dayal Upadhyay Hospital, this witness told him about the state of mind of the informant and thereafter the statement of Lala Harkishan Dass was recorded by the SHO, in his presence. We need to appreciate that the informant Lala Harkishan Dass who was an elderly person, had witnessed a serious incident of shooting in his office just a short while ago and the persons who indulged in firing as well as the victims of the firing, were his invitees. It was, therefore, quite natural that he had got upset on witnessing the incident and, therefore, needed some time to compose himself. It must have taken some time for the Investigating Officer to record the statement of the informant. Since the Rukka was sent to the police station at about 7:30 P.M. and the FIR was registered immediately thereafter, we find no delay in registration of the FIR. According to PW 50 CRL. A. No. 232, 217& 226 of 1997 Page 45 of 93 Shri S.K. Kaushik, who was the Metropolitan Magistrate of Police Station Nangloi at the relevant time, a copy of the FIR was received by him at 9:00 P.M. on 4th March, 1991 and he made endorsement Ex. PW 50/A on the copy of the FIR Ex. PW 32/F. It was pointed out by the learned counsel for the appellant Suresh Singhal that this witness had noted the time as 9:00 A.M. and not 9:00 P.M., on the endorsement made by him on the copy of the FIR, which indicates that the copy of the FIR was received by him at 9:00 A.M. on the next date and not at 9:00 P.M. on 4th March, 1991. We are unable to accept the contention. The witness had noted not only the time but also the date of receipt of the copy of FIR, in the endorsement made by him. Since the incident took place not before 5:00 P.M. on 4th March, 1991, there could be no question of the witness receiving a copy of the FIR at 9:00 A.M. on that date. Obviously, there was an error in writing A.M. instead of P.M. on the endorsement made by the witness. It would be pertinent to note here that this witness was not cross- examined by accused persons despite opportunity given to them and, therefore, his deposition to the effect that he received the copy of the FIR at 9:00 P.M. on 4th March, 1991, has gone virtually unchallenged.
31. It was also pointed out by the learned counsel for the CRL. A. No. 232, 217& 226 of 1997 Page 46 of 93 appellant Suresh Singhal that the gist of the FIR was not recorded in the Daily Diary of the police station as required by Punjab Police Rules which indicates that the FIR was ante timed and that is why its gist was not recorded in the Daily Diary, which is a document incapable of manipulation. We, however, are not inclined to accept the argument considering the fact that the copy of the FIR was received by the concerned Metropolitan Magistrate at 9:00 P.M. on the same date, and that rules out any reasonable possibility of a colored version having been introduced therein at a later point of time. We also note that during the course of arguments before the trial court it was contended that registration of FIR was delayed till arrival of PW 4 Raj Kumar on the spot. As rightly held by the learned Trial Judge, had the intention been to wait till arrival of PW 4 Raj Kumar to the office of the informant, the FIR would have contained version of the whole incident and not only a part of the incident. The fact that the FIR contains the version only up to the time the informant escaped from the rear door after a shot was fired on Shyam Sunder clearly shows that the Investigating Officer did not manipulate or doctor the FIR.
32. The learned counsel for the appellant Suresh Singhal has relied upon the decision of this Court in Lala Ram & Anr. CRL. A. No. 232, 217& 226 of 1997 Page 47 of 93 v. State: 36(1988) DLT 8 where it was found that substance of the statement made by the complainant Babu Ram to SI Dharampal on the basis of which an FIR was registered at the police station was not entered in the Daily Diary inasmuch as it did not give the name of the accused nor the names of witnesses or any other details in regard to the occurrence and this fact was admitted by PW 8 Jaipal Singh during his cross- examination. In these circumstances, it was observed that the entry made in the Daily Diary did not comply with the requirement of section 154 of Cr.P.C. and Rule 24.1 of the Punjab Police Rules. It was further observed that the failure to enter the substance of the FIR in the Daily Diary was indicative of the fact that when the said entry was made, full facts in regard to the occurrence were not known.
The purpose of the requirement to reduce the substance of the information in the Daily Diary is to ensure that a coloured version of the incident, subject matter of the FIR, is not introduced at a later point of time. Hence, mere failure to record the information in the Daily Diary cannot result in suspecting the case of the prosecution, when it is shown that there was no reasonable possibility of any such manipulation in the FIR. In the case before us, since the concerned Metropolitan Magistrate had received the copy of CRL. A. No. 232, 217& 226 of 1997 Page 48 of 93 the FIR within about 1-1 ½ hours of the time it is shown to have been recorded, there was no reasonable possibility of a coloured or doctored version of the incident having been introduced by the Investigating Officer at a later point. Another important circumstance in this regard is that the FIR was registered on the statement of PW 2 Lala Harkishan Dass who narrated only that part of the incident to the police which had taken place in his presence. Had there been any manipulation in the FIR, it would have contained description of the entire incident and not only of a part of it.
33. It was also contended by learned counsel for the appellant Suresh Singhal that though the case of the prosecution is that the deceased Shyam Sunder and the appellant Suresh Singhal were face to face with each other when the shot was fired at the deceased, the sole injury received by Shyam Sunder was on the right side of his back. Whereas the entry wound, in such a position, should have been on the front portion of the deceased, which shows that the version of the incident given by the witnesses is not correct. This contention was also raised before the trial court and was repelled, with convincing reasons. As rightly noted by the Trial Court, Shyam Sunder being a living human being, there was a possibility of involuntary movement of his body CRL. A. No. 232, 217& 226 of 1997 Page 49 of 93 with a view to protect himself and this might not have been noticed either by Hans Raj or by Raj Kumar. It was also noted that a circular wound was found by PW 10 Dr Baruah on the dead body of Shyam Sunder. Referring to Taylor, he noted that the shape of the entrance is usually circular, if the bullet strikes at right angle to the surface and, therefore, appearance of the entry would suggest that the bullet came at right angle. He was of the view that after entering the body the bullet might have been deflected by the body tissues. The learned Trial Judge, therefore, felt that Shyam Sunder must in all probability have seen Suresh Singhal taking out the revolver and, therefore, he might have ducked or turned. He also noted that Shyam Sunder had got up when challenged by the appellant Suresh Singhal and, therefore, he was not sitting at the time he was shot at. We see no reason to take a view different from the view taken by the learned Trial Court in this regard. We need to keep in mind that the case of the prosecution is that there was some altercation between the appellant Suresh Singhal and deceased Shyam Sunder, as soon as Suresh Singhal entered the office of the informant. Obviously, that must have engaged the attention of all those who were present in the office of the informant at that time. No one present in the office at that time had an inkling that CRL. A. No. 232, 217& 226 of 1997 Page 50 of 93 the appellant Suresh Singhal would take out a revolver and fire at Shyam Sunder. The very act of the appellant Suresh Singhal in taking out a revolver from his pocket must have terrified the witnesses. In such a circumstance, it would be wholly unrealistic to expect them to take note of the movement of Shyam Sunder at that point of time. Therefore, there would be nothing unusual in the witnesses not noticing such a maneuver on the part of the deceased. Since deceased Shyam Sunder was face to face with Suresh Singhal, he would have noticed him taking out his revolver, and the natural human instinct of self preservation would have made him make an attempt to save himself by changing his position, so that the shot does not hit his body. More importantly, as noted earlier by us only two persons, the appellant Suresh Singhal and his father Pritpal Singh were the persons armed with fire arms in the office of the informant on that date. Hence, the shot on deceased Shyam Sunder could have been fired either by Suresh Singhal or by his father late Pritpal Singhal. It is not the case even of the appellant Suresh Singhal that the shot on deceased Shyam Sunder was fired by his father. Even the informant Lala Harkishan Dass, during his examination-in- chief, was emphatic in saying that it was appellant Suresh Singhal who had fired on deceased Shyam Sunder. In these CRL. A. No. 232, 217& 226 of 1997 Page 51 of 93 circumstances, we see no reason to disbelieve the version given by PW 3 Hans Raj.
