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Wednesday, March 11, 2015

There is no doubt about the occurrence having taken place, in which Jagsir Singh was killed by the accused and that his injuries were caused by 'kassis.' There is clear evidence that the accused party comprised of Gurdial Singh, his wife Surjit Kaur along with their sons Gurjit Singh and Surjit Singh. Gurjit and Surjit were armed with 'kassis.' There are two injuries made by the 'kassis'; on the back of the head and the other on the face of the deceased, Jagsir Singh. The eye-witnesses accounts of Mander Singh (PW13) and Sukhwinder Kaur (PW14), who were undoubtedly present, in no uncertain terms reveals that Jagsir Singh was attacked by the accused party i.e. Gurjit Singh and Surjit Singh. Sukhwinder Kaur has stated that the accused Gurjit gave a 'kassi' blow on the back of the head of Jagsir Singh, as a result of which he fell. Further, that the second 'kassi' blow was given on the right side of the face of Jagsir Singh. The inference drawn by the Trial Court that Sukhwinder Kaur intended to name Gurjit Singh, as the person who also caused the second blow is unwarranted. The acquittal of Surjit Singh on that ground is also not sustainable. Some element of confusion was sought to be created in the defence version by alleging, vide Kuldeep Kaur's (DW1) deposition that Jagsir Singh received the second blow because he fell after receiving the first blow on a 'kassi' lying beside Gurdial Singh, which cut his face on the right side.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL  APPEAL No. 519 OF 2010




GURJIT SINGH alias GORA AND ANR.                      .... APPELLANTS



                                   VERSUS



STATE OF HARYANA                                          .... RESPONDENT




                                 1 JUDGMENT



S. A. BOBDE, J.



1.    This appeal has been preferred by the accused Gurjit Singh alias  Gora
and Surjit Singh alias Sukha, from the Judgment of the High Court of  Punjab
and Haryana  at  Chandigarh,  convicting  the  appellants  -  accused  under
Section 302 read with Section 34  of  the  Indian  Penal  Code  [hereinafter
referred to as "IPC"] for the murder of Jagsir Singh on 17.10.1998 at  about
2.15 pm at village Ganga (Dabwali), District Sirsa, Haryana.

The relationship between the parties is as follows:



                                    [pic]

2.    According to the  prosecution,  on  17.10.1998  at  about  2.15  p.m.,
Jagsir Singh left his home to go to a shop  for  purchasing  Zarda  (chewing
tobacco).  His house was  adjacent  to  the  house  of  the  accused.   Soon
thereafter, his brother  Mander  Singh  (PW13),  his  wife  Sukhwinder  Kaur
(PW14) and Paramjit Kaur heard hot  words  being  exchanged  between  Jagsir
Singh (deceased) and the accused.   Mander Singh along with Sukhwinder  Kaur
went out of their house to see as to what had happened.  They saw  that  the
accused had surrounded Jagsir Singh.  Accused Gurjit and Surjit  were  armed
with 'kassis' (spades) whereas Gurdial Singh, the father of the accused  and
Surjit Kaur, their mother, were unarmed.   Gurdial  Singh  and  Surjit  Kaur
exhorted Gurjit and  Surjit  that  Jagsir  Singh  be  taught  a  lesson  for
bringing the 'Kanungo' (revenue inspector) to the  village  for  demarcation
of their property.  Gurjit then struck Jagsir Singh on the back of his  head
with a 'kassi', causing him to fall.  Thereafter, Surjit also struck  Jagsir
Singh on his face with a 'kassi.'  Accused Surjit Kaur then  dragged  Jagsir
Singh towards the village lane.



3.    As per the prosecution,  Mander  Singh  (PW13),  the  brother  of  the
deceased and Sukhwinder Kaur (PW14)  had  been  restrained  by  the  accused
Gurdial Singh and his wife Surjit  Kaur  from  approaching  the  site  where
Jagsir Singh had been cornered by the accused  brothers.  Mander  Singh  and
Sukhwinder Kaur made frantic calls for help, thereby attracting many  people
from the locality to the scene of the incident.  The  accused  escaped  from
the scene with their weapons.



