Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1475 OF 2010
Avtar Singh ….Appellant
VERSUS
State of Haryana …Respondent
WITH
CRIMINAL APPEAL NO. 1476 OF 2010
Kirpal Singh @ Pala & Ors. ….Appellant
VERSUS
State of Haryana & Ors. …Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. These two appeals arise out of the common judgment dated 27.03.2009
passed in Criminal Appeal No.916-DB/2006 of the High Court of Punjab &
Haryana at Chandigarh. The second accused is the appellant in
Criminal Appeal No.1475/2010. Accused Nos. 4 to 9 are the appellants
in Criminal Appeal No.1476 of 2010.
2. According to the case of prosecution, there was a civil suit pending
as between Hansa Singh (PW-11) and Surjit Singh S/o Kundan Singh (DW-
2) at Samana (Punjab), that there was also an interim order granted by
the Civil Court in favour of Hansa Singh (PW-11) as against Surjit
Singh, that after hearing was over on 09.04.2003 in the Civil Court,
the complainant party returned back home and were present at the house
of PW-10 Harmesh Singh s/o Amarjit Singh in the evening. At that
time, one Desa Singh, uncle of Harmesh Singh (PW-10) came and informed
that some persons had gathered near the land with reference to which
the litigation was pending in the Court at Samana and that they might
harvest the crops belonging to Hansa Singh (PW-11). On hearing the
said information, Harmesh Singh (PW-10) along with his father the
deceased Amarjit Singh, his uncle Hansa Singh, Ujagar Singh s/o Chuman
Singh, Paramjit Singh s/o Surjit Singh, Karnail Singh s/o Phuman
Singh, Surjit Singh s/o Atma Singh, Darshan Singh s/o Surjeet Singh,
Teja Singh s/o Karta Singh, Ranjit Singh s/o Phuman Singh all
residents of Bhatian village proceeded towards the field of Hansa
Singh at about 7.30 p.m., that when they reached the bandh of Bhatian
Dam near the lands of Darshan Singh, the accused, namely, Kirpal
Singh, Raminder Singh s/o Arjun Singh, Mitt Singh, Resham Singh with
swords in their hands, Balbir Singh, Jagtar Singh, Fateh Singh armed
with gandasis, Raghbir Singh, Avtar Singh armed with barchhis all
residents of Dera Amritsaria, Shiv Majra and Kulwant Singh s/o Surjit
Singh also with a sword rushed towards them raising a lalkara, that
Kirpal Singh gave a sword blow upon the head of Amarjit Singh, father
of Harmesh Singh (PW-10) while Raminder Singh gave a blow of sword on
the left arm of the deceased Amarjit Singh and Kulwant Singh attacked
the deceased on his feet and Balbir Singh, Jagtar Singh and Fateh
Singh also attacked the deceased with their weapons. Raghbir Singh
with his barchhi, Mitt Singh with his sword, Resham Singh also with a
sword and Avtar Singh with a barchhi attacked Paramjit Singh, Ujagar
Singh, Surjit Singh, Hansa Singh and Karnail Singh and inflicted
injuries upon them. Due to the injuries the deceased Amarjit Singh
fell down, that when the complainant went running towards the place of
occurrence, the accused party fled away from the spot with their
respective weapons. The deceased was stated to have been taken to the
civil hospital where he was declared dead by the doctor. The other
injured persons were also treated at the very same hospital, and that
the statement of PW-10 was recorded at 10.35 p.m. which was forwarded
to the police station at PHG, Guhla which came to be registered as FIR
No. 51 dated 09.04.2003. Thereafter PW-15 Sub-Inspector took up the
investigation, inspected the place of occurrence recorded the
statement of witnesses, collected the opinion of doctors, prepared the
draft sketch, collected blood stained earth from the place of
occurrence, took steps for the arrest of the accused and based on the
admissible portion of their confessional statement recovered the
weapons and filed the final report before the Court. The case was
committed to the Court of Sessions where the appellants along with
three other accused came to be charge sheeted for the offences
punishable under Sections 148, 302, 326, 325, 324,323 read with
Section 149 IPC.