34. The learned counsel for the appellant, Suresh Singhal has referred to Awadesh and Anr. vs State of M.P. 1988 (2) SCC 557 where according to the eyewitnesses the deceased was at higher level when he received gunshot injuries and the appellants were at a lower level, whereas in the opinion of the doctor the person who caused injuries to the deceased was at a higher level since direction of the injuries on the body of the deceased was found to be from upper part to the lower part. The Supreme Court therefore, felt that the witnesses had not seen the actual occurrence. However, in the case before us, PW3 Hans Raj being the person who was seriously injured in the incident which took place in the office of the informant on 4th March, 1991 his presence during the occurrence cannot be disputed. Moreover, the appellant Suresh Singhal and his father Late Pritpal Singhal being the only persons armed with fire weapons in the office of PW2 on that day and as many as 7 shots having been fired from revolvers, his involvement in the incident can hardly be disputed.
35. The learned counsel has next referred to State of Rajasthan vs Magram 2009 SCC 589 where the evidence of CRL. A. No. 232, 217& 226 of 1997 Page 52 of 93 the eyewitnesses did not find support from the medical evidence, since the deceased had received 5 incised injuries and 7 injuries by blunt weapons on her chest whereas as per the witnesses, she had received only 2 incised wounds and therefore, the High Court on critical examination of their testimony came to the conclusion that they were not reliable witnesses. In the present case, however, there is no such variation between the ocular evidence and medical evidence. As regards the place of the injury received by deceased Shyam Sunder, the Trial Court has taken a plausible view that the deceased may have changed his position by ducking or turning and in such a situation there would be no variation between the ocular testimony and medical opinion. In any case, as noted earlier by us, in the facts and circumstances of this case considering the fact that the appellant Suresh Singhal and his father were the only persons armed with fire weapons when this incident took place and the presence of the injured Hans Raj at the time of the incident cannot be disputed, there is no ground to reject the testimony of the witnesses for the reasons that according to the witnesses the appellant Suresh Singhal and deceased Shyam Sunder were face to face with each other whereas the injury was found on the right side of the back of the chest of the deceased. CRL. A. No. 232, 217& 226 of 1997 Page 53 of 93
36. In Krishnan and Anr. vs State (2003) 7 SCC 56, referring to the plea that the medical evidence was at variance with ocular evidence, Supreme Court noted as under:
"...it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses‟ account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".
37. It is trite that where the eyewitnesses‟ account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses‟ account would require a careful independent assessment and evaluation for its credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
In Ramanand Yadav vs. Prabhu Nath Jha & Ors.
(2003) 12 SCC 606, Supreme court held as under:
"So far as the alleged variance between medical evidence and ocular evidence is concerned, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as it claimed to have been inflicted as CRL. A. No. 232, 217& 226 of 1997 Page 54 of 93 per the oral testimony, then only in a given case the court has to draw adverse inference."
38. The learned counsel has also referred to Ram Narain vs State of Punjab AIR 1975 SC 1727. In that case, the witness took no steps to inform anybody despite the fact that a serious occurrence resulting in gunshot injuries to the deceased had taken place in his presence and therefore his conduct was found to be unnatural. The witness had found 2 empty cartridges lying on the spot but did not care to collect them and produce them to police, when he went there to lodge FIR. According to the witness when the appellant Ram Narain fired a shot from his gun Teja Singh had put his arm on the right side of his chest. The court felt that this particular posture was a most conspicuous fact which could not have been missed by the witness if he was really there and in that case this fact should have been mentioned in the FIR. There were a number of other discrepancies in his testimony including variance with the medical evidence. The ballistic expert also did not support the information given by the witnesses. It was in these circumstances that the testimony of the witnesses was rejected by Supreme Court. However, the facts of the present case are altogether different. There is no material discrepancy in the testimony of PW3 Hans Raj and CRL. A. No. 232, 217& 226 of 1997 Page 55 of 93 PW4 Raj Kumar. Considering the atmosphere that prevailed in the office of PW 2 at that time, the maneuver of the deceased in ducking or turning was not so conspicuous, that it must necessarily have drawn the attention of PW 3 and/or PW 4 who themselves would have been terrified, when their brother was, all of a sudden shot, dead in their presence. Though the ballistic expert in this case has opined that the fire arms seized from the appellant Suresh Singhal and his father Pritpal Singhal were not those which were used in the shooting which took place on 4th March 1919, that by itself is of no consequence, when the ocular evidence produced by the prosecution is reliable and has successfully withstood the test of cross-examination. In the facts and circumstances of the case it appears to us that the weapons used by the appellant and his father on 4th March 1991 were disposed of or destroyed by them and they were deliberately carrying other fire arms at public places in order to misguide the Investigating Agency.
39. The learned counsel has lastly referred to Mani Ram vs State of MP Supp. (2) SCC 289 where the Supreme Court observed that where direct evidence is not supported by expert evidence, then the evidence is wanting in the most material part of the prosecution and therefore it would be difficult to CRL. A. No. 232, 217& 226 of 1997 Page 56 of 93 convict the accused on the basis of such evidence. However, in the present case, we find no material variation between the testimony of PW3 and PW4 and the medical evidence.
