On October 2, 2002 two persons - Sunil and Chand - were shot dead and three persons - Pawan, Rohtas and Rakesh - got injured in the town of Jind (Haryana). One of the injured, Pawan died after three days. In connection with that incident, six persons--Jalpat Rai (A-1), Shyam Sunder (A-2),

                                                       REPORTABLE




              IN THE SUPREME COURT OF INDIA


             CRIMINAL APPELLATE JURISDICTION


             CRIMINAL APPEAL  NO. 1736 OF 2007


Jalpat Rai & Ors.                                              ...Appellants


                           Versus



State of Haryana                                             ...Respondent


                                 WITH


             CRIMINAL APPEAL  NO. 1306 OF 2006





                            JUDGEMENT


R.M. LODHA, J.




             On October 2, 2002 two persons - Sunil and Chand


-   were   shot   dead   and   three   persons   -   Pawan,   Rohtas   and


Rakesh -  got injured in the town of Jind (Haryana).  One of the


injured,   Pawan died after three days.   In connection with that


incident,   six  persons--Jalpat Rai (A-1), Shyam Sunder (A-2),


Satish Kumar (A-3), Purshotam (A-4), Harinder alias Kala (A-5)


and   Pawan   (A-6)   --   were   tried   by   the   Additional   Sessions


Judge,   Jind   for   the   offences   punishable   under   Section   148,


Section   302   read   with   Section   149,   Section   307   read   with


Section 149 and Section 323 read with Section 149 IPC. Four


of   them   were   also   charged   for   the   offence   punishable   under


Section   27   of   the     Arms   Act,   1959.   The   trial   court   vide   its


judgment   dated   November   20,   2004   convicted     A-2   under


Section 302 IPC and sentenced him to suffer life imprisonment


and imposed a fine of Rs.25000/- with default stipulation.   A-2


was   also   convicted   for   the     offence   under   Section   27   of   the


Arms Act, 1959   and sentenced to undergo imprisonment for a


term     of   one   year   with   a   fine   of   Rs.1000/-   with   default


stipulation. The trial court acquitted  A-1, A-3, A-4, A-5 and A-6


of all the charges.


2.            Against the judgment of the trial court, two criminal


appeals  and  one  criminal  revision  came  to  be  filed before the


High Court of Punjab and Haryana. The State preferred appeal


being   Criminal   Appeal   No.   95-DBA   of   2006   aggrieved   by   the


acquittal of A-1, A-3, A-4, A-5 and A-6.   The complainant party




                                                                            2


filed a criminal revision being Criminal Revision No. 578 of 2005


against the acquittal of the five accused and for enhancement


of   sentence.     A-2   preferred   criminal   appeal   being   Criminal


Appeal No. 42-DB of 2005 against his conviction.


3.            The High Court heard all the three matters together


and   by   a   common   judgment   dated   September   20,   2006;


allowed the appeal of the State and convicted A-1, A-3, A-4, A-


5 and A-6 under Section 148 and Section 302 read with Section


149 IPC.   A-5 was also convicted under Section 323 IPC.   All


these   five   accused   have   been   sentenced   to   undergo


imprisonment   for   life.   A   fine   of   Rs.   10,000/-   with   default


stipulation   was   also   imposed   on   them.   Insofar   as   A-2   is


concerned, the High Court modified his conviction from Section


302 to Section 302 read with Section 149 IPC while maintaining


the sentence awarded to him by the trial court.   In light of the


judgment   in   the   appeal   preferred   by   the   State,   the   criminal


revision preferred by the complainant party was dismissed.


4.            A-1, A-3, A-4, A-5 and A-6  are the appellants in the


two   appeals   before   us   filed   under   Section   2   of   the   Supreme


Court     (Enlargement   of   Criminal   Appellate   Jurisdiction)   Act,




                                                                        3


1970   (for   short,   `1970   Act').   A-2   filed   special   leave   petition


against his conviction which came to be dismissed by this Court


summarily.


5.            The   prosecution   case   in   regard   to   the   incident


leading to the triple murder is this:  On October 2, 2002 at about


9.00 p.m.,   Sewa Singh (PW-1) and one Subhash Gaba were


sitting in their office (Nav Bharat Transport Company) situate at


Phuara Bazar, Jind.  At that time, A-2, A-3 and A-4, all sons of


A-1, passed in front of their office and went towards Chamber


Dharamshala.     They   were   armed   with   firearms.   PW-1


suspected   their   movement   as   he   had   long   standing   truck


owners' union rivalry with A-2 and his family.  PW-1 came out of


his office and saw that A-2 was talking with someone on mobile


phone.   After   about   10/15   minutes,   A-1   came   there   on   a


motorcycle.     He,     too,   carried   firearm   with   him   and   was


accompanied by a boy.    Sensing some danger from A-1, A-2,


A-3 and A-4, PW-1 telephoned his brother Rohtas (PW-4) who


along with his nephews Chand, Sunil, Pawan, Arun and Rakesh


(PW-8)   reached   the   office   of     PW-1   in   about   10/15   minutes.