3. On the side of the prosecution as many as 16 witnesses were examined
and 87 Exhibits were marked. In the 313 questioning, the accused
denied all the allegations against them. DWs-1 to 7 were examined on
the defence side. Based on the evidence placed before the trial Court,
all the accused were found guilty of the offences alleged against them
and they were convicted and sentenced to rigorous imprisonment for six
months and pay a fine of Rs.1000/- each for the offences under Section
148 IPC and in default of payment of fine to undergo simple
imprisonment for a period of two months each, life imprisonment for
each for the offence under Section 302 IPC, RI for three years and to
pay fine of Rs.2000/- each and in default of payment of fine to
undergo simple imprisonment for a period of three months for the
offence under Section 326 IPC, rigorous imprisonment for a period of
two years along with a fine of Rs.2000/- each and in default to
undergo simple imprisonment for a period of two months each and for
the offence under Section 325 IPC rigorous imprisonment for a period
of one year along with a fine of Rs.2000/- each and in default to
undergo simple imprisonment for a period of two months each. All the
sentences were to run concurrently.
4. Aggrieved by the conviction and sentence imposed, all the appellants
preferred an appeal and the High Court while confirming the conviction
and sentence imposed on the appellants held that the offence alleged
against Raghbir (A1), Mitt Singh (A-3) and Resham Singh (A-10) was
doubtful and on that ground acquitted them of all the charges levelled
against them. Being aggrieved of the above conviction and sentence
imposed on the appellants and the confirmation of the same by the High
Court, the appellants have come forward with this appeal.
5. Learned counsel at the very outset fairly submitted that the
appellants go along with the story of the prosecution to considerable
extent in the sense that the filing of the Civil Suit by PW-11 as
against Surjit Singh in the Court at Samana was true, that it related
to the lands in village Marori, that the suit was admittedly pending
on the date of occurrence, namely, 09.04.2003, that on that evening
the occurrence took place. Learned counsel also contended that the
presence of three of the accused as well as Surjit Singh at the place
of occurrence was true. The said three accused were Kirpal Singh (A-
4), Raminder Singh (A-5) and Kulwant Singh (A-9). Learned counsel
would, however, strongly urge that the prosecution tampered with the
records inasmuch as in the complaint itself, which was preferred by PW-
10, there was a specific reference to the presence of Surjit Singh,
nevertheless there was no reference to him in the FIR and he was not
charge-sheeted and the injuries sustained by him were not specifically
explained. According to the learned Senior counsel the Civil Suit
preferred by PW-11 ended in a failure, that the name of Surjit Singh
(DW-2) was duly recorded in the revenue records as owner of the lands
in question and that the accused party were the sufferers at the hands
of the complainant party and though a complaint was preferred at the
instance of Surjit Singh (DW-2), the prosecution failed to take
appropriate action in that regard.
6. According to learned Senior counsel, the accused party when tried to
defend themselves from the attack of the complainant party they might
have suffered the injuries and the prosecution failed to project the
case in the proper direction. By referring to the non-examination of
the other injured persons, namely, Jagtar Singh, Paramjit Singh,
Surjit Singh and Karnail Singh, the learned senior counsel submitted
that there was not enough evidence to support the case of the
prosecution. Learned senior counsel argued that when Harmesh Singh
(PW-10) met Investigation officer PW-15 at the hospital at 9 p.m. when
he was by the side of the dead body, there was no proper explanation
for the registration of the FIR after 1 hour and 35 minutes, inasmuch
as, the police station is just across the hospital. Learned Senior
counsel also contended that when there was no reference to the name of
the accused, namely, Raghbir Singh (A-1), Mitt Singh (A-3) and Resham
Singh (A-10) in the record and specific reference to Surjit Singh (DW-
2) the inclusion of A-1, A-3 and A-10 in the FIR and non-arraying of
DW-2 as the accused would only go to show that it is a clear case of
tampering of the records and consequently the case of the prosecution
should not be believed. Learned senior counsel ultimately submitted
that it was a sudden fight without any pre-meditation, that in a group
clash there were 11 persons on the side of the complainant party and
six on the side of accused party in a heat of passion and as there was
no cruel attack and in the circumstances when the above factors were
proved or at least probabilized there is a great doubt whether Section
149 would apply. The learned Senior counsel would contend that there
was no pre-meditation and there was no motive and if at all there was
any motive, it might be against PW-11 while the deceased Amarjit Singh
was totally unconnected to the dispute relating to the land and any
attack on the said deceased Amarjit was so sudden, there was no common
object in the alleged murder of the deceased Amarjit Singh. As far as
the injuries caused on others are concerned, it was contended that
those injuries were all minor injuries and in the circumstances, the
conviction could at best be for an offence under Section 304 Part I
IPC as against Kirpal Singh (A-4) and under Section 323, IPC as
against others. Learned senior counsel would, therefore, contend that
whatever sentence has been suffered by the appellants would be
sufficient punishment and they are entitled to be released forthwith.