The learned counsel for the appellant Suresh Singhal has also referred to Seriyal Udayar vs State of Tamil Nadu 1987 (2) SCC 359 and Mohinder Singh vs State 1950 SCR
821. Neither of these judgments is attracted to the facts and circumstances of the case before us.
40. The learned counsel for the appellant Suresh Singhal also contended that since the independent witnesses produced by the prosecution did not support the case set up by it and PW 4 Raj Kumar was not present on the spot, the testimony of PW 3 Hans Raj should not be believed in the absence of independent corroboration, particularly when some other persons who were present in the office of PW 2 have not been examined by the police. He has in this regard referred to State of Punjab vs. Harbans Singh & Anr.(2003) 11 SCC 203. In the case of Harbans Singh (supra) the accused and PWs belonged to different political factions and were not on friendly terms. PW 4 was closely connected with the deceased. It was also found that PW 4 and PW 11 had antecedents of appearing as frequent prosecution witness. Independent witnesses were not examined and no blood stains were found on the cloths of CRL. A. No. 232, 217& 226 of 1997 Page 57 of 93 PW 4 and PW 11 in spite of their carrying the injured persons. No injury was found on their person. There was discrepancy between oral evidence and medical evidence. It was in these circumstances that the appeal filed by the State against acquittal of accused persons was dismissed by Supreme Court. The facts of the case before us, however, are altogether different. A number of independent persons who were present at the time of incident were examined. It was not necessary to examine each and every person present in the office of PW 2 at the time of the incident. PW 3 Hans Raj being the injured in this case, his presence at the time of occurrence cannot be denied. The injured is the best witness of the incident in which injuries were caused to him and, therefore, his testimony is entitled to great weight. The presence of such a witness at the time and place of occurrence cannot be doubted. It is not likely that he would spare the real assailant and implicate an innocent person. Being the victim of crime, he would be most keen to ensure that the real culprit does not go scot free. In Mer Dhana Side vs State of Gujarat AIR 1985 SC 386, it was held by the Supreme Court that it would require very convincing submissions to discard the evidence of the injured witnesses whose injuries would at least permit a reasonable inference that they were present at the time of occurrence. CRL. A. No. 232, 217& 226 of 1997 Page 58 of 93 Undoubtedly, this is subject to the requirement that there must be evidence to show that these witnesses received injuries in the same occurrence. In Machhi Singh vs State of Punjab 1983 Crl. LJ 1457 one witness Hakam Singh himself had sustained injuries in the course of incident in question. It was observed by the Supreme Court that it was difficult to believe that he would implicate the persons other than the real culprits and that the evidence of that witness alone was sufficient to bring home the guilt of the appellants, even if one were to exclude from consideration the evidence of other PWs. Identical view was taken by the Hon‟ble Supreme Court in a number of other cases, including Makan Jivan and Ors. vs State of Gujarat: AIR 1971 SC 1797; Mori Lal and Anr. vs State of U.P. AIR 1970 SC 1969; and Jamuna Chaudhary and Ors. vs State of Bihar AIR 1974 SC 1822. Even PW 2, PW 26, PW 27 and PW 29 have partly supported the case set up by the prosecution. Even if the deposition of PW 4 Raj Kumar is excluded from consideration, the testimony of the injured Hans Raj coupled with part corroboration of his testimony from the other witnesses is sufficient to prove the case set up by the prosecution.
41. The main contention of the learned counsel for the appellant Suresh Singhal before us was that taking the version CRL. A. No. 232, 217& 226 of 1997 Page 59 of 93 given by prosecution witnesses to be correct, this was a case covered either under exception I or exception IV to section 300 of the Indian Penal Code. He pointed out that according to PW 2 Lala Harkishan Dass, a scuffle had ensued in his office between Suresh, Krishan Lal, Shyam Sunder, Raju and Hans Raj. According to this witness, a gutham gutha had taken place between them by which he meant hatha pai, though according to him Suresh Singhal did not sustain any injury as it was a matter of only one minute. According to PW 3 Subhash Chand Mahajan a quarrel had taken place at the entrance gate of the office and Suresh Singhal fell down on the ground though he did not know who had made him fell on the ground. According to this witness during the scuffle he also did not see who had pressed the throat of Suresh Singhal. PW 26 Tilak Raj also stated that there was a scuffle between a person from Bahadurgarh and a person from the other party which had come later. According to him the scuffle took place in the office at a distance of about 2-4 paces from the gate. PW 27 Sarover Kumar stated that there was a scuffle between Suresh Singhal at one side and 3-4 persons of Krishan Lal on the other side. PW 30 Tarsem Kumar, however, stated that a quarrel started as soon as both the Singhals entered the office of the informant though he did not see either Suresh Singhal CRL. A. No. 232, 217& 226 of 1997 Page 60 of 93 or any other person falling on the floor. He also did not see Shyam Sunder strangulating Suresh Singhal or Hans Raj and Krishan Lal beating him. ]
42. Exception I. In order to bring the case within Exception I, the following conditions must be complied with:
(i) The deceased must have given provocation to the accused;
(ii) The provocation must be grave;
(iii) The provocation must be sudden;
(iv) The offender, by reason of the said provocation, shall have been deprived of his power of self-control;
(v) He should have killed the deceased during the continuance of the deprivation of the power of self-control; and
(vi) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.
43. Once the prosecution proves that the act committed by the accused had resulted in the death of a person, it is for the accused, who seeks to reduce the nature of the crime committed by him by claiming the benefit of the Exception to prove that the provocation received by him was grave as well as sudden, was such as might reasonably be deemed sufficient to deprive him of self control and that the act of killing was committed whilst absence of control still existed and can CRL. A. No. 232, 217& 226 of 1997 Page 61 of 93 reasonably be attributed to it.
This proposition of law is well settled and was reiterated by Supreme Court in the case of Ram Kishan Vs. State of Rajasthan JT 2000 (4) SC 350.