PW-1   told   his   brother   (PW-4)   that   A-1   and   his   sons   had




                                                                          4


gathered   nearby   and   might   commit   some   mischief.   On   the


advise of  PW-4, the office was closed and   PW-1, PW-4,  their


nephews   and Subhash Gaba left for their homes. Hardly had


they started that  A-2 fired one shot from behind with a licensed


pistol   which   he   was   carrying.   PW-1   and   his   nephews   ran


towards   A-2   to   catch   him   but   A-2   fired   another   shot   from   his


pistol   that   hit   Chand   on   the   left   side   of   his   chest.   A-4   fired   a


shot from the pistol he was carrying which hit Sunil on the left


side of his chest. A-3 and A-1 then started firing shots from their


guns.   A-2   and   A-4   repeated   firing   from   their   firearms.   As   a


result   of   the   shots   fired   by   A-2   and   A-4,   PW-4   and   Pawan


received   injuries.   Pawan,   Chand,   Sunil   and   PW-4   fell   on   the


ground. A-5 who was armed with sword gave the sword blow to


PW-8. All the accused persons then fled from the spot.


6.              After the firing, few persons gathered at the place of


occurrence and took the injured persons--Chand, Sunil, Pawan


and PW-4 to the General Hospital, Jind for treatment. On way


to the hospital, Chand and Sunil succumbed to the injuries and


died. Pawan and PW-4 were referred to PGI, Rohtak for further





                                                                                   5


treatment.     PW-1   had   also   informed   the   Control   Room   of   the


incident.


7.            At about 11.30 p.m., the doctor on duty at  General


Hospital,   Jind   sent   two   rukkas   (Ex.   PP   and   Ex.   PQ)   to   the


Police   Station  City,  Jind   informing   them  that   Sunil   and   Chand


were   brought   dead     while   Pawan   and   PW-4   were   brought


injured.  On receipt of the two rukkas, Haricharan (PW-20) who


was Sub-Inspector left the Police Station for General Hospital,


Jind along with two constables. At the main gate of the General


Hospital,   PW-20   met     PW-1     who     gave   his   statement   which


was reduced into writing.  Based on the statement of PW-1,  the


first information report was  registered in the midnight at 12.30


a.m.   (October   3,   2002)     under   Sections   302/307/148/149   IPC


and the Arms Act.


8.            PW-20   commenced   investigation   and   visited   the


place   of   occurrence.     The   office   of   Nav   Bharat   Transport


Company   is   adjacent   to   the   Chamber   Dharamshala   situate   in


the   busy   market   area   which   has   shops,   offices   and   hospitals.


The Chamber Dharamshala has seven shops, four on the one


side and three on the other.  At the place of occurrence, PW-20




                                                                         6


recovered   one   belcha,   one   sword,   four   pair   of   chappals,   one


Maruti   car,   one  scooter,   two  Hero   Honda  motorcycles  (one   of


which   was   without   registration   number),   one   wrist   watch   and


three   empties   of   used   .32   calibre   bullets.   PW-20   also


conducted inquest on the dead bodies of Chand and Sunil on


October 3, 2002 before they were handed over for autopsy.


9.             Dr.   Kuldeep   Singh   Rana   (PW-5),   Medical   Officer,


General Hospital, Jind  conducted the post-mortem examination


on the dead body of Sunil on October 3, 2002 at   9.00 a.m. In


the post-mortem report, he recorded as follows :


        "There   is   a   penetrating   entry   wound   0.75   cm   in

        diameter over the left side of chest, 2.5 cm below and

        slightly lateral to the left nipple. Margins are inverted,

        tattooing around the wound present in about 3-4 mm.

        surrounding the wound.   Corresponding part of   shirt

        torned.


               On   dissection   find   that   the   bullet   has   followed

        the   path   starting   with   anterior   chest   wall,   traversing

        the   left   anterior   pleura,   middle   lob   of   left   lung   which

        was lacerated, then passing through the left ventricle

        of   heart     and   coming   out   through   the   right   ventricle

        posteriori   and   bullet     found   stucked   in   the   muscles

        just lateral to sixth thoracic vertebrae of left side.


               1.5   liter   of   dark   clotted   blood   found   in   the

        mediastinal and pleural cavity."
       





                                                                                      7


In the  opinion of PW-5,  the cause of death of Sunil  was due to


shock   and   haemorrhage   because   of   firearm   injuries   to   vital


organs.     He   opined   that   the   injuries   were   ante   mortem   and


sufficient to cause death in normal course of nature.


10.           On   the   same   day   at   about   9.30   a.m.,   PW-5


conducted   post-mortem   examination   on   the   dead   body   of


Chand.   He   found   the   following   injury   on   the   dead   body   of


Chand:


        "There   is     a   penetrating   wound   0.75   cm  in   diameter

        on   the   left  mid   axillary   line  between   7/   8  inter-costal

        space. Margins are inverted tattooing in 3-4 mm. area

        surrounding the wound.


              On dissection, path traversed by the bullet is as

        lateral of left chest wall to lateral left pleural cavity and

        left   lung   which   is     highly   lacerated,   then   to   right

        pleural cavity and right lung which was lacerated, then

        bullet  found stucked in  muscle of right lateral wall of

        chest   at   level   of   7/8   inter-costal   space   or   posterior

        border of  axillary space."    




In the opinion of PW-5, the cause of death of Chand was due to


shock   and   haemorrhage   because   of   firearm   injury   to   vital


organs.