4.    Jagsir Singh was immediately removed to the Community  Health  Centre,
Dabwali.  The doctor there provided  first  aid  and  referred  him  to  the
General Hospital at Sirsa, which is at a distance of about 60 Kms, where  he
was declared as brought dead.



5.    After completion of investigation, a report under Section 173  of  the
Code of Criminal Procedure, 1973 (hereinafter referred to as the  'Cr.P.C.')
was presented in court.   The accused were charged under  Sections  302  and
341 read with Section 34 of the  IPC.   An  autopsy  was  conducted  by  Dr.
Jagdish Choudhary (PW4) along with Dr. Yogesh Sangwan.  At  the  trial,  the
prosecution examined 15 witnesses including Mander Singh (PW13), brother  of
Jagsir Singh (deceased) and Sukhwinder Kaur (PW14), widow of  the  deceased.
After the closure of the prosecution evidence,  statements  of  the  accused
were  recorded  under  Section  313  Cr.P.C.,  in  which  they  denied   the
allegations and pleaded false implication.   The  accused  examined  Kuldeep
Kaur (DW1) and Dr. Bhushan Garg (DW2) in their defence.



6.    The two parties are related by  blood.   Gurdial  Singh  and  Mukhtiar
Singh, are sons of one Miyan Singh.  Mukhtiar Singh is  father  of  deceased
Jagsir Singh.  The two brothers were owners in possession of  2/3  share  of
total land measuring 157 Kanals  and  19  Marlas  situated  in  the  revenue
estate of village Ganga,  Tehsil  Dabwali,  District  Sirsa.   The  sons  of
Mukhtiar Singh  i.e.  the  complainant  party,  believed  that  their  uncle
Gurdial Singh and his sons i.e.  the  accused  party,  had  encroached  upon
their land.  They had therefore moved an application for demarcation of  the
property.  The accused were not in agreement with the course adopted by  the
complainants.   Therefore, they cornered the deceased Jagsir Singh in  front
of their house when he was on his way to the village market.  The  acquitted
accused, Gurdial Singh and his wife Surjit  Kaur  had  exhorted  their  sons
i.e. Surjit and Gurjit, to commit the crime.



7.     It  is  significant  that  in  defence,  the  accused  admitted   the
occurrence.   Their  version,  however,  has  differed  from  that  of   the
prosecution. According to them, Gurdial Singh was digging in the street  and
was dumping mud along the  wall  of  his  house.  Thereafter,  Jagsir  Singh
(deceased) came there  armed  with  a  'gandasi'  (sharp-edged  weapon)  and
raised a 'Khangura' (a provocative sound made to incite another person).  In
response, Gurdial asked Jagsir Singh why he had made  that  sound  since  he
had brought him up as  a  child.  Jagsir  Singh  responded  by  demanding  a
certain piece of land from Gurdial Singh.  Thereafter, Jagsir  Singh  struck
Gurdial Singh with the 'gandasi' on his head. It  is  further  stated,  that
Gurdial Singh then rushed into his  house  with  Jagsir  Singh  in  pursuit.
Thereafter, Jagsir Singh struck him again  with  the  reverse  side  of  the
weapon.  Meanwhile, Gurjit, Gurdial's son, picked up a 'kassi' and tried  to
save his father from the hands of  Jagsir  Singh.  In  the  process,  Gurjit
struck Jagsir Singh on the back of his head, causing  him  to  fall  on  the
sharp side of the 'kassi' which had fallen from the hands of Gurdial  Singh.
Learned counsel for the appellants  thus  pleaded  self-defence  and  sudden
provocation before us.



8.     The Doctor (PW4), who conducted the  autopsy  on  the  dead  body  of
Jagsir Singh, observed two incised wounds i.e. one over the scalp  extending
4 cms behind the left ear and the other extending from the nasal  septum  to
2 cms below the right external ear.  In  the  opinion  of  the  doctor,  the
cause of death was shock and hemorrhage as a result  of  injuries  to  vital
organs, which were ante-mortem in nature.