44. Provocation is some act or series of acts committed by the deceased to the accused which would cause, in a reasonable person, and which actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion, as to inspire him to kill the person who gave the provocation. The test to ascertain whether the accused acted under grave and sudden provocation is as to find whether the provocation given to him, in the facts and circumstances of the case, was likely to cause a normal reasonable man, belonging to the same class of society to which the accused belongs, and placed in the same situation in which the accused was placed to lose control of himself, to the extent of inflicting the injury or injuries that he actually inflicted. An unusually excitable, hot tempered or hypersensitive individual is not entitled to the benefit of Exception I to Section 300 of IPC, if the provocation received by him was not such as would have led an ordinary person to act the way he did. If it appears to the Court that the action of the accused was out of all proportions to the gravity or CRL. A. No. 232, 217& 226 of 1997 Page 62 of 93 magnitude of the provocation offered to him, the case will not fall under the Exception. Another requirement of Exception I to Section 300 of IPC is that the provocation must have come from the victim and if it comes from someone else, the Exception does not apply and the accused cannot claim its benefit. Also it is not a trivial provocation or a petty altercation which amounts to grave provocation within the meaning of the Exception. The provocation should be of such a decree that the person who is given provocation ceased to be the master of his understanding becomes incapable of cool reflection and lose control over his passions. An ordinary man normally does not loses his self control on account of mere hot exchange of words or even abuses and, therefore, such an exchange cannot be termed as a grave provocation within the meaning of Exception I to Section 300 of IPC.
45. In the case before us, the appellant Suresh Singhal did not claim any provocation from the deceased Shyam Sunder or Krishan Lal. No such plea was setup by him either in his statement under Section 313 of Cr.P.C or during cross- examination of witnesses. Of course, if the Court can cull out material from the evidence pointing to the existence of circumstances leading to invocation of exception, failure of the accused to setup such a defence would not foreclose his right CRL. A. No. 232, 217& 226 of 1997 Page 63 of 93 to rely upon the Exception. But, where the plea taken by the accused is of a total denial of his involvement in the incident in which murder is committed, it would definitely have bearing when such a plea is taken for the first time during the course of arguments.
46. In the case before us, there is no evidence even of any provocation having been given to the appellant Suresh Singhal by deceased Shyam Sunder or any of his brothers, not to talk of grave provocation. Though we have evidence of an altercation between the appellant Suresh Singhal and deceased Shyam Sunder, if we go by the deposition of PW 3 Hans Raj and PW 4 Raj Kumar there was absolutely no provocation from them to the appellant and it was the appellant Suresh Singhal himself who picked up the altercation with deceased Shyam Sunder. PW 2 Lala Harkishan Dass, PW 23 Subhash Chand Mahajan, PW 26 Tilak Raj and PW 27 Sarovar Kumar though they speak of scuffle do not tell the court as to what had transpired between the appellant and the deceased and their brothers before the alleged scuffle took place. Therefore, even if it is presumed that a scuffle had taken place as claimed by these witnesses no case of grave provocation by either of the deceased persons is made out in this case. In any case there is no evidence of CRL. A. No. 232, 217& 226 of 1997 Page 64 of 93 any such provocation from the deceased persons as would have deprived a normal person placed in the position of the appellant Suresh Singhal, of his power of self control and would have inspired him to kill the deceased. Therefore, no case for extending the benefit of exception (i) to section 300 of Indian Penal Code is made out in the facts and circumstances of this case.
47. The case of the prosecution, as set out in the FIR, is that as soon as the appellant Suresh Singhal entered the office of the informant, there was an altercation between him and the deceased Shyam Sunder. The informant did not disclose, in the FIR, as to what exactly was the altercation between the appellant and the deceased. When he came in the witness box, he stated in his examination-in-chief that as soon as the appellant Suresh Singhal entered his office a talk took place between him and Shyam Sunder, followed by a scuffle between him(the appellant Suresh Singhal), deceased Krishan Lal and Shyam Sunder and their brothers Raju and Hans Raj. He did not tell the court as to what exactly was the conversation between the appellant Suresh Singhal and deceased Shyam Sunder. He was confronted with the FIR lodged by him wherein he did not claim any scuffle between the appellant on the one hand and deceased Shyam Sunder, CRL. A. No. 232, 217& 226 of 1997 Page 65 of 93 Krishan Lal, Raju and Hansraj on the other hand. He admitted that his statement Ex. PW 2/A was read over to him before he signed it and he had admitted it to be correct. He did not tell the court as to why he had not referred to the alleged scuffle, when his statement was recorded by the police. Therefore, we are not inclined to believe his deposition to the effect that there was a scuffle in his office, between the appellant Suresh Singhal on the one hand and deceased Shyam Sunder, Krishan Lal, Raju and Hans Raj on the other hand. In fact, this witness during cross-examination by the learned counsel for the appellant Suresh Singhal also admitted his suggestion that the moment Suresh Singhal came out of the car stepped inside the door of the office a quarrel ensued between him and the appellant Suresh Singhal and he was beaten by Krishan Lal and Hans Raj, though he did not make any such statement either during examination in chief or during his cross-examination by the Special Public Prosecutor. It is, therefore, difficult for us to believe him when he said that the appellant Suresh Singhal was beaten by Shyam Sunder and Hans Raj. In fact, no one out of PW 23 Subhash Chand Mahajan, PW 26 Tilak Raj, PW 27 Sarovar Kumar and PW 30 Tarsem Kumar who have referred to the alleged scuffle claimed that the appellant Suresh Singhal was CRL. A. No. 232, 217& 226 of 1997 Page 66 of 93 beaten by deceased Shyam Sunder and Krishan Lal.
48. PW 23 Subhash Chand Mahajan admitted during cross-examination on behalf of the appellant that the appellant Suresh Singhal had fallen down on the ground and that he saw his throat being strangulated, though he could not see as to who had pressed his throat. The informant Lala Harkishan Dass on the other hand stated that he did not remember Shyam Sunder trying to strangulate the appellant Suresh Singhal and the other two trying to beat him. PW 30 Tarsem Kumar, though he did not support the case of the prosecution in toto, stated that he had not seen Shyam Sunder strangulating Suresh Singhal and Hans Raj and Krishan Lal beating him. The reason given by him was that he had run away after the shot was fired. Since the first shot was fired at deceased Shyam Sunder and that was the only shot fired at him, the alleged strangulation if it had taken place, would have happened before Shyam Sunder was shot dead by the appellant Suresh Singhal. PW 26 Tilak Raj and PW 27 Sarovar Kumar also did not say that the appellant Suresh Singhal had fallen down and an attempt was made to strangulate him. Therefore, the deposition of PW 23 Subhash Chand Mahajan claiming attempt to strangulate the appellant Suresh Singhal cannot be believed.