7. As against the above submissions learned counsel for the State pointed
out that the names of Raghbir Singh (A-1), Mitt Singh (A-3), Resham
Singh (A-10) do find a place in the record as could be seen from Page
3 Volume III, that rukka was written at 10.30 p.m. and FIR was
registered at 10.35 p.m. and, therefore, there was no question of
false case or any delay in the registration of the FIR. The learned
counsel drew our attention to the order of the Civil Court extending
the stay on 09.04.2003 available at pages 207 to 213 of the original
records to contend that the dispute with regard to the land and its
right of possession was very much in controversy on the date of
occurrence as between the parties and as per the version of PW-10 the
issue relating to the land was as between his uncle PW11 and Surjit
Singh who were fighting for the land in the Civil Court and the
deceased Amarjit Singh being the father of Harmesh Singh (PW-10) was
closely related to Hansa Singh (PW-11) and consequently he was also
fully interested in the claim of Hansa Singh (PW-11) over the land in
question and that the submission of the counsel for the appellant to
the contrary cannot, therefore, be accepted. Learned counsel for the
State contended that immediately after the occurrence at 7.30 p.m. the
deceased was taken to the hospital where he was declared dead by the
doctor and the version found in the rukka was found in the FIR and,
therefore, there was no question of any falsification in the case of
the prosecution. Learned counsel submitted that the case of the
prosecution was supported by the injured eye witnesses and, therefore,
it was not necessary for the prosecution to multiply witness when the
eye witnesses fully supported the case of the prosecution. It was,
therefore, contended that the non-examination of Desa Singh, the uncle
of Harmesh Singh (PW-10) who gave the information that the accused
party were proceeding towards the disputed land with an idea to
harvest the crops never caused any dent in the case of the
prosecution. In other words, according to the learned counsel even in
the absence of Desa Singh’s evidence, the case of the prosecution
stood proved. Learned counsel further contended that the injuries
inflicted upon the deceased as found proved based on the evidence of
the doctor in the post mortem report established the intention of the
accused to cause the death of the deceased and the injuries sustained
by others were also severe though they survived the attack. Learned
counsel pointed out that none of the accused party sustained any
injuries and, therefore, the theory of private defence was a futile
stand. According to the learned counsel, the complainant party were
unarmed while the accused were armed heavily, that the complainant
party were not the aggressors while the accused party were found to be
aggressors by the Courts below was true and in those circumstances
when the plea of self defence failed, the charge under Sections 148
and 149, IPC stood fully proved. He also contended that the very fact
that the appellants were armed with deadly weapons and caused the
death of the deceased, the offence under Sections 148 and 149 were
made out and there was no requirement of pre-medication and pre-
planning for the offence under Sections 148 and 149 to be made out.
The common object as made out on the spot was sufficient to support
the conviction imposed on the appellants for the offence under Section
302 IPC as well as under Sections 323, 324 and 325 read with Sections
148 and 149 IPC. The learned counsel, therefore, contended that no
interference is called for.
8. Having heard learned counsel for the appellant as well as counsel for
the State and having bestowed our serious consideration to the
judgment impugned in these appeals, as well as, that of the trial
Court and the material papers placed before us, at the outset, when we
examine the whole edifice of the crime, we find that it related to the
disputed land situated in village Marori (Punjab) as between Surjit
Singh (DW-2) and Hansa Singh (PW-11). According to DW-2 at the behest
of PW-11 he purchased the property, that he has perfected the title
over it, yet PW-11, under the guise of his continued right to
possession was causing hindrance to the ownership of DW-2. As the
issue was brewing over a considerable length of time, prior to the
year 2003, that on the fateful date it transpired that in the Civil
Suit preferred by PW-11 in the Court of Samana, the interim order
granted earlier in favour of PW-11 by way of stay was extended by the
Civil Court. As per the narration of events, it was disclosed that the
parties returned back to their respective homes in the village in the
evening while Harmesh Singh (PW-10), Hansa Singh (PW-11) and the
deceased Amartjit Singh were discussing about the issue, one Desa
Singh, the uncle of Harmesh Singh (PW-10) arrived there and gave the
information that the accused party was proceeding towards the disputed
land with the idea of harvesting the crops raised by Hansa Singh (PW-
11). Since there was an order of stay existing in favour of PW-11, it
was quite apparent that the information furnished by Desa Singh
prompted the complainant party to proceed towards the land in question
with a view to protect their crops.
