Maghar Singh Vs. State of Punjab - Court Judgment

SooperKanoon Citationsooperkanoon.com/650515
SubjectCriminal
CourtSupreme Court of India
Decided OnJan-21-1987
Case NumberCriminal Appeal No. 194 of 1978
Judge G.L. Oza and; M.M. Dutt, JJ.
Reported in(1987)2SCC642
ActsIndian Penal Code (IPC), (IPC) 1860 - Section 302; Arms Act 1959 - Section 27
AppellantMaghar Singh
RespondentState of Punjab
DispositionAppeal Dismissed
Excerpt:
- [ g.l. oza and; m.m. dutt, jj.] -- criminal trial — prosecution — failure to examine witness, held, not fatal if he turns out to be brother of the accused and had been won over — not being an independent witness, no adverse inference can be drawn — related witness -- this appellant at the trial was acquitted by the learned additional sessions judge for these offences. having gone through the evidence of the eyewitnesses and the judgment of the learned judges of the high court in our opinion the reasons on the basis of which the learned additional sessions judge discarded the testimony of eyewitnesses are such on which the testimony could not be discarded. bachan singh to whom gurdial singh reported about the incident immediately after 9 a.m. has fully corroborated his testimony. - after going through the evidence of the eyewitnesses and the judgments of the judges of the high court, the supreme court held that the reasons on the basis of which the trial court discharged the testimony of the eyewitnesses on the grounds that they were related to the deceased, was not good.g.l. oza and; m.m. dutt, jj.1. this appeal has been filed by the appellant against his conviction under section 302 ipc and under section 27 of the arms act recorded by the high court of punjab and haryana in an appeal against the order of acquittal filed by the state. this appellant at the trial was acquitted by the learned additional sessions judge for these offences.2. the prosecution case at the trial was that when the deceased along with his brother were returning after irrigating the field at night on august 19, 1971 and when they had crossed about four to five kilas maghar singh, the present appellant (accused) met them and requested bahadur singh deceased to permit him for the use of canal water whereupon bahadur singh replied that he had already permitted karnail singh for the use of water and he cannot allow for the use of water to anybody again. it is alleged that there was some altercation and as maghar singh was carrying a 12 bore double barrelled gun he fired a shot at him which resulted in injuries on the chest and on the arm of the deceased bahadur singh who fell on the ground. the appellant went near and fired one more shot at bahadur singh which hit him on his back. gurdial singh, brother of the deceased bahadur singh, pw 1 who was present on the scene of occurrence went to bachan singh a panch leaving behind gulab kaur, the mother of the two brothers and karnail singh who was also present at the scene of occurrence. gurdial singh informed bachan singh about the incident and thereafter went to the police station which was at a distance of about nine miles and lodged the first information report at 11 a.m. thereafter the sub-inspector shri lal singh accompanied gurdial singh and came on the spot, conducted the investigation, sent the body for post-mortem examination where dr r.k. sharma conducted the post-mortem on august 28, 1971. after investigation a charge-sheet was filed and on trial the learned additional sessions judge acquitted the appellant (accused) of the charge alleged against him.3. the learned additional sessions judge discarded the evidence of the two eyewitnesses gurdial singh and gulab kaur on the ground that they were related to the deceased and also on the ground that karnail singh who according to the learned additional sessions judge was a dependent witness was not examined and the prosecution declared that he has been won over. the learned additional sessions judge also felt that the medical evidence was not consistent with the testimony of the two eyewitnesses and in view of these circumstances rejected the testimony of the two eyewitnesses and acquitted the accused.4. on appeal a division bench of the high court of punjab and haryana considered the evidence in detail and found that the reasons on the basis of which the learned additional sessions judge discarded the testimony of the two eyewitnesses are not good reasons and after examining the evidence of these eyewitnesses and the circumstances of the case came to the conclusion that the conclusion arrived at by the learned additional sessions judge could not be sustained, allowed the appeal and convicted the appellant for an offence under section 302 ipc and under section 27 of the arms act and sentenced the appellant under section 302 to imprisonment for life and under section 27 of the arms act to imprisonment for one year.5. having gone through the evidence of the eyewitnesses and the judgment of the learned judges of the high court in our opinion the reasons on the basis of which the learned additional sessions judge discarded the testimony of eyewitnesses are such on which the testimony could not be discarded.6. karnail singh who according to the learned additional sessions judge was the only independent witness and non-examination of him was considered to be an important circumstance but karnail singh was the brother of the accused as found by the high court, and it is therefore plain that if the brother of the accused was one of the witnesses for the prosecution it could not be said that he was an independent witness and an inference could not be drawn against the prosecution for non-examination of such witness.7. as regards the medical evidence which was read over by the learned counsel appearing for the appellant before us, it clearly goes to show that in cross-examination the doctor only gave a probability of those injuries 1 to 12 and said that they could be the result of either two shots or even more than two shots. but the evidence of eyewitnesses clearly showed that there were two shots. the evidence of the doctor, if carefully read, clearly goes to show that injuries one to ten could be caused by one shot and injury 11 could be caused by another shot. the description of injury 12 as has been given in the post-mortem report and the evidence of the doctor discloses that it could not be said to be an injury independently of a shot fired but either could be caused by stray pellet or even could be on account of fall when the injured fell on the ground as a result of the first shot which resulted in injuries one to ten. having gone through the evidence of the doctor, it is clear that the evidence could not be said to be inconsistent with the evidence of eyewitnesses. what was said to be inconsistent was only a mere probability which was indicated by the doctor about which the doctor himself was not very sure.8. the learned additional sessions judge tried to infer that there was delay in lodging the fir and there was also delay in fir reaching the magistrate. the high court has considered this question in the light of the evidence as produced. gurdial singh, who from the spot went to the police station to lodge the fir was not questioned at all as to whether he went in a vehicle or on foot and the distance of nine miles if he had covered within about two hours and reached the police station at 11 a.m. it could not be said to be delayed. similarly, the evidence discloses that from the place where the police station is situated at sangrus where the magistrate's court is situated the bus service starts at intervals of two hours and this report ultimately reached the magistrate's court at 4.30 p.m. on this basis no inference could be drawn that there was any delay and the high court was right in discarding the reasons which were considered by the additional sessions judge in rejecting the testimony of gurdial singh as an eyewitness.9. bachan singh to whom gurdial singh reported about the incident immediately after 9 a.m. has fully corroborated his testimony. but the learned trial judge felt that bachan singh's evidence does not disclose as to whether gurdial singh told him as to whether he was an eyewitness or not but unfortunately the learned additional sessions judge while drawing such inference did not refer to any particular question put to bachan singh when he was in the witness box but draw such an inference and the high court, was, therefore, right in ultimately coming to the conclusion that the learned additional sessions judge only discussed imaginary reasons to discard the testimony of eyewitnesses and the high court after considering the testimony in the light of the circumstances emerging in evidence accepted the evidence of the two eyewitnesses and, therefore, allowed the appeal against acquittal.10. having gone through the evidence of these witnesses and having gone through the judgment of the learned additional sessions judge and of the high court, and having heard learned counsel for the appellant in our opinion the judgment of the high court could not be assailed. we, therefore, see no reason to entertain this appeal. the appeal is, therefore, dismissed, conviction and sentence passed against the appellant is maintained, bail bond stand cancelled and he will surrender to serve out the remaining part of the sentence.
Judgment:

G.L. Oza and; M.M. Dutt, JJ.

1. This appeal has been filed by the appellant against his conviction under Section 302 IPC and under Section 27 of the Arms Act recorded by the High Court of Punjab and Haryana in an appeal against the order of acquittal filed by the State. This appellant at the trial was acquitted by the learned Additional Sessions Judge for these offences.

2. The prosecution case at the trial was that when the deceased along with his brother were returning after irrigating the field at night on August 19, 1971 and when they had crossed about four to five kilas Maghar Singh, the present appellant (accused) met them and requested Bahadur Singh deceased to permit him for the use of canal water whereupon Bahadur Singh replied that he had already permitted Karnail Singh for the use of water and he cannot allow for the use of water to anybody again. It is alleged that there was some altercation and as Maghar Singh was carrying a 12 bore double barrelled gun he fired a shot at him which resulted in injuries on the chest and on the arm of the deceased Bahadur Singh who fell on the ground. The appellant went near and fired one more shot at Bahadur Singh which hit him on his back. Gurdial Singh, brother of the deceased Bahadur Singh, PW 1 who was present on the scene of occurrence went to Bachan Singh a panch leaving behind Gulab Kaur, the mother of the two brothers and Karnail Singh who was also present at the scene of occurrence. Gurdial Singh informed Bachan Singh about the incident and thereafter went to the police station which was at a distance of about nine miles and lodged the first information report at 11 a.m. Thereafter the Sub-Inspector Shri Lal Singh accompanied Gurdial Singh and came on the spot, conducted the investigation, sent the body for post-mortem examination where Dr R.K. Sharma conducted the post-mortem on August 28, 1971. After investigation a charge-sheet was filed and on trial the learned Additional Sessions Judge acquitted the appellant (accused) of the charge alleged against him.