CRL. A. No. 232, 217& 226 of 1997 Page 67 of 93
49. As regards the alleged scuffle, whereas PW 2 Lala Harkishan Dass and PW 27 Sarovar Kumar claimed that there was a scuffle between the appellant Suresh Singhal on one side and 3-4 persons (deceased and Shyam Sunder and Krishan Lal brothers PW 3 Hans Raj, PW 4 Raju) on the other side, according to the PW 26 Tilak Raj the scuffle was between one person from Bahadurgarh and one person from the other party which had come later. On the other hand, PW 3 Hans Raj whose presence during the occurrence cannot be disputed he being a stamped witness, and his brother PW 4 Raj Kumar did not admit any such scuffle. Considering the fact that there was no reference to the alleged scuffle during the course of investigation and the plea of scuffle has been negated not only by PW 3 Hans Raj, PW 4 Raj Kumar but also by PW 30 Tarsem Kumar and further considering the contradiction as to whether scuffle was between the appellant Suresh Singhal and one person from the complainant side or between him and 3-4 persons from the complainant side, we find it difficult to believe the story of scuffle set up by the appellant.
50. The learned counsel for the appellant Suresh Singhal also referred to the MLC of deceased Shyam Sunder to support the plea of scuffle set up by him. It was pointed out that a circular wound with black margin was found on the back right CRL. A. No. 232, 217& 226 of 1997 Page 68 of 93 side of the chest of the deceased and according to PW 49 Dr. D.D. Gulani such a wound with black margin was possible when muzzle of the fire arm was in the range of 15 cm to 90 cm from the target. The argument was that the blackening shall occur only when the shot was fired from a close range and not from a distant range. This plea was negated by the learned Trial Judge, considering the testimony of PW 8 Dr. L.K. Baruah who conducted the autopsy on the dead body of the deceased and who was of the opinion that the bullets were fired from a distant range. The learned Trial Judge was of the view that had Suresh Singhal fallen on the ground that would have rendered him immobile and he could not have taken out his revolver and accordingly he rejected the theory of scuffle. He referred to the decision of a Division Bench of Allahabad High Court in Sheo Shankar vs. State 1953 Crl. L.J. 1400 wherein despite the opinion of the doctor that the wounds were due to gun being fired by placing it on the chest or from within a range of one yard, the High Court, referring to the Taylor‟s Principles and Practices of Medical Jurisprudence (10th edition), had held that the doctor was wrong and had got misguided on account of black margins of the wounds which were due to something other than firing of gun from a very close range. He also noted that Dr. Baruah had not observed CRL. A. No. 232, 217& 226 of 1997 Page 69 of 93 any scorching, charring and tattooing of the wound and accordingly he discarded the contention that the shot on Shyam Sunder was fired from a close range. We find that even PW 49 Dr. D.D. Gulani does not say that blackening of wound was not possible unless the shot was fired from a close range. According to him it was only a possibility that such a wound could be caused when the muzzle end of the weapon was in the range of 15 cm to 90 cm from the target. When PW 8 Dr. L.K. Baruah came in the witness box, he was not cross- examined at all and no suggestion was given to him that the wound received by the deceased was not possible unless the shot was fired from a close range. In these circumstances, we find it difficult to take a view contrary to the view taken by the learned Trial Judge.
Exception IV
51. An accused is entitled to the benefit of exception (IV) to section 300 of the Indian Penal Code only if the act committed by him satisfies the following conditions:
(i) It is committed without premeditation;
(ii) it is committed in a sudden fight; and
(iii) the act is committed in the heat of passion upon a sudden quarrel, provided the offender does not take any undue advantage and does not act in a cruel and CRL. A. No. 232, 217& 226 of 1997 Page 70 of 93 unusual manner.
This Exception deals with a case where the heat generated by passion clouds the sober reasoning of the man and compels him to do an act which he, would not have done in a sober state of mind. In such a case, there is no deliberation or determination to fight with each other and the quarrel takes place at the spur of the moment for which both the parties are to be blamed. In a case of this nature, the quarrel may have been started by one party, but it would not have taken a serious turn had it not been aggravated on account of some act or conduct of other party.
All the above conditions must exist before this exception is invoked. Even if one of the aforesaid conditions is missing. The case of the accused cannot be brought within the purview of this exception.
52. Normally, the word „fight‟ is used to convey something more than a verbal quarrel, since fight postulates bilateral transactions in which blows are exchanged from both the sides, though it is not necessary that weapons should be used in the fight. However, in the facts and circumstances of a given case, a hot exchange of words between two or more persons may also be taken as „fight‟ within the meaning of exception (IV) to section 300 of the Indian Penal Code even if CRL. A. No. 232, 217& 226 of 1997 Page 71 of 93 there is no exchange of blows, provided that all other conditions stipulated in the exception are satisfied. Whether hot exchange of words and/or abuses amount to fight within the meaning of this exception or not, would depend upon the facts and circumstances of each case and no hard and fast rule can be laid down in this regard.
53. „Undue advantage‟ would mean an unfair advantage. The nature of the weapon used by the accused and the manner of attack made by him have a material bearing while deciding whether the accused had taken an undue advantage or not. If the nature of the fight does not justify the use of weapon actually used by the accused, this would clearly amount to taking undue advantage of the victim and would take the case of the accused out of the purview of exception (IV) to section 300 of the Indian Penal Code. After considering the facts and circumstances of the case including the nature of the quarrel between the accused and the deceased, if it is found that use of the weapon actually used by the accused was wholly unjustified and unwarranted, that by itself may amount to acting in a cruel manner and may deprive the accused of the benefit of this exception.
54. In the present case admittedly, neither of the deceased persons nor any of their brothers were armed with CRL. A. No. 232, 217& 226 of 1997 Page 72 of 93 weapons. If the testimony of PW 3 Hans Raj and PW 4 Raj Kumar are accepted in this regard, it was the appellant Suresh Singhal himself who picked up an altercation with the deceased and then shot him dead. If the testimony of these two brothers is excluded from consideration, the court does not know what exactly was the conversation which preceded the firing by the appellant Suresh Singhal. If two persons are fighting one of them is unarmed while the other used a deadly weapon such as a revolver the one who uses a weapon of this nature can be said to have taken undue advantage and may not be entitled to benefit of this exception. More importantly, the appellant Suresh Singhal did not stop at giving one deadly shot to deceased Shyam Sunder. He and/or his father, acting in furtherance of common intention which, probably was formed on the spot and which they shared with each other, fired as many as eight more shots killing one more brother and seriously injuring the third brother Hans Raj. They knew that the victims being wholly unarmed were not in a position to offer any resistance to them. Despite that, shot after shot were fired by them. More importantly, the shots fired by the appellant Suresh Singhal/or his father late Pritpal Singh hit only Shyam Sunder, Krishan Lal and Hans Raj, which leaves no reasonable doubt that they were selectively targeted by the CRL. A. No. 232, 217& 226 of 1997 Page 73 of 93 appellant and/or his father. As noted earlier, no other person present in the room sustained any injury and no bullet hit floor, walls or ceiling of the room or any object such as the furniture lying in that room. This shows that it was not a case of indiscriminate firing under scare and the appellant and his father were selecting their targets and then shooting at them. In such circumstances it is not possible for us to accept that they did not took any undue advantage of the victims or did not act in a cruel manner.
