advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Tuesday, September 30, 2014

Alibi - Medical evidence - Non examination of senior counsel to prove alibi instead of office colleague is not a ground for discard the evidence - trial court discarded it where as High court accepted the same and acquitted the accused - when the alleged blunt object said to be used by Accused 4,8 high court acquitted as the Doctor deposed that death was caused due to sharp weapon not by blunt objects said to be used by A 4,8 - Apex court held that nothing is there to interfere - regarding conviction and confirmation of sentences of other accused the Apex court held that the trial court and the High Court recorded concurrent findings holding that the appellants accused Dilawar Singh (A-1), Yash Pal (A-3) and Shamsher Singh (A-7) have committed the offences punishable under Section 302 IPC read with Section 149 IPC and under Section 148 IPC. It has been repeatedly held by this Court that even though powers of this Court under Article 136 of the Constitution are very wide, in criminal appeals this Court does not interfere with the concurrent findings of fact, save in exceptional circumstances.= CRIMINAL APPEAL NO. 1362 OF 2010 DILAWAR SINGH & ORS. …Appellants Versus STATE OF HARYANA ...Respondent = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41916

 Alibi - Medical evidence - Non examination of senior counsel to prove alibi instead of office colleague is not a ground for discard the evidence - trial court discarded it where as High court accepted the same and acquitted the accused - when the alleged blunt object said to be used by Accused 4,8 high court acquitted as the Doctor deposed that death was caused due to sharp weapon not by blunt objects said to be used by A 4,8 - Apex court held that nothing is there to interfere - regarding conviction and confirmation of sentences of other accused the Apex court held that the trial court and the High Court recorded concurrent  findings holding that the appellants accused Dilawar Singh (A-1), Yash Pal (A-3)  and Shamsher Singh (A-7) have committed the offences  punishable  under  Section 302 IPC read with Section 149 IPC and under Section 148 IPC. It  has  been repeatedly held  by this Court  that  even  though   powers  of  this  Court under Article 136 of the Constitution  are  very wide, in  criminal  appeals this Court does not interfere with the concurrent  findings of   fact,  save in exceptional circumstances.=

Appellants Dilawar Singh (A-1),  Yash  Pal  (A-3)  and  Shamsher
Singh (A-7) in Criminal Appeal No.1362/2010 challenge the legality of  their
conviction for the offence  punishable  under  Section  302  IPC  read  with
Section 149 IPC and the sentence of  life  imprisonment  and  imposition  of
fine of  Rs.5,000/- each  and  also  challenge  their  conviction   for  the
offence punishable under Section 148 IPC and sentence  of  imprisonment  for
two years.
Being aggrieved by the acquittal of Balkar Singh  (A-4),  Ranbir
Singh (A-6) and Charan       Singh (A-8), State of Haryana and Chanda  Singh
– father of the deceased Narinder Singh have preferred Criminal Appeal  Nos.
826/2010 and 830/2010.

Accused Ranbir Singh took a plea of alibi by stating that he  is  practising
as an advocate at Kurukshetra  and was not present    at  the  spot  on  the
date of occurrence.  Gurdev Singh (A-2) also took  the  plea  of  alibi  and
stated that he was posted as a Naib Tehsildar and  in  connection  with  his
official work had gone to village Sardhaheri  on  the  date  of  occurrence.
 The
trial court 
acquitted Gurdev Singh  (A-2),  Ashok  Kumar  (A-5)  and  Dalbir
Singh(A-9).

Apex court held that
Regarding convictions

The trial court and the High Court recorded concurrent  findings
holding that the appellants accused Dilawar Singh (A-1), Yash Pal (A-3)  and
Shamsher Singh (A-7) have committed the offences  punishable  under  Section
302 IPC read with Section 149 IPC and under Section 148 IPC.
 It  has  been
repeatedly held  by this Court  that  even  though   powers  of  this  Court
under Article 136 of the Constitution  are  very wide, in  criminal  appeals
this Court does not interfere with the concurrent  findings of   fact,  save
in exceptional circumstances.

Regarding acquittals of High court

A-6, Ranbir Singh  has put forth defence  plea  of  alibi.  A-6,
Ranbir Singh was a practising lawyer at Kurukshetra and he was working as  a
junior advocate in the office of  Senior  Advocate,  Mr.  S.C.  Sharma.  Mr.
Yudhvir Singh, advocate was examined as DW-6, who was also  practising  with
Mr. S.C.Sharma.
 He stated that on the date  of  occurrence     A-6,  Ranbir
Singh was in the  office  of  Senior  Advocate  and  not  at  the  place  of
occurrence.
Trial Court has not accepted the plea of alibi  raised  by  him
only on the ground that the Senior Advocate with whom A-6, Ranbir Singh  was
practising was not examined.
The High Court  held  that  evidence  of  DW-6
cannot be doubted as there was no reason  to  disbelieve  him  and  plea  of
alibi taken by A-6, Ranbir Singh cannot be rejected on the ground  that  his
Senior Advocate Mr. S.C. Sharma was not examined and on  those  findings  as
recorded, High Court acquitted Ranbir Singh, the 6th  accused.
We  do  not
see any perversity in the appreciation of evidence  by  High  Court  and  we
find no substantial ground to interfere with  the  acquittal of A-6.
34.          Insofar  as  A-4,  Balkar  Singh  and  A-8,  Charan  Singh  are
concerned, the case of the prosecution is that
 A-4   gave  gandasi  blow  to
Narinder Singh on his left arm and A-8,
Charan Singh gave a  blow  with  his
sword on the right leg of Narinder Singh.
PW-10, Dr. Surinder Singh  stated
that death of the deceased was caused by sharp edged weapon  and  could  not
have been caused by any blunt weapon.
The High Court was of  the  view  that
the overt act of A-4, Balkar Singh  and  A-8,  Charan  Singh,  do  not  find
corroboration with medical evidence and on those  findings  the  High  Court
set aside the conviction of A-4, Balkar Singh  and  A-8,  Charan  Singh  and
acquitted them.
We, therefore, do not find any merit in the appeal preferred  by
accused (A-1, Dilawar Singh), (A3, Yash Pal),  and  (A-7,  Shamsher  Singh).
The appeal fails and the same is dismissed.  The appeals  against  acquittal
preferred by the State and by Chanda Singh also are dismissed.