9. The said conduct displayed by the complainant party who were all
related was quite natural. Nowhere it was brought out in evidence
that while they were proceeding towards the disputed land they were
all armed with any dangerous weapons, except lathis in the hands of
Teja Singh and Ranjit Singh as stated by PW-11 in his oral evidence.
On the other hand, even according to Surjit Singh, DW-2 he along with
his son Kulwant Singh and other son Tarsem Singh, Amar Singh, cousin
Kirpal Singh and other accused were going towards the said land and
thereby admitted the factum of the correctness of the information
alleged to have been received by the complainant party about their
proceeding towards the land for harvesting the crops. He further went
on to depose that when they had gone on Killa towards the West through
the bandh, the complainant party pounced upon the whole lot of them
but caused injuries only to him. There is further admission to the
effect that their party also caused injuries to the complainant party
with the rider that such causing of injuries was by way of self
defence. He fairly admitted that while he received lot of injuries,
the complainant party also received injuries.
10. A reading of the evidence of PWs-10, 11 and 13 read along with the
version of DW-2 as regards the manner of infliction of injuries amply
establish to a considerable extent the fact about the happening of the
occurrence on the way to the disputed land in question near the bandh
apparently referring to Bhatian bandh which has been specifically
mentioned by the prosecution witnesses. While on the one hand,
according to the prosecution, the complainant party was proceeding
towards the land with a view to protect the crops from being harvested
by the accused party, as per the version of DW-2, at the point where
both the parties met at Bhatian bandh, a clash occurred in which
casualties were the death of the deceased Amarjit Singh apart from
injuries sustained by Hansa Singh (PW-11), Jagtar Singh, Paramjit
Singh Surjit Singh S/o Atma Ram, Karnail Singh and Harmesh Singh son
of the deceased Amarjit Singh. The evidence of the doctor who attended
on the injured witnesses PWs-10, 11 and 13 as well as the other
injured persons disclosed that everyone of them suffered cut injuries
with the aid of dangerous weapon such as gandasa, kirpan and sword.
This was the sum and substance of the manner in which the occurrence
took place where Amarjit Singh was murdered while the other injured
persons were inflicted with severe injuries. In that process, none of
the assailants suffered any injuries except DW-2 whose grievance was
quite independent of the genesis of the crime alleged against the
appellants.
11. Learned counsel for the appellant in the forefront submitted that
having regard to the specific reference made in the rukka about the
presence of Surjit Singh but yet not being made a party to the crime
and non-consideration of the grievance of the said Surjit Singh with
reference to the extent of injuries sustained by him which according
to him were inflicted upon him by the complainant party, the
prosecution case was not truthful, tampering of the whole case with a
view to pin down the appellants and the other accused by fabricating
the evidence. Learned counsel for the State in his submission,
however, pointed out that there could not have been any false case
fastened on the appellants inasmuch as the rukka which was prepared at
10.30 p.m. at the hospital was received at the police station and
thereafter the law was set in motion by registering the FIR without
any loss of time. According to learned counsel, the rukka was written
at 10.30 p.m. and the FIR was registered at 10.35 p.m. wherein the
entire allegations brought out in the rukka were duly carried out and
in the said circumstances, there was no basis at all for submission
made on behalf of the appellants alleging false case foisted against
the appellant. We find force in the said submission of learned counsel
for the State. As far as non-inclusion of Surjit Singh (DW-2) as an
accused or as a witness is concerned, though in the first blush, it
may appear as though some deliberate attempt was made at the instance
of the prosecution to suppress certain vital factors, on a close
scrutiny, we find that except referring to the name of Surjit Singh in
the rukka, there was no specific overt act alleged against him in
regard to his participation in the actual crime of assault or
inflicting of injuries or use of any weapon against either the
deceased or any other person. Therefore, the non-inclusion of Surjit
Singh in the array of accused by the prosecution cannot be taken so
very seriously in order to doubt the whole genesis of the case alleged
against the appellant and the other accused.