55. The learned counsel for the appellant Suresh Singhal, while claiming benefit of exception (IV) to section 300 of the Indian Penal Code has relied upon Surender Kumar vs. Union Territory of Chandigarh, 1989 (2) SCC 217, Chonadam Karunan Alia perinjili vs. State of Kerala 1994 SCC (Cri) 501, K. Palraj vs. State 2008 Crl.L.J. 4236, Gainthabuda vs. State 2004 Crl. J. 1569, Bihari Rai vs. State of Bihar 2008 (15) SC 778, Ranjit Singh Chandra Singh Atodaria vs. State of Gujarat AIR 1994 SC 1060, Akhtar vs. State AIR 1964 All. 262, Ravindra Shalik Naik & Ors. vs. State of Maharashtra (2009) 12 SCC 257 and Lachman Singh vs. State of Haryana 2006 (1) SCC 524. The learned counsel for the State on the other hand has relied upon Shaukat vs. State of Uttaranchal (2010) 2 SCC (Crl.). CRL. A. No. 232, 217& 226 of 1997 Page 74 of 93
56. In the case of Surender Kumar (supra), there was a dispute between the parties with respect to possession of a kitchen. PW 2 and the deceased entered the room of the appellant and uttered filthy abuses in the presence of latter‟s sister. Since tempers ran high, PW 2 took out a pen knife, whereas the appellant picked up a knife from the kitchen and inflicted a simple injury on his neck. The deceased intervened on the side of the PW 2 and in the course of the scuffle received three injuries one of which proved fatal. In these circumstances benefit of exception (IV) of section 300 was given to the appellant. In the case of Chonadam (supra), the deceased PW 2 and the accused were digging grave when the accused began to quarrel with PW 2 and the deceased was pushed by him to a distance. In that sudden quarrel without pre-meditation, the accused lost his temper and in a heat of passion stabbed the deceased, causing a single injury on his neck which caused his death. The conviction of the appellant was converted from section 302 to section 304 part (II) of IPC. In the case of K. Palraj (supra), it was found that the accused had stabbed the deceased only due to a sudden quarrel and due to refusal of the deceased to settle his dues, which had resulted in a wordy quarrel between them. Only one knife blow was given to the deceased though on the right side of his CRL. A. No. 232, 217& 226 of 1997 Page 75 of 93 abdomen. It was held that there was no intention of causing death of the deceased. In the case of Bihari (supra), there was long standing dispute between the parties and litigation was also pending between them. There was evidence that the accused and the deceased had quarreled just before the occurrence and thereafter the accused had inflicted axe blows on the deceased which had resulted in his death. In these circumstances, he was convicted under section 304 (I) of IPC. In the case of Gainthabuda (supra), the deceased and his family members had forcibly entered into a disputed field and cut and removed paddy therefrom. When the deceased were gossiping after cutting and removing the paddy, the accused persons came there and gave 2-3 blows on the neck of one of the deceased persons. Noticing that the sentiments attached to the properties in our country sometimes cross all barriers or relationships and sometime people are more attached to properties than thinking about the life of others and considering other facts and circumstances of the case Supreme Court held that the conviction of the appellant was justified only under part (II) of Section 304 of IPC. In the case of Ranjit Singh (supra), there was a dispute between the appellant and the accused over a house for which rent was being paid by the deceased during the period the appellant CRL. A. No. 232, 217& 226 of 1997 Page 76 of 93 was in jail in another case. On coming out of the jail the appellant demanded rent from the deceased for that house, which was refused by the deceased, who also refused to give possession of the house to the appellant. On the day of the incident, the accused persons met the deceased and again asked him to hand over possession of the house, whereupon a quarrel ensued and during the quarrel a knife blow was given on the neck of the deceased. In these circumstances conviction of the appellant was altered to one under section 304(II) of IPC. In the case of Akhtar (supra), the appellant who was brother of the deceased was under stress of previous provocations but had controlled himself until he was provoked again by use of foul and filthy hurled at his father and at him by his own brother who had also aggressively advanced towards him. The mother of the accused and the deceased was also present when these highly abusive words were uttered by the deceased within the hearing of the appellant and others in a crowded locality. The appellant losing self control, seized a knife which came to his hand then and there and suddenly stabbed the deceased twice. Holding that there was a grave and sudden provocation to the appellant who had no time to cool down, Supreme Court held that he was entitled to the benefit of exception (I) to section 300 of IPC. In the case CRL. A. No. 232, 217& 226 of 1997 Page 77 of 93 of Ravinder (supra), there was a quarrel between the accused and the other party when a bundle of cotton/grass of the accused hit the roof of the complainant and damaged it. A quarrel thereupon ensued, between the parties. The appellants brought an axe, knife and gupti from their house which was nearby and inflicted injuries on the head and abdomen of the deceased using those weapons. The Supreme Court held that the appellant were liable to the convicted under section 304 (I) of IPC. In the case of Lachman Singh (supra), there was a previous dispute and altercation between the parties on construction of a room. On the day of the incident, there was exchange of abuses between accused Lachman Singh and Randhir Singh who were standing on the roof of their house on one hand and deceased Naseeb Singh and other who were standing on the roof of their kitchen, on the other hand, over the issue of flow of water. Accused Dev Singh got infuriated and asked his son Lachman Singh to bring revolver from inside. Thereupon Lachman Singh brought a revolver and shot the deceased on being instigated by accused Dev Singh. Thereafter Dev Singh took the revolver from Lachman Singh and started firing shots which hit Jaswant Singh and Angrez Singh. After analyzing the evidence, Supreme Court altered the conviction of Lachman CRL. A. No. 232, 217& 226 of 1997 Page 78 of 93 Singh from section 302 to section 304 part (I) of IPC. In the case of Shaukat (supra) the appellant and his father followed the deceased, picked up a quarrel with him and murdered him. Noticing that the appellant had armed with a dangerous weapon before going to the place of occurrence and had taken undue advantage of the situation by inflicting more than one blows on the person of the deceased it was held that exception (IV) to section 300 of IPC was not attracted.
Considering the facts and circumstances of this case including that deceased Shyam Sunder and Krishan Lal as well as his brothers were unarmed whereas the appellant Suresh Singhal and his father Pritpal Singhal were armed with fire arms when they went to the office of the informant and as many as seven shots were fired by them, after selecting their targets exception (IV) to section 300 of IPC is not attracted to the facts and circumstances of this case.