   2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41916 

                                                             REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 1362 OF 2010

DILAWAR SINGH & ORS.                        …Appellants

                                   Versus

STATE OF HARYANA                                 ...Respondent
                                    WITH

                       CRIMINAL APPEAL NO. 826 OF 2010

STATE OF HARYANA                                 .. Appellant

                                   Versus

BALKAR SINGH & ORS.                               ..Respondents
                                     AND

                       CRIMINAL APPEAL NO. 830 OF 2010

CHANDA SINGH                                          .. Appellant

                                   Versus

RANBIR SINGH & ORS.                               ..Respondents

                               J U D G M E N T


R. BANUMATHI, J.

            Appellants Dilawar Singh (A-1),  Yash  Pal  (A-3)  and  Shamsher
Singh (A-7) in Criminal Appeal No.1362/2010 challenge the legality of  their
conviction for the offence  punishable  under  Section  302  IPC  read  with
Section 149 IPC and the sentence of  life  imprisonment  and  imposition  of
fine of  Rs.5,000/- each  and  also  challenge  their  conviction   for  the
offence punishable under Section 148 IPC and sentence  of  imprisonment  for
two years.  Being aggrieved by the acquittal of Balkar Singh  (A-4),  Ranbir
Singh (A-6) and Charan       Singh (A-8), State of Haryana and Chanda  Singh
– father of the deceased Narinder Singh have preferred Criminal Appeal  Nos.
826/2010 and 830/2010.
2.          Briefly stated  case  of  the  prosecution  is  that    deceased
Narinder Singh was running a shop for the sale of fertilizers at  the  Ladwa
Town and he was residing near Veterinary Hospital.  On  22.8.1998  at  about
8.45 p.m. Narinder Singh  was driving his motor cycle  and  when  he  turned
towards  Babain Road, in Ladwa  little ahead  of  the  veterinary  hospital,
Dilawar Singh (A-1), Gurdev  Singh  (A-2)  and  Yash  Pal  (A-3)  and  other
accused persons  namely Balkar Singh (A-4), Ashok Kumar (A-5)  Ranbir  Singh
(A-6), Shamsher Singh  (A-7),  Charan  Singh  (A-8)  and  Dalbir  Singh(A-9)
intercepted him.  Dilawar Singh (A-1), Yash Pal (A-3) and Shamsher Singh (A-
7) gave blow on the head of deceased Narinder Singh  with  their  respective
cutter and Narinder Singh fell down along with his motor cycle  and  shouted
Bachao Bachao. At that time Chanda Singh-father of the deceased  along  with
his brother Hakam Singh came nearby in  their  car   and   saw  the  accused
being attacked.  Chanda Singh and Hakam Singh cried  for  help  and  shouted
‘NA MARO NA MARO’.  Gurdev Singh (A-2) and Charan Singh (A-8)  caused  sword
blows on the  left leg and right leg of Narinder Singh.  Ranbir Singh  (A-6)
gave gandasi blow on the right hand of Narinder Singh whereas  Balkar  Singh
(A-4) gave gandasi blow to Narinder  Singh  on  his  left  arm.   Two  other
assailants  namely  Ashok  Kumar  (A-5)  and  Dalbir  Singh  (A-9)  attacked
Narinder Singh with hockey sticks and caused  injuries  to  Narinder  Singh.
In the meanwhile, Sham Singh (PW-7) also reached there and  he  too  shouted
at the accused not to kill Narinder Singh.  All the accused  fled away  from
the spot with their respective  weapons  in  their   motor  cycles.   Chanda
Singh (PW-6), Hakam Singh and Sham Singh (PW-7)  chased  the  assailants  in
their respective vehicles but they could not catch hold of  them.
3.          Further case of prosecution is that on 22.8.1998 at  about  9.00
p.m. ASI Charan Dass (PW-11) who was on  patrolling  duty  received  message
about an injured person lying near Veterinary Hospital, Ladwa and PW-11  and
police party went to the scene of occurrence and  shifted  injured  Narinder
Singh to Community Health Centre, Ladwa  where  Dr.  Ashwini  Kumar  (DW-1),
Medical Officer  of the Health Centre examined him and found him not fit  to
make  statement. In the meanwhile, Chanda Singh and Hakam Singh reached  the
spot and found that injured Narinder Singh had already been shifted  to  the
hospital by the police.   Chanda Singh (PW-6) went  to  the  Ladwa  Hospital
and Hakam Singh went to the   village  to  inform  the  family  members   of
Narinder Singh  about the incident.  When  Chanda  Singh  reached  Community
Health Centre at Ladwa, injured Narinder Singh was, in the process of  being
referred  to  the  Lok  Nayak  Jai  Prakash  Hospital,  Kurukshetra  as  his
condition  was  very   serious.   In  the  hospital  at   Kurukshetra,   Dr.
S.C.Grover (PW-1)  examined  the  injured–Narinder  Singh  and  opined  that
Narinder Singh was unfit to make any  statement.   Since  the  condition  of