11.           Pawan   was   medically   examined   by   Dr.   Rajesh


Gandhi (PW-6) on October 2, 2002 at about 10 p.m. as soon as





                                                                                   8


he was brought to the General Hospital, Jind.     On the person


of Pawan, PW-6 found the following injury:




        "Deep penetrating wound on anterior surface of chest;

        2cm   medial   to   left   nipple   and   1   cm   below   nipple.

        Margins were inverted. Singeing is present........."
   


He advised X-ray and Surgeon's opinion.


12.           PW-6 also examined PW-4   on October 2, 2002 at


about 10.15 p.m. and found the following injury on his person:




        "Deep penetrating wound is present on the Abdomen

        in   the   centre,   3   cm   above   the   symphysis   pubis.

        Margins are inverted. Blackening is present. Size : 1 x

        .5 c.m......"




13.           PW-6 examined PW-8 on October 3, 2002 at about


3.40 p.m. and the following injury was found on his person.


        "Lacerated   wound   on   the   right   side   of   skull   6   cm

        above   ear   margin,   placed   vertically,   size   :   2   x   1   x

        muscle deep.......".




14.           On   October   5,   2002,   the   investigation   of   the   case


was entrusted to Inspector Wazir Singh (PW-23). He conducted


further investigation. PW-23 sought to  record the statements of


PW-4   and   injured   Pawan   but   both   were   not   fit   to   give





                                                                                    9


statements. Pawan succumbed to injuries on October 6, 2002


and his statement could not be recorded.


15.             The post-mortem examination on the dead body of


Pawan was conducted by Dr. R.K. Nandal (PW-9) on October


6, 2002.  At the time of post-mortem examination,  he found the


following injuries on the body of Pawan:


       "1.        A wound on front of Abdomen stitched with 16

                stitches.


       2.       An   oval   punctured   wound   of   size   1   x   .75   cm.

                Blackening  present : 5 cm lateral to mid sternum

                and 3 cm medio inferior to left nipple.


       3.       The   bullet   was   directed   downwards   and   inward

                piercing   the   structure   left   lung   diaphragm   and

                stomach and thereby lodged with anterior chest

                wall at the level of T 11 vertebra.


       4.         Two stitched wounds in the stomach.


       5.       Two   stitched   wounds   on   left   side   of   chest   and

                left iliac region for draining.


       6.     Haemo    thorax     and     Haemo     peritoneum

              present."




In his opinion, the cause of death of Pawan was firearm injury


which   had   caused   haemo   peritoneum   and   haemo   thorax


thereby leading to shock.





                                                                                  10


16.           The statement of PW-4 was recorded by PW-23 on


October 8, 2002.


17.           PW-23 arrested A-1 on October 14, 2002 while A-2


and   A-3   were   arrested   on   October   26,   2002.   Based   on   the


disclosure   statement   of   A-2,   PW-23   recovered   one   licensed


pistol   of   .32   bore   and   one   licensed   rifle     of   .22   bore.   In


pursuance   of   the   disclosure   statement   of   A-3,     one   licensed


pistol of .32 bore and one rifle of .12 bore were recovered by


PW-23.


18.           The   bullets   recovered   from   the   dead   bodies,   the


empties   of   bullets   picked   up   by   PW-20   from   the   place     of


occurrence,   the   firearms   seized   pursuant   to   disclosure


statements   and   the   clothes   of   dead   persons   were   sent   for


forensic/ballistic examination by PW-23 on November 14, 2002


to   the   Forensic   Science   Laboratory   Haryana,     Madhuban


(Karnal).


19.           On   completion   of   investigation,   the   challan   was


submitted against  A-1, A-2, A-3, A-4, A-5 and A-6 in the Court


of   Chief   Judicial   Magistrate,   Jind   who,   by   his   order   dated





                                                                           11


January   7,   2003,   committed   them     for   trial   by   the   Court   of


Sessions, Jind.


20.           The   Sessions   Judge,   Jind   framed   the   charges

against   the   six   accused   persons   (A-1,   A-2,   A-3,   A-4,   A-5   and

A-6) on April 18, 2003 as follows :




        "That   on   2.10.2002   at   about   10   p.m.,   in   the   area   of

        City   Jind,   you   all   the   accused   were   members   of   an

        unlawful   assembly,   and   did,   in   prosecution   of   the

        common   object   of   such   assembly,   and   at   that   time

        you   were   armed   with   deadly   weapons   and   thereby

        committed   an   offence   of   rioting   punishable   under-

        Section 148 of the Indian Penal Code and within the

        cognizance of this court.


        That, secondly, on the aforesaid date, time and place,

        you all the accused in prosecution of common object

        of   such   unlawful   assembly,   did   commit   murder   by

        intentionally causing the death of Chand Singh, Sunil

        Kumar   and   Pawan   Kumar,   residents   of   Subhash

        Nagar,   Jind,   and   thereby   committed   an   offence

        punishable under Section 302 IPC read with  Section

        149 IPC and within the cognizance of this court.


        That,   thirdly,   on   the   aforesaid   date,   time   and   place

        and in prosecution of common object of such unlawful

        assembly,   you   all   the   accused   caused   injuries   to

        Rohtas   with   such   intention   or   knowledge   and   under

        such   circumstances   that   if   by   that   act,   you   had

        caused   the   death   of   said   Rohtas,   you   would   have

        been   guilty   of   murder   and   thereby   committed   an

        offence punishable  under Section 307 IPC  read with

        section   149   IPC   and   within   the   cognizance   of   this

        court.