3. The learned Additional Sessions Judge discarded the evidence of the two eyewitnesses Gurdial Singh and Gulab Kaur on the ground that they were related to the deceased and also on the ground that Karnail Singh who according to the learned Additional Sessions Judge was a dependent witness was not examined and the prosecution declared that he has been won over. The learned Additional Sessions Judge also felt that the medical evidence was not consistent with the testimony of the two eyewitnesses and in view of these circumstances rejected the testimony of the two eyewitnesses and acquitted the accused.

4. On appeal a Division Bench of the High Court of Punjab and Haryana considered the evidence in detail and found that the reasons on the basis of which the learned Additional Sessions Judge discarded the testimony of the two eyewitnesses are not good reasons and after examining the evidence of these eyewitnesses and the circumstances of the case came to the conclusion that the conclusion arrived at by the learned Additional Sessions Judge could not be sustained, allowed the appeal and convicted the appellant for an offence under Section 302 IPC and under Section 27 of the Arms Act and sentenced the appellant under Section 302 to imprisonment for life and under Section 27 of the Arms Act to imprisonment for one year.

5. Having gone through the evidence of the eyewitnesses and the judgment of the learned Judges of the High Court in our opinion the reasons on the basis of which the learned Additional Sessions Judge discarded the testimony of eyewitnesses are such on which the testimony could not be discarded.

6. Karnail Singh who according to the learned Additional Sessions Judge was the only independent witness and non-examination of him was considered to be an important circumstance but Karnail Singh was the brother of the accused as found by the High Court, and it is therefore plain that if the brother of the accused was one of the witnesses for the prosecution it could not be said that he was an independent witness and an inference could not be drawn against the prosecution for non-examination of such witness.

7. As regards the medical evidence which was read over by the learned counsel appearing for the appellant before us, it clearly goes to show that in cross-examination the doctor only gave a probability of those Injuries 1 to 12 and said that they could be the result of either two shots or even more than two shots. But the evidence of eyewitnesses clearly showed that there were two shots. The evidence of the doctor, if carefully read, clearly goes to show that injuries one to ten could be caused by one shot and Injury 11 could be caused by another shot. The description of Injury 12 as has been given in the post-mortem report and the evidence of the doctor discloses that it could not be said to be an injury independently of a shot fired but either could be caused by stray pellet or even could be on account of fall when the injured fell on the ground as a result of the first shot which resulted in injuries one to ten. Having gone through the evidence of the doctor, it is clear that the evidence could not be said to be inconsistent with the evidence of eyewitnesses. What was said to be inconsistent was only a mere probability which was indicated by the doctor about which the doctor himself was not very sure.

8. The learned Additional Sessions Judge tried to infer that there was delay in lodging the FIR and there was also delay in FIR reaching the magistrate. The High Court has considered this question in the light of the evidence as produced. Gurdial Singh, who from the spot went to the police station to lodge the FIR was not questioned at all as to whether he went in a vehicle or on foot and the distance of nine miles if he had covered within about two hours and reached the police station at 11 a.m. it could not be said to be delayed. Similarly, the evidence discloses that from the place where the police station is situated at Sangrus where the magistrate's court is situated the bus service starts at intervals of two hours and this report ultimately reached the magistrate's court at 4.30 p.m. On this basis no inference could be drawn that there was any delay and the High Court was right in discarding the reasons which were considered by the Additional Sessions Judge in rejecting the testimony of Gurdial Singh as an eyewitness.

9. Bachan Singh to whom Gurdial Singh reported about the incident immediately after 9 a.m. has fully corroborated his testimony. But the learned trial Judge felt that Bachan Singh's evidence does not disclose as to whether Gurdial Singh told him as to whether he was an eyewitness or not but unfortunately the learned Additional Sessions Judge while drawing such inference did not refer to any particular question put to Bachan Singh when he was in the witness box but draw such an inference and the High Court, was, therefore, right in ultimately coming to the conclusion that the learned Additional Sessions Judge only discussed imaginary reasons to discard the testimony of eyewitnesses and the High Court after considering the testimony in the light of the circumstances emerging in evidence accepted the evidence of the two eyewitnesses and, therefore, allowed the appeal against acquittal.

10. Having gone through the evidence of these witnesses and having gone through the judgment of the learned Additional Sessions Judge and of the High Court, and having heard learned counsel for the appellant in our opinion the judgment of the High Court could not be assailed. We, therefore, see no reason to entertain this appeal. The appeal is, therefore, dismissed, conviction and sentence passed against the appellant is maintained, bail bond stand cancelled and he will surrender to serve out the remaining part of the sentence.