Narinder Singh was serious, he was immediately referred  to  PGI  Chandigarh
and Chanda Singh shifted injured Narinder  Singh  to  PGI  Chandigarh.   Dr.
Munish Kumar (PW-9)  of  PGI  Chandigarh  admitted  Narinder  Singh  in  the
hospital on 23.8.1998 at about 2.30 a.m. and  intimation  was sent   to  the
police post located near the hospital. On receipt of  information  from  the
hospital,  ASI  Karam  Chand  (PW-4)  went  to  the  hospital  and  on   his
application  Dr. Kanya Rejangam (PW-8) opined that injured  Narinder   Singh
was unfit  to make statement.  Injured Narinder Singh succumbed to  injuries
at about  5.30 a.m. on 23.8.1998  and death intimation  was  sent   to   the
Police Post, PGI Chandigarh.  On the same day Chanda  Singh  came  back   to
Ladwa and went to the police station and lodged the complaint on  the  basis
of which FIR was registered at  Ladwa  Police Station, ASI Charan Dass  (PW-
11) went to PGI Chandigarh and conducted  the inquest  on the dead  body  of
deceased  Narinder  Singh.  In  PGI,  Dr.  Surinder           Singh  (PW-10)
conducted autopsy on the body of  Narinder  Singh   and   noted  18  incised
injuries and other injuries all over the body of  the  deceased  and  issued
the Post Mortem Certificate.  Dr. Surinder Singh  (PW-10)  opined  that  the
deceased died of cut injuries on the  head  and  due  to  haemorrhage   from
multiple  incised wounds.  The  accused  surrendered  before  the  court  on
various dates and on information of their surrender, Inspector  Jagdish  Ram
(PW-12) took the accused to police custody and  based  on  their  confession
the  weapons  and  motor  cycles  were   seized.     After   completion   of
investigation, the accused were charge sheeted under Section  302  IPC  read
with Section 149 IPC.
4.          To  bring  home  the  guilt  of  the  accused,  prosecution  has
examined PWs 1 to 16 and placed reliance on documents and material  objects.
The  accused  were  questioned  under  Section   313   Cr.P.C.   about   the
incriminating evidence and  circumstances  and  they  denied  all  of  them.
Accused Ranbir Singh took a plea of alibi by stating that he  is  practising
as an advocate at Kurukshetra  and was not present    at  the  spot  on  the
date of occurrence.  Gurdev Singh (A-2) also took  the  plea  of  alibi  and
stated that he was posted as a Naib Tehsildar and  in  connection  with  his
official work had gone to village Sardhaheri  on  the  date  of  occurrence.
The accused examined DWs 1to 6 as witness on their side.
5.           Upon   consideration  of  the  evidence,   the    trial   court
convicted and sentenced Dilawar Singh (A-1), Yash Pal  (A-3),  Balkar  Singh
(A-4), Ranbir Singh (A-6), Shamsher  Singh  (A-7)  and  Charan  Singh  (A-8)
under Section 302  IPC read with Section  149  IPC  and  sentenced  them  to
undergo life imprisonment and to pay a fine of Rs.5,000/- each with  default
clause and also convicted them for the  offence   punishable  under  Section
148 IPC and sentenced to undergo rigorous imprisonment for  two  years.  The
trial court acquitted Gurdev Singh  (A-2),  Ashok  Kumar  (A-5)  and  Dalbir
Singh(A-9).
6.           Being aggrieved  by  the  conviction  and  sentence,  convicted
accused 1,3,4 and 6 to 8 preferred appeal before the High Court.   The  High
Court confirmed  the conviction of  Dilawar Singh (A-1), Yash Pal (A-3)  and
Shamsher Singh (A-7)  and acquitted   Balkar Singh (A-4), Ranbir  Singh  (A-
6) and  Charan Singh (A-8).  Being  aggrieved  by  the  conviction,  Dilawar
Singh (A-1), Yash Pal (A-3) and Shamsher Singh  (A-7)  have  filed  Criminal
Appeal No. 1362/2010.  Being aggrieved by the acquittal of Balkar Singh  (A-
4), Ranbir Singh (A-6) and Charan Singh (A-8), State has preferred  Criminal
Appeal                  No.826/2010 and Chanda Singh  (PW-6)–father  of  the
deceased Narinder Singh has filed  Criminal Appeal No. 830/2010.
7.          Mr. Giri, learned Senior Counsel  appearing  for  the  convicted
accused Dilawar Singh  (A-1),  Yash  Pal  (A-3)  and  Shamsher  Singh  (A-7)
submitted that serious doubts arise as to the presence of Chanda Singh  (PW-
6) in the scene of occurrence  and trial court as well as High Court   ought
not to have based the conviction on the evidence of PW-6 and  conviction  of
the aforesaid  accused is not sustainable.
8.          Mr. Rao Ranjit, learned counsel, appearing  for  the  State  has
taken us through the evidence of Chanda Singh (PW-6) and Sham  Singh  (PW-7)
and other evidence and submitted that evidence of  PW-6 is corroborated   by
evidence of PW-7, recovery of weapons and  Serology Report and  courts  have
recorded concurrent findings of fact that PW-6 is  a  reliable  witness  and
the  same  does not  warrant interference.   The  learned  counsel   further