        That,   fourthly,   you   accused   Harender   alias   Kala,   in

        prosecution   of   common   object   of   your   co-accused,

        namely, Jalpat Rai, Sham Sunder, Purshotam, Satish


                                                                                    12


        Kumar   and   Pawan   Kumar,   caused   injuries   to

        Subhash   Gaba   and   Rakesh   PWs   and   thereby   you

        accused   Harender   alias   Kala   committed   an   offence

        punishable   under-Section   323   IPC   while   the

        remaining   accused,   namely,   Jalpat   Rai,   Sham

        Sunder, Purshotam, Satish Kumar and Pawan Kumar

        committed   an   offence   punishable   under   Section   323

        IPC   read   with   section   149   IPC   and   within   the

        cognizance of this court.


        That,   lastly,   you   accused   Sham   Sunder   and

        Purshotam,   on   2.10.2002,   in   the   area   of   City   Jind,

        used   your   respective   licenced   revolvers   for   unlawful

        purpose   i.e.   for   committing   the   murder   of   Chand

        Singh, Sunil and Pawan  Kumar and also for causing

        injuries   to   Rohtas   complainant   with   the   intention   to

        commit his murder while you accused Jalpat Rai and

        Satish,   on   the   aforesaid   date,   time   and   place,   used

        your   respective   licenced   guns   for   unlawful   purpose

        i.e. for committing the murder of Chand Singh,  Sunil

        and   Pawan   Kumar   and   also   for   causing   gun   shot

        injuries   to   Rohtas   complainant   with   the   intention   to

        commit   his   murder   and   thereby   you   accused   Sham

        Sunder,   Purshotam,   Jalpat   Rai   and   Satish   Kumar

        committed an offence punishable under Section 27 of

        the Indian Arms Act and within the cognizance of this

        court."      




21.           The prosecution in support of its case examined 23


witnesses   in   all   .   Three   of   these   witnesses,   PW-1,   PW-4   and


PW-8   were   tendered   as   eye-witnesses   to   the   occurrence.


Inter-alia,     Inquest   Reports,   Post-mortem   Reports,   Forensic


Science   Laboratory   Examination   Reports,   Site   Plans   [rough





                                                                                13


plan   prepared   by   IO   and   the   other   by   draftsman)     were   got


exhibited.


22.            The   statement   of   the   accused   persons   was


recorded   under   Section   313,   Cr.P.C.   The   accused   persons


denied their involvement in the crime and stated that they have


been falsely implicated.


23.            The   trial   court,   as   indicated   above,   acquitted   the


present   appellants   and   convicted   A-2   under   Section   302   IPC


and   Section   27   of   Arms   Act,   1959.   The   trial   court,   inter   alia,


held   that   the   ocular   testimony   of   PW-1,   PW-4   and   PW-8   was


not   reliable.   It   does   not   get   corroborated   from   the   medical


evidence and their version is contradictory to the report of the


ballistic expert. We intend to refer to the trial court's view about


their evidence a little later.


24.            The   opinion   of   the   High   Court   differed   with   that   of


the trial court. The High Court held that the evidence of PW-1,


PW-4 and PW-8 in totality was cogent, convincing and truthful.


25.            Mr.   Sushil   Kumar,   learned   senior   counsel


representing   A-1,   A-3,   A-4   and   A-5   vehemently   assailed   the


judgment of the High Court. He argued that the acquittal of the




                                                                              14


appellants by the trial court was based on proper appreciation


of   the   entire   evidence   on   record.   The   view   taken   by   the   trial


court was a reasonable and possible view on consideration of


the evidence in totality which the High Court ought not to have


disturbed.   He   relied   upon     few     decisions     in   this   regard,


particularly, Ghurey Lal v. State of Uttar Pradesh1 and   Mahtab


Singh and Anr. v. State of Uttar Pradesh2.


26.             Learned   senior   counsel,   while   relying   upon   the


decision   in  Mahtab   Singh2,   also   submitted   that   the   first


information   report   (FIR)   was   not   only   delayed   but   was   also   a


suspect   and   doubtful   document.   Mr.   Sushil   Kumar   submitted


that   PW-1   was   not   an   eye-witness   and     pointed   out   various


discrepancies   in   the   testimony   of   PW-1   to   buttress   his


argument that PW-1 was not present at the time of incident.


27.             As   regards   the   evidence   of   PW-4,   learned   senior


counsel   submitted   that   he   had   not   disclosed   anything   to   the


doctor   in   the   hospital.     According   to   him,   PW-4   did   not   suffer


any   injury   in   the   incident.   He   contended   that   although   PW-4


deposed that he was injured by a gunshot but he did not have a




1 (2008) 10 SCC 450

2 (2009) 13 SCC 670


                                                                             15


single pellet in his body; his clothes had no perforation. Learned


senior   counsel   submitted   that   his   statement   was   recorded   on


October 8, 2002 for the first time as, according to him, he was


unconscious   upto   that   date   but   the   medical   record   showed


otherwise.