12. Learned counsel further submitted that though the prosecution would
claim injuries on several persons of the complainant party, the other
persons who were stated to have been injured or were present at the
place of occurrence were not examined. In this context, it will be
relevant to refer to the decision of this Court reported in Tej
Prakash v. The State of Haryana [JT 1995 (7) SC 561] wherein this
Court held that all the witnesses of the prosecution may not be called
and it is sufficient if witnesses who were essential to the unfolding
of the narrative on which the prosecution is based must be called by
the prosecution. The legal position has been stated in paragraph 18
as under:
“18. In support of his contention that serious prejudice was caused
to the appellant by non-examination of Phool Singh who, had been cited
by the prosecution as one of the witness, Mr. Ganesh relied upon
Stephen Senivaratne v. The King, AIR 1936 P.C. 289, Habeeb Mohammad v.
The State of Hyderabad, 1954 (5) SCR 475 and the State of UP and
another v. Jaggo Alias Jagdish and others 1971 (2) SCC 42. The
aforesaid decisions can be of little assistance to the appellant in
the present case. What was held by the Privy Council and this Court
was that witnesses who were essential to the unfolding of the
narrative on which the prosecution is based must be called by the
prosecution whether the effect of their testimony is for or against
the case for the prosecution and that failure to examine such a
witness might affect a fair trial. It was also observed that all the
witnesses of the prosecution need not be called. In the present case,
the witnesses who were essential to the unfolding of the narrative had
been examined.”
(Emphasis added)
The law on this aspect can be succinctly stated to the effect that in
order to prove the guilt of the accused, the prosecution should take
earnest effort to place the material evidence both oral and documentary
which satisfactorily and truthfully demonstrate and fully support the case
of the prosecution. Where there were several persons stated to have
witnessed the incident and the prosecution examined those witnesses who
were able to depose the nature of offence committed more accurately leaving
no room for doubt about the involvement of the accused in the occurrence
and the extent of their involvement with specific overt act and also were
able to withstand the cross-examination by maintaining the sequence and the
part played as originally stated, it will be wholly irrelevant and
unnecessary to multiply the number of witnesses to repeat the same version.
13. As rightly pointed out by the trial Court as well as the High Court,
if really the case sought to be pleaded at the instance of DW-2 as
against the complainant party were true and he really suffered any
injury at the hands of the complainant party, it was not known why he
did not pursue his complaint of such a serious nature by taking
appropriate recourse to law. Though according to DW-2 as well as the
doctor who is alleged to have examined him who was examined as DW-3,
he suffered extensive injuries (viz) as many as five, of which one was
an incised wound, we find considerable doubt and suspicion as regards
the version spoken to by both the witnesses in particular about the
nature of injuries sustained and its truthfulness. We say so because
admittedly while the occurrence had taken place on 09.04.2003 between
7 to 7.30 p.m. according to the doctor (viz) DW-3, DW-2 approached the
hospital at Guhla only at 4.10 p.m. on 10.04.2003 where he stated to
have subjected himself for medical examination. DW-3 in his evidence
admitted that on 10.04.2003 he was posted at PHC, Guhla on emergency
duty. The photocopy of MLR is Exhibit DX along with X-ray dated
12.04.2003 by way of Exhibit DA and intimation alleged to have been
sent to Guhla Police station on 10.04.2003 as Exhibit DY placed before
the Court to support the claim of medical evidence. In the cross
examination, DW-3 tacitly admitted that he had no document to show
that he was on emergency duty at Guhla hospital on 10.04.2003. He,
however, claimed that the assignment of duty by way of roster would be
available in the office of SMO Guhla but no steps were taken at the
instance of DW-2 or DW-3 to exhibit the said document in order to show
that DW-3 was really on duty on 10.04.2003 at PHC Guhla which was not
his regular place of duty as a doctor. Therefore, the cumulative
consideration of the factum of DW-2 stated to have gone to the
hospital only on the next day evening, namely, 10.04.2003 at 4.10 p.m.
the extent of doubt about the factum of such medical examination held
on the person of DW-2 by DW-3 rightly persuaded the Courts below not
to give credence to the claim of DW-2 as regards the injuries alleged
to have been sustained by him at the hand of the complainant party.