submitted that when the   learned courts have  believed the evidence of  PWs
6 and 7  qua  Dilawar Singh(A-1), Yash Pal(A-3)   and  Shamsher  Singh(A-7),
the courts ought not to have disbelieved the case of prosecution qua  Balkar
Singh (A-4),  Ranbir Singh (A-6) and  Charan Singh (A-8)  for  reversal   of
acquittal.
9.          We have heard the learned counsel appearing for the  accused  4,
6 and 8 who were acquitted and also            Mr. Shishpal  Laler,  learned
counsel appearing for the appellant- Chanda Singh.
10.         The prosecution case  revolves  around  the  ocular  version  of
Chanda Singh (PW-6) father of deceased  Narinder  Singh  who  witnessed  the
occurrence along with his brother Hakam Singh and Sham Singh (PW-7).  PWs  6
and 7 have spoken about the attack on the deceased and overt act of  accused
Dilawar Singh (A-1), Yash Pal (A-3) and Shamsher  Singh  (A-7)  and  others.
Hakam Singh was not examined.  Evidence of Sham  Singh  (PW-7)  corroborates
the version of Chanda Singh (PW-6). Learned courts below found the  evidence
of PW-6 trustworthy and recorded respective findings for convicting  Dilawar
Singh (A-1), Yash Pal (A-3) and Shamsher Singh (A-7)  and  acquitting  other
accused.
11.         Contending that Chanda  Singh (PW-6) could  not  have  witnessed
the occurrence  and the learned  courts erred  in  placing   reliance   upon
version of PW-6,  evidence  of  PW-6  is   interalia   assailed  on  various
grounds :- (i)  PW-6 had no reason  to  be   present  in  Babain  Road  near
Veterinary Hospital, Ladwa; (ii) Conduct of PW-6 is  not  natural   that  on
witnessing  the attack on  his  son,  he  had  not  naturally   reacted   in
trying to save his son but he is alleged to have chased the  accused;  (iii)
PW-6 had he been the witness, he would  have given  statement to the  police
immediately after  the  occurrence   and  there  would  not  have  been   an
inordinate delay in registration of FIR i.e. on 23.8.1998 at 11.00  A.M  and
the delay in registration of  FIR falsifies his evidence.
12.         Insofar as the contention of the appellants  that  Chanda  Singh
(PW-6) had no reason to be present in  the  place  of  occurrence,  deceased
Narinder Singh was dealing in fertilizers at Ladwa and  was  residing  in  a
house near the veterinary hospital of the town.  PW-6 has stated that  their
home  place Mehra is at a distance of 5 kms from Ladwa and is  connected  by
a pakka  road which leads  towards  Babain  from  Ladwa.  Village  Mehra  is
connected with this            Ladwa - Babain   road  by  a  link  road  and
when this link road is  connecting  PW-6’s  home  village  Mehra,  there  is
nothing  unusual about Chanda Singh  going  through   Babain  Road  and  his
presence in the  place of occurrence.  It is unreasonable to  contend   that
Chanda Singh (PW-6) had  no compelling reason  to be present  in  the  place
of occurrence.
13.         Learned counsel for the appellant contended that the conduct  of
 Chanda Singh (PW-6)  is unnatural and  being  father of  the  deceased  and
on seeing his son belaboured,    PW-6 had not swiftly   acted  to  save  his
son  and neither PW-6 nor Hakam Singh  or   Sham  Singh  (  PW-7)  took  the
deceased to the hospital and Chanda Singh and other  witnesses  are  alleged
to have left the injured at the place of incident and   proceeded  to  chase
the assailants and such unnatural  conduct of PW-6 only shows  that  he  was
not present at the place of occurrence.
14.         We find no merit in the submission that Chanda Singh  (PW-6)  is
to be disbelieved on the ground that  he  has  not  acted  in  a  particular
manner to save his son.  Every person who witnesses a murder reacts  in  his
own  way.  On seeing Narinder Singh being attacked,  PW-6  and  Hakam  Singh
might have been shocked and stunned.  Being two  together,  PW-6  and  Hakam
Singh might have perhaps thought of catching the assailants  and  appear  to
have chased them by following them in the car.
15.         In Rana Partap and Ors. vs. State of Haryana (1983) 3  SCC  327,
while dealing with the behaviour of the witnesses, this Court opined thus:
“6….Every person  who witnesses a murder reacts in his own  way.   Some  are
stunned, become speechless and stand  rooted   to  the  spot.   Some  become
hysteric and start wailing.  Some start shouting for help.  Others run  away
to keep themselves  as far removed from the spot  as possible.   Yet  others
rush to the rescue of the victim, even going  to  the   extent  of  counter-
attacking the assailants.  Every one reacts in his own special  way.   There
is no set rule of natural reaction.  To discard the evidence  of  a  witness
on the ground that  he  did  not  react  in  any  particular  manner  is  to
appreciate evidence in a wholly unrealistic and unimaginative way.”