28.             Mr. Sushil Kumar, learned senior counsel was also


critical about the deposition of PW-8. He submitted that PW-8


was   an   introduced   witness.   His   presence   is   not   stated   in   the


FIR.  PW-8 does not get himself medically examined at Jind on


the day of incident or at Rohtak but goes to a private doctor and


tells him that he suffered injuries because  he fell accidentally.


He, thus, submitted that the evidence of PW-1, PW-4 and PW-8


was not reliable and trustworthy. In support of his submission,


he cited  Balakrushna Swain  v.  State of Orissa3, Balak Ram  v.


State   of   U.P.4,   Vijaybhai   Bhanabhai   Patel  v.  Navnitbhai


Nathubhai Patel & Ors.5 and Darshan Singh v. State of Punjab


& Anr.6.  





3  (1971) 3 SCC 192

4  (1975) 3 SCC 219

5  (2004) 10 SCC 583

6  (2010) 2 SCC 333


                                                                          16


29.             Learned   senior   counsel   strenuously   urged   that   the


circumstantial   evidence   on   record   clearly   disproves   the


prosecution   case.   No   blood   was   found   on   the   spot   and   there


was absence of blood on the clothes of the person who is said


to   have   carried   the   injured.   The   ballistic   evidence   completely


rules   out   complicity   of   the   appellants.   He   relied   upon   the


decisions   of   this   Court   in   the   cases   of  Khima   Vikamshi   and


others v. State of Gujarat7,  Balwan Singh v. State of Haryana8,


Brijpal Singh  v.  State of M.P.9,  Ghurey Lal1,  Mahendra Pratap


Singh v. State of Uttar Pradesh.10 and Darshan Singh6.


30.             Learned   senior   counsel   for   the   appellants   also


submitted   that   number   of   deaths   does   not   matter   in


appreciation of evidence. According to him, the High Court was


unnecessarily  influenced   by  the  fact  that   three   murders  in   the


same   family   had   taken   place   resulting   in   erroneous


appreciation   of   the   evidence.   In   this   regard,   he   cited  State   of





7  (2003) 9 SCC 420

8  (2005) 11 SCC 245

9  (2003) 11 SCC 219

10 (2009) 11 SCC 334


                                                                             17


U.P.  v.  Moti Ram and others11, Deepak Kumar  v.  Ravi Virmani


& Anr.12 and Asif Mamu v. State of Madhya Pradesh.13


31.              It  was  also contended  by Mr.  Sushil  Kumar  that  in


the   event   of   conviction   of   the   appellants   being   set   aside,   A-2


may   also   be   granted   same   relief   although   his   SLP   has   been


dismissed. He would contend that SLP filed by A-2 was non-est


since he had a right of appeal under  Section 2 of the 1970 Act


and, therefore, the order of this Court dismissing his SLP is also


non-est.   In   support   of   his   contention,   he   referred   to   few


decisions of this Court, namely, Harbans Singh v. State of Uttar


Pradesh   and   others14,   A.R.   Antulay  v.  R.S.   Nayak   and


another15,  Raja   Ram   and   Ors.    v.  State   of   M.P.16,  Deepak


Kumar12, Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra17


and Shingara Singh v. State of Haryana & another18.


32.              Mr.   Arun   Bhardwaj,   learned   counsel   for   A-6


contended that A-6 has been falsely implicated in the incident.


He referred to the evidence of PW-1 and submitted that not a



11 (1990) 4 SCC 389

12 (2002) 2 SCC 737

13 (2008) 15 SCC 405

14  (1982) 2 SCC 101

15  (1988) 2 SCC 602

16  (1994) 2 SCC 568

17  (2003) 2 SCC 708

18  (2003) 12 SCC 758


                                                                            18


word is stated by him about the involvement of A-6. He argued


that the prosecution evidence does not establish the complicity


of   A-6   at   all   and   the   High   Court   was   in   error   in   reversing   the


judgment of acquittal as regards him.


33.             Ms. June Chaudhari, learned senior counsel for the


State   opposed   the   submissions   of   the   learned   senior   counsel


and   the   learned   counsel   for   the   appellants   with   equal


vehemence.   She   stoutly   defended   the   judgment   of   the   High


Court   and   submitted   that   from   the   entire   evidence   let   in   by


prosecution   and   considered   by   the   High   Court,   it   is   apparent


that the view taken by the High Court is the only possible view


and the High Court was fully justified in reversing the judgment


of   the   trial   court.   She   submitted   that   Section   149   IPC   was


integral   part   of   the   charge   and   the   prosecution   evidence


establishes  the  unlawful assembly of  which   A-1,  A-3,  A-4  and


A-5 were members along with A-2 and the three murders were


committed   in   pursuance   of   its   common   object.   She   submitted


that all the members of the unlawful assembly were armed with


deadly   weapons   and   their   conviction   by   the   High   Court   does


not suffer from any legal or factual infirmity.




                                                                                 19


34.            That Chand, Sunil and Pawan died  homicidal death


is neither in doubt nor in issue. The question that arises  for our


consideration   is   whether   the   High   Court   was   justified   in


interfering   with   the   order   of   acquittal   passed   in   favour   of   the


appellants by the trial court.  Obviously, if the complicity of the


appellants   (A-1,   A-3,   A-4,   A-5   and   A-6)   with   the   crime   is


established beyond any reasonable doubt, the view of the High


Court would not call for any interference.