Therefore, the submission made on behalf of the appellants by making
reference to the said factor in order to doubt the case of the
prosecution to hold that the whole case was fabricated by tempering
the records does not appeal to this Court.
14. Once we steer clear of the said hurdle relating to the case projected
against the appellants and the other accused and when we see the whole
evidence read with the evidence of DW-2 himself, it only goes to show
that the prosecution story as placed before the trial Court which was
appreciated while finding the appellant guilty of the offence alleged
against them is fully justified. In the result, therefore, the role
played by the accused in causing the serious injuries on the deceased
as well as on the other injured witnesses and other persons as found
proved does not call for any interference.
15. If once that conclusion is irresistible, the only other question to be
considered is the plea of self-defence which was argued on behalf of
the appellant. In this context, the conclusion of the trial Court in
holding that it was the accused party who had attacked the complainant
party and thereby the complainant party cannot be held to be
aggressors was perfectly justified. The trial Court has also noted
that the issue was relating to the land situated at place Marori. The
trial Court also noted that when the two groups happened to clash and
from among the two groups, the members of the group of the complainant
party were only the sufferers inasmuch as several of them sustained
injuries and everyone of them suffered cut injuries which injuries
were demonstrated before the Court by the medical evidence in
uncontroverted terms that they were caused by either gandasi or kirpan
or sword and the injuries sustained by the deceased Amarjit Singh
which was the cause for his death as opined by the medical evidence
while at the same time none of the persons in the accused party
sustained any injury, the ultimate conclusion of the Court below in
holding the accused were squarely responsible and by calling them as
the party who indulged in the aggression cannot be found fault with.
The evidence of DW-2 was clear to the effect that the persons who
accompanied him carried gandasi and sottas, that three were holding
gandasis and three were holding sottas. He also admitted in
categorical terms that none of the five persons who accompanied him
received any injuries except himself. Therefore, even going by the
version of DW-2 himself they were armed with dangerous weapons.
Therefore, when they proceeded towards the disputed land with arms
such as gandasi and kirpans it amply disclosed their mindset to deal
with the complainant party sternly against whom they had a definite
grudge relating to the land with reference to which the dispute was
brewing for quite a long period of time prior to the date of
occurrence, namely, 09.04.2003. More so, as established before the
trial Court, the interim order passed against them by the Civil Court
was extended on that very date, namely, 09.04.2003 which was a cause
for prejudice against the complainant party.
16. On the other hand, the very fact that there were extensive injuries
sustained by the complainant party and the death of the deceased in
the process of assault inflicted upon them only goes to show that the
plea of self-defence was wholly a make a belief version which had no
legs to stand and was rightly rejected by trial Court as well as the
High Court. We, therefore, do not find any substance in the said
submission of the learned counsel.
17. Learned counsel was stressing to a very great extent that it is a case
of extending self-defence and, therefore, the case would fall under
first part of 304, that Section 149, IPC would not apply to any of the
appellants while they may be liable for their individual offences.
18. We have considered the plea of self-defence in detail and have found
that there was no acceptable basis for the said claim and once the
theory of self-defence stands rejected, we find no scope to apply the
submission that the case would fall under Section 304 Part I and that
too exclusively as against A-4 Kirpal Singh alone and not others.
Having regard to our conclusion that the accused party was the
aggressor and having regard to the possession of dangerous weapons it
was amply demonstrated that the game play was preplanned to deal with
the complainant party when they were proceeding towards the disputed
land in question while meeting them at the bandh at Bhatian. The
subsequent conduct of the appellants in having inflicted the severe
injuries and causing death of the deceased Amarjit Singh only go to
show that it was a clear case of pre-meditation. The contention that
it was a sudden fight and was without pre-meditation has, therefore,
no basis at all. It is relevant to note that at least three types of
dangerous weapons apart from Lathis were in the possession of the
accused party. The very fact that the death of the deceased Amarjit
Singh was due to the cut injuries inflicted upon him and the other
injuries as noted in the body of PWs-10, 11 and 13, as well as, other
injured persons of the complainant party was clear proof of the fact
that the accused party was present at the place of occurrence, namely,
the Bhatian bandh fully prepared to attack the complainant party which
they were able to successfully carry out. The admission of DW-2 that
none of the accused party was injured also goes to show that everyone
of the accused party was standing at the spot with a clear mindset to
assault the members of the complainant party. Therefore, it is a
futile attempt on the side of the appellants now to contend that it
was a sudden fight without any pre-meditation. For the very same
reason the contention that in a heat of passion in a group fight the
injuries were inflicted cannot also be accepted. The further
contention that the accused party did not act in a cruel manner is
again a fact contrary to the true state of affairs which prevailed at
the place of occurrence. Therefore, it was too much for the appellants
to expect and contend that the case would fall under Exception IV to
Section 300 IPC. The said contention has to be stated only to be
rejected.