   16.           In State of H.P. v. Mast Ram (2004) 8 SCC 660 it  has  been
stated that there is no set rule that  one must react  in a particular  way,
for the natural reaction of man is  unpredictable.  Everyone reacts in   his
own way and, hence, natural  human  behaviour  is  difficult   to  prove  by
credible  evidence.  It has to be appreciated in the context of given  facts
and circumstances of the case.  Similar view has  been  reiterated  in  Lahu
Kamlakar  Patil  and  Anr.  v.  State  of  Maharashtra  (2013)  6  SCC  417.

17.         Behaviour of the witnesses or their reactions would differ  from
situation  to  situation  and  individual  to  individual.  Expectation   of
uniformity in the reaction of witnesses would be  unrealistic  and  no  hard
and fast rule can  be   laid  down  as  to  the  uniformity  of   the  human
reaction.  The evidence of PW-6 is not to be disbelieved simply  because  he
did not react in a particular manner.  PW-6 explained how he happened to  be
there in  the  place  of  occurrence  and  had  cogently  spoken  about  the
occurrence and his  evidence  remained  unscathed  despite  searching  cross
examination.
18.         In his evidence  Chanda  Singh  (PW-6)  stated  that  they  have
chased the assailants for about 300 – 400  meters  and  then  abandoned  the
chase and returned to the place of occurrence after  fifteen   minutes.   In
the meanwhile, injured Narinder Singh  was  shifted   to   Community  Health
Centre, Ladwa by ASI Charan Dass (PW-11).  Sham  Singh  (PW-7)  stated  that
after  chasing the assailants they have returned to the place of  occurrence
within 5-7 minutes.  On behalf of the  appellants,  it  was  contended  that
chasing the accused to a distance of 200–300 meters would  have  taken  only
about 5-7 minutes  and the fact that  Narinder  Singh  was  shifted  to  the
hospital by the time PW-6 returned  to the place of occurrence   only  shows
that PW-6 was not present at the time of occurrence and  that  he  has  been
planted as an  eye-witness subsequently.  Version of  PW-6  that  they  have
chased the assailants and came back after  about  15-20  minutes,  does  not
affect  his credibility  nor the prosecution case. It is brought  on  record
that on the date of occurrence i.e. 22.8.1998 there was  solar  eclipse  and
Solar Eclipse Fair  was going  on   in  Kurukshetra   and  large  number  of
people congregated and the place  of  occurrence   and   nearby   place  was
crowded  with  temporary bazaars and exhibitions and therefore   PW-6  could
come back  to the place of occurrence  only after  15  minutes  and  in  the
meanwhile injured Narinder  Singh  was  shifted       to   Community  Health
Centre, Ladwa by ASI Charan         Dass (PW-11).  The  alleged  time  taken
in chasing the accused  and the fact that in the meanwhile   Narinder  Singh
was shifted  to  the Community Health Centre, Ladwa, in our view,  does  not
 militate  against the credibility  of PW-6.
19.         Learned counsel  for the appellants then contended  that  police
station in Ladwa is situated within a  short  distance  from  the  place  of
occurrence and yet no information was given to the  police  immediately.  It
was submitted that Chanda Singh (PW-6) had  not given statement   to  police
either at Ladwa or at Kurukshetra or atleast to PW-4, ASI   Karam  Chand  of
Police Post  at PGI Chandigarh  who came to  the  hospital   on  receipt  of
information  of admission  of  injured Narinder Singh in PGI Chandigarh  and
FIR was registered only on 23.8.1998  at  11.00  A.M.  and   the  inordinate
delay in giving information to the  police and registration  of  FIR  raises
serious  doubts  about   the   credibility    of    prosecution   case   and
trustworthiness of PW-6.
20.         We find no merit  in the submission that  delay in  registration
of   FIR  is  fatal  to the prosecution case  for the reason that  delay  is
satisfactorily explained by the prosecution.  Let  us  briefly  recapitulate
the sequence of events.  After chasing the assailants for few minutes,  PW-6
came to Community Health Centre, Ladwa  at 9.00  –  9.15  P.M.  Hakam  Singh
went to village Mehra to inform   the  family   members  and  for  arranging
money.  By the time  PW-6  arrived  in  the  Ladwa  Hospital,  the  hospital
authorities were making  arrangement to refer  the  injured  to  Kurukshetra
as his condition was  very  serious.    By  the  time  PW-6  went  to  Ladwa
Hospital, PW-11 left to village  Mehra  to  inform  the  family  members  of
injured Narinder Singh.  Evidently in Ladwa Hospital, PW-6  could  not  have
met ASI Charan Dass  (PW  11).  PW-6  shifted  the  injured  to  Kurukshetra
Hospital at        10.30-11.00 P.M. and then  shifted  Narinder  Singh  from
Kurukshetra Hospital to PGI Chandigarh. They left Kurukshetra between 11.30-
12.00  P.M.  for  PGI  and  reached  PGI   Chandigarh   at   2.30  A.M.   on
23.8.1998.  ASI Charan Dass (PW 11) reached Kurukshetra Hospital   at  about
11.30 P.M. and moved an application to the doctor regarding fitness  of  the
injured  to make  a statement.  Again in Kurukshetra there  was  hardly  any
time for PW-6 to meet  PW-11,  ASI  Charan   Dass.    There  is  nothing  on
record  showing that PW-6 met PW-11  either  at  Ladwa  or  at  Kurukshetra.
When PW-6 was busy in arranging  medical aid  to  save  his  son,  delay  in
lodging  the  FIR cannot be said to  be  fatal.   The   sequence  of  events
clearly show that PW-6 was taking all steps to save the  life  of   his  son
and making  arrangements for  money, ambulance etc.
21.         Whether the delay  is so long as to draw a cloud   of  suspicion
on the prosecution case will depend upon variety of factors which will  vary
from case to case.    As pointed out by the learned courts,  from  the  very
beginning the condition of  injured Narinder Singh  was   very  serious  and
he was struggling for existence  and his father PW-6 and uncle  Hakam  Singh
were concerned about the welfare  of the injured.  While so, they could  not
have thought of approaching  the  police first  and  informing   them  about
the incident and the assailants.   Where  delay  in  lodging  complaint  and