35.            The two courts -   High Court and the trial court --


have divergence of opinion with regard to the evidence of eye


witnesses. The trial court rejected the evidence of PW-1, PW-4


and PW-8 for the following reasons :


        "It   is   evident   from   a   careful   perusal   of   the   evidence

        led by the prosecution that there is chequered history

        of   unending   hostility   between   the   complainant   party

        and the accused in connection with the affairs of the

        Truck Union. They are all transporters by profession.

        It   seems   that   there   was   a   brawl   between   accused

        Shyam   Sunder   and   some   members   of   the

        complainant   party   on   that   fateful   evening.   The

        medical evidence reveals that there was flame effect,

        blackening   and   tattooing   at   the   entry   wounds   on   all

        the three bodies meaning thereby that the shots had

        been fired from point-blank range. The recovery of the

        articles   like   Belcha   and   Sword   at   the   spot   goes   to

        show   that   accused   Shyam   Sunder   may   have   found

        himself   in  imminent  danger   and   he   resorted   to   firing

        from   his   licensed   pistol   thereby   claiming   the   lives   of

        the three youngmen. Accused Shyam Sunder has not


                                                                                    20


pleaded   the   right   of   private   defence   of   person   and

property   but   he   has   pleaded   false   implication   at   the

hands   of   the   sworn   enemies   of   the   family.   The

circumstances   of   the   case   also   do   not   warrant   the

extension   of   such   concession   to   him.   He   had   not

suffered   any   serious   injury   in   the   incident   and   the

claim   for   use   of   force   in   defence   of   person   and

property has to be completely excluded in this case.

P.W.   Rohtas   did   not   suffer   a   firearm   injury   in   the

incident. Similarly, P.W. Rakesh had allegedly offered

himself   for   medico   legal   examination   to   a   private

medical practitioner and he had told him that he had

suffered   the   injuries   in   an   accidental   fall.   It   is   also

evident that complainant Sewa Singh may not have at

all witnessed  the occurrence  but he  offered to lodge

the   First   Information   Report   after   due   deliberations

and consultations. A story was  concocted with  intent

to   implicate   all   the   male   members   of   the   family   of

accused Jalpat Rai. A last minute efforts was made to

rope in his other two  sons namely,  Vinod and Sushil

by   moving   an   application   under   Section   319   of   the

Criminal   Procedure   Code   which   was   eventually

withdrawn   by   the   learned   Public   Prosecutor   on

prevalence   of  better  counsel  upon  him.  All  the  three

alleged   eye   witnesses   have   rendered   highly

contradictory   versions   and   their   evidence   does   not

receive corroboration from the medical evidence and

the   ballistic   expert's   report.   It   shall   be   absolutely

absurd to say that multiple firearms were used in the

incident. All the three deaths were caused by the use

of   .32   bore   licensed   pistol   (Exp.   22)   owned   by

accused Shyam Sunder and this court has very valid

reasons   to   believe   that   he   had   pressed   the   trigger

each time. Let it be made absolutely clear here that it

is   not   the   case   of   the   prosecution   that   the   licensed

firearm   of   accused   Shyam   Sunder   had   been   taken

away   from   him   by   any   other   accused   or   that   it   had

been used for gunning down the three victims. It is the

case of the prosecution that accused Shyam Sunder

had triggered off the incident by firing a shot from his

pistol   even   as   the   complainant   and   his   companions

were walking away from him. It is also the case of the

prosecution that the complainant and his companions


                                                                              21


              turned   about   and   rushed   to   nab   accused   Shyam

              Sunder but he fired a shot at Chand which hit him in

              the   left   flank   and   killed   him.   The   same   weapon   was

              used   for   causing   firearm   injuries   to   deceased   Sunil

              and deceased Pawan. Therefore, there should be no

              manner   of   doubt   about   the   direct   involvement   of

              accused   Shyam   Sunder   in   the   commission   of   the

              alleged crime."
         


36.                 On   the   other   hand,   the   High   Court   was   not


convinced   with   the   reasoning   of   the   trial   court   and   found   the


evidence   of   PW-1,   PW-4   and   PW-8   cogent,   convincing   and


truthful. The High Court with regard to their evidence observed


thus :


              ".......The   learned   trial   Court   has   misread   and

              misinterpreted the evidence of the eye-witnesses and

              the doctors as already discussed above. Occurrence

              in this case had taken place on 2.10.2002 at 10 p.m.

              Statement   of   Sewa   Singh   PW-1   was   recorded   on

              3.10.2002   at   12.30   a.m.   and   F.I.R.   Ex.   PV   was

              recorded   on   3.10.2002   at   12.50   a.m.   The   special

              report   reached   the   safe   hands   of   C.J.M.,   Jind   on

              3.10.2002 at 2.30 a.m. The name of the accused, the

              weapon of offence, the injuries inflicted, the name of

              the witnesses are given in detail in the F.I.R. This in

              fact,   goes   a   long   way   in   proving   the   case   of   the

              prosecution.   The   complainant   party   did   not   get   any

              time to consult and confabulate with each other as to

              who to falsely implicate. The F.I.R. is prompt and gets

              corroboration from the other evidence on record."