9.    At this stage, it is apposite to notice that the  injury  is  said  to
have been caused to Gurdial Singh by Jagsir Singh with a  'gandasi'  (sharp-
edged weapon).  As per the  First  Information  Report,  the  incident  took
place at about 2.15 pm.  At around 6.55 pm, in the  evening,  Gurdial  Singh
went to the Primary Health Center at Odhan and got himself examined  by  the
medical officer on duty there, namely, Dr. Bhushan Garg (DW2).   The  Doctor
found:

1.    An incised wound 4 cms x 1 cm on the right parietal area of  head  and
it was 6 cms above the right ear.  Fresh bleeding was  present  and  margins
were sharp.  The doctor advised an x-ray for this injury.

2.    A contusion 3 cms x 1 cm on the left hand on the dorsal aspect at  the
base of left thumb and it was transversely placed.   Severe  tenderness  was
present.

This doctor prepared a skiagram (an x-ray image) of the injuries and sent  a
ruqa to the Police Station, Odhan.  Further,  although  this  witness  ruled
out the injury by a friendly  hand  or  by  self,  he  did  not  reject  the
possibility of  the  injuries  being  self-inflicted.   Significantly,  this
witness admitted in his cross-examination  that  the  injured  i.e.  Gurdial
Singh, did not offer himself for radiological examination  and  further,  he
did not disclose the history of the injuries to him.



10.   It is equally significant that the weapon, which is said to have  been
used to cause this injury to Gurdial Singh i.e.  the  'gandasi,'  was  never
recovered.



11.   The Trial Court accepted the defence  version  in  its  entirety.   It
came to the conclusion that Gurjit caused an injury on the  head  of  Jagsir
Singh (deceased) in self-defence i.e. after Jagsir had  attacked  his  uncle
Gurdial Singh on the head with a 'gandasi.'  That  thereupon,  Jagsir  Singh
fell face down on the 'kassi' which had allegedly fallen from the  hands  of
Gurdial.  The Trial Court  completely  acquitted  the  other  accused  Sukha
alias Surjit Singh.  The Trial Court concluded that Surjit had  no  role  to
play  because  Sukhwinder  Kaur,  Jagsir  Singh's  widow,  stated   in   her
deposition that Gurjit  had  struck  Jagsir  Singh  on  the  head  with  the
'kassi.'  The second 'kassi' blow, however, was given on the right  side  of
the face of Jagsir Singh.  Because she had not mentioned  the  name  of  the
person who had given the second blow on the face of the deceased, the  Trial
Court concluded, that  the  witness  attributed  the  second  blow  also  to
Gurjit.



12.   The Trial Court seems to have attached no importance to the fact  that
the recovery of the weapon (the 'kassi') was made at  the  instance  of  the
accused Surjit Singh. This was simply dismissed as highly improbable.

13.   The learned counsel  for  the  appellants,  Dr.  J.P.  Dhanda,  placed
reliance on Chandrappa & Ors v. State of Karnataka (2007) 4 SCC  415,  State
of M.P. v. Ramesh & Anr (2011)  4  SCC  786  and Ranjitham  v.  Basavaraj  &
Ors (2012) 1 SCC  414  to  submit  that  in  an  appeal  against  acquittal,
interference by the Appellate Court is  not  warranted  in  the  absence  of
perversity in the judgment of the Trial Court. These judgments do  not  help
the cause of the appellants because the  High  Court  has  given  clear  and
cogent reasons to show that the judgment of the  Trial  Court  was  perverse
and not based on the evidence on record.  