registration of FIR has been satisfactorily explained, the delay  by  itself
was no ground for disbelieving the prosecution  evidence  particularly  when
it had  been accepted both by the Sessions Court and the High Court.
22.         Coming to the  further  contention  of  the  appellants  raising
doubts about   the credibility of PW-6  in  not  making  any  statement   at
least to ASI  Karam Chand (PW-4) of Police Post PGI Chandigarh,  on  receipt
of  the information regarding  admission  of  injured  Narinder  Singh,  ASI
Karam Chand (PW-4)  went to the PGI Hospital  to record  the  statement   of
injured  Narinder Singh. At that time, Chanda  Singh  (PW-6)  was  attending
his son.  The contention of the appellants is that   PW-6 had  the  occasion
to  inform the police  about the incident   at least to ASI Karam Chand (PW-
4) but the same was not done which raise serious doubts about  the  presence
of Chanda Singh (PW-6) at  the  scene  of  occurrence.  By  perusal  of  the
evidence of PW-4, it is seen that on receipt  of  intimation  (rukka)   from
PGI Chandigarh, PW-4 rushed to the  hospital  for  recording  the  statement
of  injured Narinder Singh.  Since Chanda Singh (PW-6)  did  not  offer  any
statement  to ASI Karam Chand  (PW-4), since Narinder Singh was then  alive,
there was no occasion for recording  the statement  of Chanda Singh.  It  is
also brought in evidence that after the death of  Narinder Singh  ASI  Karam
Chand (PW-4) did not  go to  PGI for the second time.  In our  view,   there
is no merit in the submission  that PW-6 is to be disbelieved on the  ground
that he did not  choose to give  any statement at least to ASI  Karam  Chand
(PW-4).
23.         Narinder Singh died at 5.30 A.M.  on  23.8.1998  and  thereafter
Chanda Singh (PW-6) went to Ladwa Police Station on 23.8.1998 at 11.00  A.M.
and lodged the complaint and FIR was registered  as Ext PE No. 314/1998   at
Ladwa Police Station.  Sequence of  events  clearly  show   that  PW-6   was
attending  his son and was taking  steps to shift   injured  Narinder  Singh
from  Community Health Centre Ladwa  to  Lok  Nayak  Jai  Parkash  Hospital,
Kurukshetra and from Kurukshetra to PGI Chandigarh  and  PW-6  was  busy  in
arranging  for money, medical aid and ambulance etc.  The  delay  of   about
15 hours  and 15 minutes  in lodging  the FIR,   in  our  view,   cannot  be
said to be fatal.  Learned courts have  recorded   concurrent  finding  that
the  delay in registration  of FIR  has been  satisfactorily  explained  and
the delay is not fatal to the prosecution case.
24.         While appreciating the  evidence  of  a  witness,  the  approach
must be whether the evidence  of the witness  read as  a  whole  appears  to
have a ring  of truth. Once that impression is formed it  is  necessary  for
the court  to scrutinize  the evidence,  to find out whether it  is  against
the  general tenor of the prosecution  case.   Learned  courts  below  found
evidence of PW-6 reliable and accepted the same.  The power  of  this  Court
under Article 136 of the  Constitution  are  very  wide.   But  in  criminal
appeals this Court does not interfere with the concurrent findings  of  fact
save in exceptional circumstances. When the learned courts below  found  the
evidence of PW-6 reliable and acceptable, we do not find any  perversity  in
the approach of the  learned  courts  in  accepting  the  evidence  of  PW-6
warranting interference in exercise of  jurisdiction under  Article  136  of
the Constitution of India.
25.         Evidence of Chanda Singh (PW-6) is corroborated by the  evidence
of Sham Singh (PW-7).  Credibility of PW-7 is assailed on  the  ground  that
he was also challaned along with Narinder Singh in  criminal  case  in  1994
and that PW-7 has animosity against the accused  persons.   The  mere   fact
that PW-7 was also challaned along with  Narinder  Singh  and  that  he  was
inimical towards the accused would not result  in  mechanical  rejection  of
evidence of  such a witness; but would only make the  court  cautious  while
evaluating   the   testimony  of  the  witness  and  we  do  not  find   any
infirmity in the  appreciation of  evidence  of  PW-7   by  the  courts  and
relying  upon the same as corroborative evidence.
26.         PWs 6 and 7 have spoken in one voice against Dilawar  Singh  (A-
1), Yash Pal (A-3)  and  Shamsher  Singh  (A-7).   Their  evidence  is  also
corroborated by the medical evidence  of  Dr.  Surinder  Singh  (PW-10)  who
conducted the autopsy on the body of  Narinder Singh.   As  per  Post-Mortem
Certificate, 18 incised wounds were found on the body of the deceased  which
strengthen the prosecution case as to the overt act of the accused 1, 3  and
7.  Based on the confessional statement of the disclosure of  Dilawar  Singh
(A-1), Yash Pal (A-3) and Shamsher   Singh  (A-7)   cutters  were  recovered
and detection of human blood in those cutters also  lends  credence  to  the
prosecution case.
27.         Placing  reliance  on  the  evidence  of  DW-1,              Dr.
Ashwini Kumar feeble attempt was made to contend that serious  doubts  arise
about the prosecution case.  Of  course,  according  to  DW-1,  Dr.  Ashwini
Kumar who admitted injured Narinder  Singh   in  Ladwa  Hospital,  he  found
only five injuries on the person of  the injured and  he  opined  that   the
same had been caused by blunt weapon.  As per Post Mortem  Certificate    as
many as 18 incised wounds were found on the  body  of  Narinder  Singh.   As
held by the learned courts DW-1 did not examine the injuries on  the  person
of the injured in  right  perspective  and  did  not  correctly  record  the
injuries on the  person  of  Narinder  Singh.   Opinion  of  DW-1  that  the
injuries were the result of blunt weapon is false and  for  that  reason  he
has been rightly challaned by the police for the  offence  punishable  under
Section 218 IPC on the ground that he had  prepared  the  wound  certificate
falsely.  Reasonings contained in paragraphs 44 and 45 in  the  judgment  of
the Sessions Court sufficiently answer the arguments advanced on  behalf  of
the appellant and the evidence of DW-1 is of no assistance to  the  accused.