37.                 PW-1   and   PW-4   are   real   brothers.     PW-8   and   the


deceased are nephews of PW-1 and PW-4.     The presence of


                                                                                       22


PW-1, PW-4 and PW-8  at the time of incident, does not appear


to us to be doubtful.    The trial court has doubted the presence


of   PW-1   at   the   place   of   occurrence   but   we     find   it   difficult   to


accept   the   reasoning   of   the   trial     court   in   this   regard.     Being


transporter,   the   presence   of   PW-1   in   his   office   at   about   9.00


p.m.   was   not   unnatural.     It   was   his   good   luck   that   he   did   not


receive any injury in the incident.  We do not think that absence


of any injury on his person renders his presence doubtful.  The


presence of PW-4 and PW-8 at the time of incident also cannot


be   doubted.   Both   of   them   suffered   injuries.   Both,   PW-4   and


PW-8,   were   medically   examined   by   PW-6.       PW-4   was


examined   by   PW-6   immediately   after   the   incident   at   about


10.15 p.m. on October 2, 2002. PW-8 was examined by PW-6


on the next day, i.e. October 3, 2002 in the afternoon.  The trial


court     doubted   that   the   injury   suffered   by  PW-4   was   from   the


firearm   but     the   evidence   of     Dr.   Paryesh   Gupta   (PW-19)


leaves no manner of doubt that PW-4 received  firearm injury in


the incident. PW-19 deposed that PW-4 was operated upon for


a   firearm   injury   in   the   abdomen   on   October   3,   2002   in   the


emergency O.T. and the firearm was used from a close range.




                                                                                 23


However, the presence of PW-1, PW-4 and PW-8 at the time of


incident   does   not   guarantee   truthfulness.     The   question   is


whether   their   testimony   is   trustworthy   and     reliable   insofar   as


complicity of the appellants with the crime is concerned or they


have tried to involve the innocent along with the guilty.


38.           Broadly,   the   evidence   of   PW-1,   PW-4   and


PW-8  has been indicated by us while narrating the prosecution


case   and   by   reason   therefor,   we   need   not   reiterate   the   same


except   the   salient   features   emerging   therefrom.   PW-1   had   a


long standing rivalry with A-1 in connection with Truck Owners'


Union. Their rivalry has led to many criminal cases being   filed


against   each   other.   PW-1   was   prosecuted   earlier   for   causing


injuries to A-1 and others. On September 12, 2002, i.e., about


20   days   prior   to   the   date   of   present   incident,   an   FIR   was


registered   against   PW-1   and   his   partner   under   Sections   323,


506,  148  and 454  IPC  at  Police  Station  City,   Jind  for   causing


injuries   to   one   Shambir.   In   that   incident,   A-2   was   an   eye-


witness.   Two   days   later,     on   September   14,   2002,   PW-1


reported to the police against A-2, A-3, A-4 and A-5 by way of


counter   case   but   police   did   not   take   any   action.   A   complaint




                                                                          24


was then lodged by PW-1 party against A-2, A-3, A-4 and A-5


in the Court of Additional Chief Judicial Magistrate, Jind.


39.            PW-1,   PW-4   and   PW-8   are   not   only   much


interested   in   the   prosecution   case   but   they   are   inimically


disposed towards the accused party as well.  The deep rooted


enmity and serious disputes between   PW-1 on the   one hand


and A-1 and his sons on the other  and their unflinching interest


in the prosecution case necessitate that the evidence of PW-1,


PW-4 and PW-8  is considered with care  and caution.  To find


out   intrinsic   worth   of   these   witnesses,   it   is   appropriate   to   test


their trustworthiness and credibility in light of the  collateral and


surrounding   circumstances   as   well   as   the   probabilities   and   in


conjunction with all other facts brought out on record.     There


cannot   be   a     rule   of   universal   application   that   if     the   eye-


witnesses   to   the   incident   are   interested   in   prosecution   case


and/or   are   disposed     inimically   towards   the   accused   persons,


there should be corroboration to their evidence.   The evidence


of   eye-witnesses,   irrespective   of   their   interestedness,   kinship,


standing or enmity with   the accused, if found credible and of


such   a   caliber   as   to   be   regarded   as   wholly   reliable   could   be




                                                                               25


sufficient   and   enough   to   bring   home   the   guilt   of   the   accused.


But it is  reality in life, albeit  unfortunate and sad, that  human


failing   tends   to   exaggerate,   over-implicate   and  distort   the   true


version against the person/s with whom there is rivalry, hostility


and   enmity.     Cases   are   not   unknown       where   entire   family   is


roped in due to enmity and simmering feelings although one or


only few members of that family may be involved in the crime.


In   the   circumstances   of   the   present   case,   to   obviate     any


chance   of   false   implication   due   to   enmity   of   the   complainant


party  with  the  accused  party  and  the  interestedness   of  PW-1,


PW-4 and PW-8 in the prosecution case, it is prudent to look for


corroboration   of   their   evidence   by     medical/ballistic   evidence


and   seek   adequate   assurance     from   the   collateral   and


surrounding   circumstances   before   acting   on   their   testimony.


The   lack   of   corroboration   from   medical   and   ballistic   evidence


and   the   circumstances   brought   out   on   record   may   ultimately


persuade   that   in   fact   their   evidence   cannot   be   safely   acted


upon.