Further, Dr. Dhanda relied on Arun Raj v. Union of India JT 2010 (5)  SC  1;
and Kapildeo v. State of U.P. 1983 SCC (Crl) 311 to show  that  the  offence
committed by the appellants fell within the scope of Section 304 Part II  of
IPC and not under Section 302 of IPC. It is pertinent to note  that  in Arun
Raj (supra) this  Court  had  rejected  the  defence  of  grave  and  sudden
provocation and convicted the appellant under Section 302  of  IPC.  Whereas
in Kapildeo (supra) this Court altered the conviction from Section 304  Part
I to Section 304 Part II of IPC.  The circumstances in the above cases  were
entirely different from the present case.



14.   We might state at this stage itself that upon reading of the  evidence
of Mander Singh (PW14), it  cannot  be  said  that  Sukhwinder  Kaur  (PW13)
stated that the second 'kassi' blow was given on the right side of the  face
of Jagsir Singh to mean that the second  blow  was  also  caused  by  Gurjit
Singh alias Gora.  The Trial Court also seems to  have  missed  the  defence
version, according to which Jagsir Singh received  the  second  injury  from
the 'kassi' because he fell on the ground where the 'kassi' was  lying,  and
not because Gurjit Singh caused it, vide  the  deposition  of  Kuldeep  Kaur
(DW1), wife of Surjit Singh.



15.   As stated above, the Trial Court  acquitted  Surjit  Singh  completely
and also Gurjit Singh of the charge under Section  302  IPC,  accepting  the
defence version that Gurjit attacked deceased Jagsir Singh only to save  the
life of his father - Gurdial  Singh,  who  had  allegedly  been  injured  by
Jagsir Singh.  The Trial Court convicted  Gurjit  Singh  under  Part  II  of
Section 304 IPC.



16.   In appeal, the High Court reassessed the entire evidence and  came  to
the conclusion that it cannot be said to be the duty of the  prosecution  in
the circumstances to explain injuries on the person of the accused,  Gurdial
Singh, particularly, since Gurdial neither offered himself for  radiological
examination nor had he disclosed the history of his injuries to the  doctor.
The High Court opined that the non-explanation of injuries  is  insufficient
to discard the case of the prosecution, if it otherwise inspires  confidence
and is worthy of credence.   The High Court disagreed with the  Trial  Court
and held that there is no reason  to  disbelieve  the  statement  of  Mander
Singh, the brother of the deceased and  Sukhwinder  Kaur,  the  widow,  only
because they were near relations of the deceased. It is  settled  law,  that
the statement of a relative of the deceased cannot be  discarded  merely  on
the ground that he or she is an interested party. In Anwar Ali v.  State  of
U.P., (2011)  15  SCC  360,  this  Court  rightly  observed  that  once  the
prosecution has been able to  prove  its  case  by  leading  admissible  and
cogent evidence with reference to statements  of  the  witnesses,  the  same
cannot be brushed  aside  merely  on  the  ground  that  the  witnesses  are
relatives of the deceased. In Kartik Malhar v. State of Bihar, (1996) 1  SCC
614, this Court held that even a close relative who  is  a  natural  witness
cannot  be  regarded  as  an  interested  witness.  The  term   "interested"
postulates that the witness must have some direct  interest  in  having  the
accused somehow or the other convicted for some animus  or  for  some  other
reason. More recently, this principle was upheld in Ashok Rai  v.  State  of
U.P., (2014) 5 SCC 713, whereby this Court clearly stated that the  evidence
of interested witnesses is not infirm. The High  Court  has  also  disagreed
with the Trial Court that the fight took place at the  spur  of  the  moment
and the accused had not conspired with  each  other  to  commit  the  crime,
since     there     was      no      evidence      to      that      effect.


17.   Having considered the entire matter, we  are  of  the  view  that  the
circumstances of the case point out to the commission  of  the  crime  under
Section 302 IPC, as observed earlier.