28.         The trial court and the High Court recorded concurrent  findings
holding that the appellants accused Dilawar Singh (A-1), Yash Pal (A-3)  and
Shamsher Singh (A-7) have committed the offences  punishable  under  Section
302 IPC read with Section 149 IPC and under Section 148 IPC.   It  has  been
repeatedly held  by this Court  that  even  though   powers  of  this  Court
under Article 136 of the Constitution  are  very wide, in  criminal  appeals
this Court does not interfere with the concurrent  findings of   fact,  save
in exceptional circumstances.
29.          Considering the scope of power of this Court under Article  136
of the Constitution in criminal appeals,  in the case
of Ganga Kumar Srivastava vs. State of  Bihar  (2005)  6  SCC  211,   it  is
observed:
“From the aforesaid series of decisions  of this Court on  the  exercise  of
power of the Supreme Court  under Article 136 of the Constitution  of  India
following principles emerge:-

      (i) The powers of this Court  under Article  136 of  the  Constitution
are very wide  but in criminal appeals  this  Court  does  not  interference
with the concurrent findings  of fact save  in exceptional  circumstances.
      (ii) It is open to this Court   to  interfere  with  the  findings  of
fact  given  by the High Court,  if the High  Court    has acted  perversely
 or otherwise  improperly.
      (iii) It is open to this  Court  to invoke  the  power  under  Article
136 only in very exceptional  circumstances as  and when  a question of  law
of general public importance  arises or a  decision  shocks  the  conscience
of the Court.
      (iv) When the evidence adduced by the prosecution  fell short  of  the
test  reliability and acceptability  and as  such it is  highly  unsafe   to
act upon it.
(v) Where  the appreciation of evidence  and  finding  is  vitiated  by  any
error of law or procedure  or found  contrary  to the principles of  natural
justice, errors of record  and misreading  of the evidence,  or  where   the
conclusions   of   the   High   Court    are   manifestly    perverse    and
unsupportable  from the evidence  on record.”


30.          In the case of Charanjit  & Ors. vs. State of Punjab  and  Anr.
(2013) 11 SCC 163, it was observed as under:-
“26. Thus, the trial court and the  High  Court   have  recorded  concurrent
findings  of facts holding  the appellants  guilty  of  the  offences  under
Sections 323/34, 504/34, 376(2) (a) and 376 (2) (g)  IPC and  the  appellant
Radha Krishan guilty  of the offence  under Section 342 IPC  also.   It  has
been repeatedly held by this Court  that even though  the  powers   of  this
Court  under Article 136 of the Constitution  are  very  wide,  in  criminal
appeals this Court does not interfere    with  the  concurrent  findings  of
facts, save in  exceptional  circumstances   where  there  has   been  grave
miscarriage    of justice {Sambhu Das v.  State  of  Assam   (2010)  10  SCC
374}.  As we have found that the concurrent findings of  facts  recorded  by
the trial court  and the High Court   in  this  case  are  based  on   legal
evidence and there is no miscarriage of justice as such by  the  two  courts
while arriving at the said findings, we are not   inclined  to  disturb  the
impugned  judgment  of the High Court  in exercise of our  discretion  under
Article 136 of the Constitution.”