57. For the reasons given in the preceding paragraphs, we find no ground to interfere with the conviction of the appellant Suresh Singhal and the sentence awarded to him. Criminal Appeal No. 217/1997
58. The learned counsel for the State sought death penalty to the convict Suresh Singhal on the ground that not only he committed murder of two brothers, the third brother CRL. A. No. 232, 217& 226 of 1997 Page 79 of 93 Hans Raj was injured to such an extent that he still carries some bullet inside his body. It was also pointed out the learned counsel for the State that all the victims of the crime were wholly unarmed whereas the convict Suresh Singhal as well as his father late Pritpal Singhal were armed with loaded revolvers when they went to the office of Lala Harkishan Dass which indicates that they had preplanned to commit murder of all the brothers on that day.
59. The learned trial Judge was of the view that Suresh Singhal and his father had not preplanned the murders when they came to the house of Lala Harkishan Dass on 4th March 1991 and that the common intention to commit murder of the victims developed there and then on the spot. In the facts and circumstances of the case, we find it difficult to accept that the murder of Shyam Sunder and Krishan Lal had been preplanned. Had Suresh Singhal and his father late Pritpal Singhal preplanned the murder, they would have chosen some other place to execute their plan and would not have done it in the office of the informant, in the presence of a number of persons. The convict Suresh Singhal and his father late Pritpal Singhal knew that a number of persons including the informant Lala Harkishan Dass and the members of the Gurdaspur Party would be present in the office of the CRL. A. No. 232, 217& 226 of 1997 Page 80 of 93 informant on that day and in the event of Krishan Lal and his brother(s) having murdered there, all these persons would be eye-witnesses against them. It is, therefore, highly unlikely that they would have planned to commit murders at that place. It is true that both of them were armed with loaded revolvers when they came to the office of the informant on that day. But, that, in our view, in the facts and circumstances of the case, does not necessarily mean that they had preplanned the murder, though it does show that they were fully prepared to meet any eventuality and go to any extent including use of the firearms they were carrying with them.
60. The question as to which are the cases justifying awarding of capital punishment has been subject matter of a number of decisions of the Supreme Court. In Bachan Singh vs State of Punjab (1980) 2 SC 684, while upholding constitutional validity of the death penalty, it was held by Supreme Court that for making choice of punishment or for ascertaining the existence or absence of special reasons in the context of section 354(3) and 235(2) of Cr.P.C, the court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstance of the particular case. Some of the mitigating circumstance CRL. A. No. 232, 217& 226 of 1997 Page 81 of 93 could be the age of the accused and the probability that the accused would not commit criminal acts of violence as would constitute continuing threat to society. It was observed that in a sense to kill is to be cruel and, therefore, all murders are cruel, but, such cruelty may vary in its degree of culpability and it is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. The Court held that for a person convicted of murder, life imprisonment is the rule and death sentence is an exception and life ought not to be taken through the instrumentality of law save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
61. In Machhi Singh vs State of Punjab AIR 1983 (3) SCC 470, while addressing the practical application of "rarest of rare cases", rule laid down in the case of Bachan Singh (Supra), Supreme Court gave the following illustrations which normally would attract death penalty:-
(a) Manner of commission of murder - When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(b) Motive for commission of murder - When the murder is committed for a motive which evinces total depravity and CRL. A. No. 232, 217& 226 of 1997 Page 82 of 93 meanness.
(c) Anti-social or socially abhorrent nature of the crime -
When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath or in cases of "bride burning" or "dowry death" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(d) Magnitude of the crime - When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of a particular caste, community, or locality, are committed.
(e) Personality of victim of murder - When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a public figure generally loved and respected by the community.
62. The Court added that the following two questions might be asked and answered as a test to determine the rarest of rare case, in which death sentence could be inflicted:
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and CRL. A. No. 232, 217& 226 of 1997 Page 83 of 93 calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence, even after according maximum weightage to the mitigating circumstances, which speak in favour of the offender.
63. The following guidelines emerge from the decisions in Bachan Singh (Supra) and Machhi Singh (Supra):-
(i) Life imprisonment is the rule and death sentence is an exception, which should be imposed only where life imprisonment appears to be wholly inadequate punishment, considering the facts and circumstances of the case.
(ii) Death penalty can be imposed only if special reasons exist for doing so and the circumstances of the case are such as to leave the Court with no alternative but to impose death sentence, even after giving due weightage to the mitigating circumstances.
(iii) A balance sheet of aggravating and mitigating circumstances needs to be drawn up by the Court. Only when the aggravating circumstances far outweigh the mitigating circumstances, the Court would be justified in awarding the death penalty to the convict.
64. In State of Punjab vs Manjit Singh (2009) 14 SCC CRL. A. No. 232, 217& 226 of 1997 Page 84 of 93 31, accused No.1 and 2 had illicit relationship with accused No.3. When the victims were sleeping in their house and within the precincts of a Gurudwara, accused No. 1 and 2 committed murder of the husband and three sons of accused No.3 since the victims did not appreciate the said illicit relationship, sometimes used to beat accused No.3 and had restrained accused No. 1 and 2 from coming to their house. While rejecting the appeal filed by the State seeking death penalty to the accused persons, Supreme Court held that though the respondent had behaved in a most cruel manner, killing four persons while they were asleep, three of them having been murdered within the precincts of Gurudwara, there were certain mitigating circumstances which could not be lost sight of. It was held that though they had acted in a ghastly manner, they had been adequately punished by the High Court by awarding life sentence to them.
65. In Des Raj vs. State of Punjab (2007) 12 SCC 494, the appellate before the Supreme Court, a retired Police Constable, fired shots from his licensed gun by repeatedly loading the gun and killing three members of neighbour‟s family while injuring three members of that family and an outsider. The appellant had no criminal, anti-social or anti- national antecedent. Noticing that it was not a murder to CRL. A. No. 232, 217& 226 of 1997 Page 85 of 93 satisfy any greed or lust and was not a case involving cruelty to or torture to victim, Supreme Court was of the view that the act of the appellant was not brutal, diabolic or revolting and was not a rarest of the rare case warranting death penalty.