19. Once the claim of absence of pre-meditation is rejected, only other
submission was that the appellants, if at all they were aggrieved, it
was only against PW-11 Hansa Singh and the deceased Amarjit Singh
unfortunately fell a prey in the process and, therefore, there was no
common object involved in order to attract Section 149, IPC. Again
this was a submission which was one in desperation. Even going by the
submission of the learned counsel if the accused party had a motive as
against Hansa Singh (PW-11) that very fact was sufficient enough to
bring the action of the accused party in having caused injuries on the
witnesses and other persons as well as the cause for the death of the
deceased Amarjit Singh to squarely rope them in the process of their
common object. Section 149 provides that if offence is committed by a
member of an unlawful assembly in commission of the object of that
assembly then every person who at the time of committing of that
offence is a member of that assembly would be guilty of that offence.
In this context, it will be worthwhile to refer to the earliest
decision on this subject reported in Mizaji and Anr. v. State of U.P.
- AIR 1959 SC 572 wherein this Court has held as under:-
“6. This section has been the subject matter of interpretation in the
various High Courts of India, but every case has to be decided on its
own facts. The first part of the section means that the offence
committed in prosecution of the common object must be one which is
committed with a view to accomplish the common object. It is not
necessary that there should be preconcert in the sense of a meeting of
the members of the unlawful assembly as to the common object; it is
enough if it is adopted by all the members and is shared by all of
them. In order that the case may fall under the first part the
offence committed must be connected immediately with the common object
of the unlawful assembly of which the accused were members. Even if
the offence committed is not in direct prosecution of the common
object of the assembly, it may yet fall under Section 149 if it can be
held that the offence was such as the members knew was likely to be
committed………..”
(Emphasis added)
20. Therefore, applying the above said principle, it can be safely held
that everyone of the members of the accused party must have been fully
aware that having regard to the fact that dangerous weapons were in
their possession, that they had an axe to grind against Hansa Singh
(PW-11), that there was every likelihood of the offence of that
magnitude would be the ultimate outcome and the factum of such grave
offence ultimately brought them within the four corners of the said
Section and there was no escape from it. Therefore, the argument that
there was no common object to murder Amarjit Singh also stands
rejected. The manner of causing injury on the person of Amarjit Singh
also goes to show that all of them were determinative of showing their
might by ensuring that the deceased and other injured persons did not
escape from their assault and the deceased ultimately succumbed to the
injuries inflicted upon him. The assailants ensured that the deceased
was hit on his head and every vital part of the body and the chopping
of the torso of both the legs was only to ensure that there was no way
to escape for the person from the gruesome attack. The totality of the
manner in which the assailants acted at the place of occurrence while
inflicting the injuries on the deceased as well as others only
displayed their united mind and effort in the fulfillment of their
objective at the spot and, therefore, there was no scope to
individualize the conduct of the assailants in order to mitigate the
gravity of the charges found proved against the appellants. Therefore,
the submission made by learned senior counsel that at best Kirpal
Singh (A-4) can alone be found guilty of the offence under Section
302, IPC or under Section 304 Part I while others may be guilty of the
lesser offence falling under Section 323, IPC cannot be accepted.
Having regard to the gravamen of the charges found proved against the
appellants, we do not find any scope to bring it under Section 304
Part I IPC based on the submission made on behalf of the appellants.
21. As held by us earlier the offence found proved against the appellants
squarely fall under Section 302, IPC and the punishment imposed on the
appellants for the said offence as well as the other charges levelled
against them was fully established, the conviction and sentence
imposed on the appellants, therefore, do not call for any
interference. The impugned judgment cannot be assailed, the appeals
fail and the same are dismissed.
.......…..……….…………………………...J.
[B.S. Chauhan]
.....………….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
October 10, 2012