31.          As we  have  found    that  the  concurrent  findings  of  fact
recorded by the trial court and the High  Court  qua  Dilawar  Singh  (A-1),
Yash Pal (A-3) and Shamsher Singh (A-7)    are based  on  evidence,  in  our
view, there is no miscarriage  of  justice   by  the  learned  courts  while
arriving at the said findings and  we are  not  inclined  to   disturb   the
impugned judgment  of the High Court in exercise of   our  discretion  under
Article 136 of the  Constitution.   The  appeal  preferred  by  the  Dilawar
Singh(A-1), Yash Pal (A-3) and Shamsher Singh (A-7)  fails   and  is  liable
to be dismissed.
32.         Appeals   against  Acquittal   qua  Balkar  Singh         (A-4),
Ranbir Singh (A-6)  and  Charan  Singh  (A-8):-   Being  aggrieved  by   the
acquittal of Balkar Singh (A-4), Ranbir Singh (A-6)  and Charan  Singh   (A-
8), State and Chanda Singh  have preferred Criminal Appeal No. 826/2010  and
Criminal Appeal No.  830/2010.
33.         A-6, Ranbir Singh  has put forth defence  plea  of  alibi.  A-6,
Ranbir Singh was a practising lawyer at Kurukshetra and he was working as  a
junior advocate in the office of  Senior  Advocate,  Mr.  S.C.  Sharma.  Mr.
Yudhvir Singh, advocate was examined as DW-6, who was also  practising  with
Mr. S.C.Sharma.  He stated that on the date  of  occurrence     A-6,  Ranbir
Singh was in the  office  of  Senior  Advocate  and  not  at  the  place  of
occurrence.  Trial Court has not accepted the plea of alibi  raised  by  him
only on the ground that the Senior Advocate with whom A-6, Ranbir Singh  was
practising was not examined.  The High Court  held  that  evidence  of  DW-6
cannot be doubted as there was no reason  to  disbelieve  him  and  plea  of
alibi taken by A-6, Ranbir Singh cannot be rejected on the ground  that  his
Senior Advocate Mr. S.C. Sharma was not examined and on  those  findings  as
recorded, High Court acquitted Ranbir Singh, the 6th  accused.   We  do  not
see any perversity in the appreciation of evidence  by  High  Court  and  we
find no substantial ground to interfere with  the  acquittal of A-6.
34.          Insofar  as  A-4,  Balkar  Singh  and  A-8,  Charan  Singh  are
concerned, the case of the prosecution is that A-4   gave  gandasi  blow  to
Narinder Singh on his left arm and A-8, Charan Singh gave a  blow  with  his
sword on the right leg of Narinder Singh.  PW-10, Dr. Surinder Singh  stated
that death of the deceased was caused by sharp edged weapon  and  could  not
have been caused by any blunt weapon. The High Court was of  the  view  that
the overt act of A-4, Balkar Singh  and  A-8,  Charan  Singh,  do  not  find
corroboration with medical evidence and on those  findings  the  High  Court
set aside the conviction of A-4, Balkar Singh  and  A-8,  Charan  Singh  and
acquitted them.
35.         The court of appeal would  not  ordinarily  interfere  with  the
order of acquittal unless the approach is vitiated by  manifest  illegality.
In an appeal against acquittal, this Court will not interfere with an  order
of acquittal merely because  on the evaluation of the evidence, a  different
plausible view may arise and   views  taken  by  the  courts  below  is  not
correct.  In other words, this  Court must come to the conclusion  that  the
views taken by the learned courts below, while  acquitting,  cannot  be  the
views of a reasonable person on the material on record.
36.         In Chandrappa and Ors. v. State of Karnataka (2007) 4  SCC  415,
the scope of power  of  appellate  court  dealing  with  an  appeal  against
acquittal has been considered and this Court held as under:
“42…..(4)   An appellate court, however, must bear in mind that in  case  of
acquittal, there is double presumption in favour of the  accused.   Firstly,
the presumption of innocence is  available  to  him  under  the  fundamental
principle of criminal jurisprudence that every person shall be  presumed  to
be innocent unless he  is  proved  guilty  by  a  competent  court  of  law.
Secondly, the accused having secured his acquittal, the presumption  of  his
innocence is further reinforced, reaffirmed and strengthened  by  the  trial
court.
(5)   If two reasonable  conclusions  are  possible  on  the  basis  of  the
evidence on record, the appellate court should not disturb  the  finding  of
acquittal recorded by the trial court.”


Unless there are substantial and compelling reasons, the order of  acquittal
is not required to be reversed in appeal.  It has been so  stated  in  State
of Rajasthan vs. Shera Ram (2012) 1 SCC 602.
37.         On evaluation of the evidence found  by  the  High  Court  while
recording an order of acquittal, in our  view,  does  not  suffer  from  any
infirmity or illegality or manifest error.  We see no  reason  to  interfere
with the order of acquittal of Accused 4, 6 and 8.
38.         We, therefore, do not find any merit in the appeal preferred  by
accused (A-1, Dilawar Singh), (A3, Yash Pal),  and  (A-7,  Shamsher  Singh).
The appeal fails and the same is dismissed.  The appeals  against  acquittal
preferred by the State and by Chanda Singh also are dismissed.

                                                              ………………………………J.
                                                               (T.S. Thakur)



                                                             ……………………………….J.
                                                              (R. Banumathi)

New Delhi;
September 16, 2014

-----------------------
29


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.