18.   There is no doubt about the occurrence having taken  place,  in  which
Jagsir Singh was killed by the accused and that his injuries were caused  by
'kassis.'  There is clear evidence  that  the  accused  party  comprised  of
Gurdial Singh, his wife Surjit Kaur along with their sons Gurjit  Singh  and
Surjit Singh.  Gurjit and Surjit were armed with 'kassis.'   There  are  two
injuries made by the 'kassis'; on the back of the head and the other on  the
face of the deceased, Jagsir Singh.  The eye-witnesses  accounts  of  Mander
Singh (PW13) and Sukhwinder Kaur (PW14), who were  undoubtedly  present,  in
no uncertain terms reveals that Jagsir Singh was  attacked  by  the  accused
party i.e. Gurjit Singh and Surjit Singh.  Sukhwinder Kaur has  stated  that
the accused Gurjit gave a 'kassi' blow on the back of  the  head  of  Jagsir
Singh, as a result of which he fell.  Further, that the second 'kassi'  blow
was given on the right side of the face  of  Jagsir  Singh.   The  inference
drawn by the Trial Court  that  Sukhwinder  Kaur  intended  to  name  Gurjit
Singh, as the person who also caused the second blow  is  unwarranted.   The
acquittal of Surjit Singh on that ground  is  also  not  sustainable.   Some
element of confusion was sought to be created  in  the  defence  version  by
alleging, vide Kuldeep Kaur's (DW1) deposition that  Jagsir  Singh  received
the second blow because he fell after receiving the first blow on a  'kassi'
lying beside Gurdial Singh, which cut his face on the right side.



19.   The Trial Court has come up with  an  inference,  which  is  different
even from the defence version.  We consider it  appropriate  to  accept  the
Judgment of the High Court, which, after  reading  the  entire  evidence  on
this point, came to the correct conclusion that the two  blows  were  caused
by Gurjit Singh and Surjit Singh, who were both armed with 'kassis' and  who
had been exhorted to kill Jagsir Singh by their parents, Gurdial  Singh  and
Sukhwinder Kaur.



20.   We also agree with the Judgment of the High Court that the  injury  on
Gurdial Singh is self-inflicted, in all likelihood.  Gurdial Singh was  said
to have gone to the Primary Health Centre, Odhan at  around  6.55  pm,  even
though the incident had taken place at around 2.15 pm. The inordinate  delay
in seeking medical attention raises many questions.  In  addition,  he  also
refused to undergo radiological examination of  the  injuries  and  did  not
tell the doctor as to how and why he  got  the  injuries.   Gurdial  Singh's
conduct appears to be wholly unnatural and it is not possible to accept  the
defence version that Gurjit Singh attacked Jagsir Singh  (deceased)  because
Jagsir attacked his father  with  a  'gandasi.'  As  observed  earlier,  the
failure to  corroborate  the  existence  of  the  'gandasi,'  has  not  been
explained.

21.   For the aforesaid reasons, the  appeal  is  dismissed.  The  order  of
conviction and sentence as recorded by the High  Court  is  upheld  and  the
order of acquittal passed by the Trial Court is set aside.



                      ....................................................J.
                                                      [JAGDISH SINGH KHEHAR]



                           ...............................................J.

                                [S.A. BOBDE]
 NEW DELHI,
 MARCH 10, 2015
ITEM NO.1A               COURT NO.4               SECTION IIB

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS


Criminal Appeal  No(s).  519/2010

GURJIT SINGH @ GORA & ANR.                         Appellant(s)

                                VERSUS

STATE OF HARYANA                                   Respondent(s)

[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A. BOBDE, JJ.]

Date : 10/03/2015 This appeal was called on for judgment today.



For Appellant(s) Dr. J. P. Dhanda,Adv.


For Respondent(s)      Mr. Kamal Mohan Gupta,AOR(Not present)



            Hon'ble Mr. Justice S.A. Bobde pronounced the  judgment  of  the
Bench comprising Hon'ble Mr. Justice Jagdish Singh Khehar and His Lordship.

            For the reasons recorded in the Reportable  judgment,  which  is
placed on the file, the appeal is dismissed.  The order  of  conviction  and
sentence as recorded by the High Court is upheld and the order of  acquittal
passed by the Trial Court is set aside.

(Parveen Kr. Chawla)                         (Renu Diwan)
    Court Master                                   Court Master

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