66. Despite the fact that two persons were brutally murdered and the third one was seriously injured by Suresh Singhal and his father late Pritpal Singhal, it cannot be said that this case false in the category of "rarest of rare cases"
enunciated by the Supreme Court in the case of Bachan Singh (Supra). The manner of committing murder in this case cannot be said to be so diabolic, revolting or repulsive that the State would be justified in taking away the life of Suresh Singhal through instrumentality of law. This incident took place more than 19 years ago. The appeal filed by the appellant Suresh Singhal as well as the appeal filed by the State seeking death penalty for him are pending for last more than 13 years. Suresh Singhal is more than 50 years old. He has already spent more than seven years in custody as noted in the order of this Court dated November 3, 1999 whereby bail was granted to him during pendency of his appeal. There is no allegation of his having committed any other offence in last 19 years. In the facts and circumstances of the case, it cannot be said that the aggravating circumstances far CRL. A. No. 232, 217& 226 of 1997 Page 86 of 93 outweigh the mitigating circumstances nor can it be said that Suresh Singhal has become a menace to the society and forfeited his right to remain alive. The court, in our view, will therefore, not be justified in awarding death penalty to the convict Suresh Singhal. This appeal is, therefore, liable to be dismissed.
Criminal Appeal No. 226/1997
67. The case of the prosecution against the respondent Roshan Lal is that he accompanied Suresh Singhal and his father late Pritpal Singhal to the office of the informant Lala Harkishan Dass on 4th March 1991. This also has come in the testimony of PW-3 Hans Raj and PW-4 Raj Kumar that after Suresh Singhal had shot at deceased Shyam Sunder, they along with their brother deceased Krishan Lal proceeded to catch hold of him and at that time Suresh Singhal asked his father to finish off his brother. According to them, thereafter Roshan Lal caught hold of Raj Kumar and when Hans Raj and Krishan Lal were running outside on receiving bullet injuries, deceased Pritpal Singhal asked the respondent Roshan Lal to leave him and bring a gun from the vehicle parked outside so that the fourth brother also did not survive and Roshan Lal, leaving Raj Kumar, ran towards the car for bringing a gun. The trial court believed that the respondent Roshan Lal had CRL. A. No. 232, 217& 226 of 1997 Page 87 of 93 accompanied Suresh Singhal and his father late Pritpal Singhal to the office of the informant on that day but, declined to believe that he had held PW-4 Raj Kumar and had ran towards the car of the appellant, when asked by Pritpal Singhal to bring the gun from his vehicle.
68. As regards the guidelines to be followed by High Court while considering an appeal against acquittal of the accused, in Ajit Savant Majagvai vs State of Karnataka (1997) 7 SC 110, the following principles were reiterated by Supreme Court:-
(i) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
(ii) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
(iii) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view CRL. A. No. 232, 217& 226 of 1997 Page 88 of 93 expressed by the trial court that the accused is entitled to acquittal.
(iv) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.
(v) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
(vi) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness-box.
(vii) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
69. In a recent decision, Mohammed Ankoos and Others vs Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94, the following principles laid down in Ghurey Lal vs. State of U.P. (2008) 10 SCC 450 CRL. A. No. 232, 217& 226 of 1997 Page 89 of 93 were quoted with approval:-
(i) The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court‟s conclusion with respect to both facts and law.
(ii) The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court‟s acquittal bolsters the presumption that he is innocent.
(iii) Due or proper weight and consideration must be given to the trial court‟s decision. This is especially true when a witness‟ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong. The Supreme Court was of the view that following could be the instances in which Appellate Court would have very substantial and compelling reasons to discard the decision of the trial court:
(i) The trial court‟s conclusion with regard to the facts is palpably wrong;
(ii) The trial court‟s decision was based on an erroneous view CRL. A. No. 232, 217& 226 of 1997 Page 90 of 93 of law;
(iii) The trial court‟s judgment is likely to result in „grave miscarriage of justice‟
(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
(v) The trial court‟s judgment was manifestly unjust and unreasonable;
(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
70. Admittedly, no gun was found in the car in which Suresh Singhal and his father had come to the office of the informant on that day. If no gun was lying in the car, there could have been no occasion for late Pritpal Singhal to ask the respondent Roshan Lal to bring a gun from his vehicle and Roshan Lal rushing towards the car in order to bring a gun. It was contended by the learned counsel for the respondent that may be, Roshan Lal was asked by late Pritpal Singhal to bring a gun from the car in order to terrify those who were present in the room. We, however, are unable to accept the argument. The case of the prosecution is that Suresh Singhal as well as his father late Pritpal Singhal were armed with revolvers which they had used in committing murder of Krishan Lal and CRL. A. No. 232, 217& 226 of 1997 Page 91 of 93 Shyam Sunder and causing serious gunshot injuries to the injured Hans Raj. As many as seven shots were fired by them in the office of Lala Harkishan Dass on that day. Firing as many as seven shots using two revolvers for the purpose and causing serious gunshot injuries to as many as three persons was more than enough to terrorize those who were present in the office of informant on that day and nothing more needed to be done for the purpose. No intention to commit murder can be inferred merely from Roshan Lal accompanying Suresh Singhal and his father Pritpal Singhal to the office of the informant on that day, particularly when the Trial Court has come to the conclusion that the murder was not pre-planned and a common intention between Suresh Singhal and his father to commit murder had developed there and then, in the office of the informant.
The story of the respondent Roshan Lal catching hold of PW-4 Raj Kumar has been disbelieved by the learned trial Judge noting that by doing so Roshan Lal would have only been helping Raj Kumar. In such a position, Suresh Singhal and his father Pritpal Singhal would not have been able to fire any shot towards Raj Kumar, lest the bullet hit their own companion.
In our view the conclusion drawn by the learned trial CRL. A. No. 232, 217& 226 of 1997 Page 92 of 93 Judge is not only plausible but is the only logical view which can be taken in the facts and circumstances of the case before us. Considering the principles laid down by the Supreme Court, we will not be justified in taking a view different from the view taken by the Trial Court unless that view is palpably wrong or has resulted in grave miscarriage of justice. We feel that the view taken by the trial court is a rational and reasonable view which could justifiably have been taken in the facts and circumstances of the case. This appeal is, therefore, liable to be dismissed.
Conclusion:
71. For the reasons given in the preceding paragraphs Criminal Appeal No. 232/1997 filed by Suresh Singhal against his conviction and the sentence awarded to him, Criminal Appeal No. 217/1997 filed by the State seeking death penalty for him and Criminal Appeal No. 226/1997 filed by the State against acquittal of Roshan Lal are hereby dismissed. Suresh Singhal, appellant in Criminal Appeal No. 232/1997 be taken into custody to undergo the remaining part of the sentence awarded to him.
(V.K. JAIN) JUDGE (BADAR DURREZ AHMED) JUDGE SEPTEMBER 01, 2010/Ag/BG/RS CRL. A. No. 232, 217& 226 of 1997 Page 93 of 93