40.           Besides   PW-1,   PW-4   and   PW-8,   who   are   closely


related to   the three deceased,   no other independent witness




                                                                           26


has been examined although the   incident occurred in   a busy


market area.     The place of occurrence was visited by PW-20


in   the   same   night     after   the   incident.   He   found     three   two-


wheelers     one   bearing   no.   HR--31--A/5071,   the   second


bearing no. RJ--13--M/7744 and the third without number lying


there.     One   Maruti   car   bearing   no.   HR--20--D/8840   with


broken   glasses   was   also   parked   there.   The   owners   of   these


vehicles have not been examined. At the place of occurrence,


one HMT Quartz wrist watch with black strap, one belcha and


four pair of chappals were also found. There is no explanation


at all by the prosecution with regard to these articles.   Nothing


has come on record whether four pair of chappals belonged to


the   accused   party   or   the   complainant   party   or   some   other


persons.   Whether HMT Quartz wrist  watch that was found at


site  was worn by one of the accused or one of the members of


the   complainant   party   or   somebody   else   is   not   known.   Then,


the   mystery   remains   about     belcha   that   was     found   at   site.


These   circumstances   instead   of   lending   any   corroboration   to


the evidence of those three key witnesses, rather suggest that


they have not come out with the true and complete disclosure




                                                                           27


of the incident.


41.             If   the   evidence   of   PW-1,   PW-4   and   PW-8   is   to   be


believed   then   there   was   indiscriminate   firing   by   the   accused


party at the complainant party.   PW-1 has said so in so many


words. Four members of the accused  party - A-1, A-2, A-3 and


A-4 - were armed with firearms.  According to these witnesses,


all   of   them   fired   shots   from   the   firearms   they   were   carrying.


The first shot was fired by A-2 from the pistol he was carrying


(although   in   the   FIR   it   is   recorded     that   A-2   was   armed   with


revolver but this inconsistency is not very material).   That shot


did   not hit anyone.     A-2 then again fired shot that hit Chand.


A-4   fired   a   shot   with     pistol   that   hit   Sunil.   A-3   and   A-1   fired


shots from their guns and A-2 and A-4 also fired shots from the


pistols   causing injuries to Pawan and PW-4. However, at the


place of occurrence,   only three empties were found.   Had the


firing taken place in the manner deposed by PW-1, PW-4 and


PW-8, obviously there should have been  more  empties at the


place of occurrence.   It is conjectural to assume, as has been


done by High Court, that the Investigating Officer was not able


to   recover   more   than   three   empties   because     the   occurrence




                                                                                 28


took place in `chowk' and by the time he reached at the site, a


lot of traffic must have passed there.  Moreover, at the scene of


occurrence, there were no marks of indiscriminate firing.


42.           The medical evidence is clear and specific that   the


three   deceased--Chand,   Sunil   and   Pawan   received   one


firearm injury each.  The blackening and singeing injuries leave


no   manner   of   doubt   that   shots   were   fired   at   the   deceased


persons  from a very close range.   As a matter of fact, medical


evidence   is   categorical   to   that   effect.   However,   the   ocular


account given by PW-1, PW-4 and PW-8 does not indicate that.





43.           The   ballistic   report   records   unambiguously   and


unequivocally   that   the   crime   bullets   (BC/1   to   BC/3)   and   the


cartridge cases (C/1 to C/3)   were fired by the pistol stated to


have   been   recovered   from     A-2   and   no   other   firearm.       The


cartridge  cases and the crime  bullets  have  positively  matched


to   7.65   mm   pistol   no.   109033-2002.     This   pistol   is   licensed


pistol   of     A-2   and   was   recovered   from   him   in   dismantled


condition   with   parts   separated   in   three   pieces.     The   Forensic


Science   Laboratory   marked   the   above   pistol   `W/2'   for   the




                                                                        29


identification purposes.   Based on the examination carried out


in the Laboratory, the result of analysis is recorded as under:


         "7.65 mm cartridge  cases and bullets marked C/1 to

         C/3   and   BC/1   to   BC/3   respectively   had   been   fired

         from   7.65   mm   pistol   marked   W/2   and   not   from   any

         other   firearm   even   of   the   same   make   and   calibre

         because   every   firearm   has   got   its   own   individual

         characteristic marks".


 The ballistic evidence is clearly in conflict with the evidence of


PW-1, PW-4 and PW-8  and  shatters their evidence completely


vis-`-vis  the   appellants.         The   testimony  of   PW-1,   PW-4  and


PW-8 about the role of appellants, thus,  is not corroborated by


medical and ballistic evidence.   Their evidence also   does not


get   support   from   the   collateral   circumstances   that   have   come


on record.


44.            The   deposition   of   PW-1,   PW-4   and   PW-8     suffers


from   significant   improvements   and   omissions   as   well.     PW-1


deposed   that   he     did   not   tell   the   police   that   Satish   had   fired


from his .12 bore licensed gun, Jalpat had fired from .22 rifle of


Shyam   Sunder   and   Purshotam   had   fired   from   .32   licensed


pistol of Satish but when he was confronted with portion A to A


of     his   statement   (Ex.   DA)     before   police,   it   was   found   that   it


was     so   recorded.       He     testified   that   he   had   stated   in   his



                                                                                30


statement   to   the   police   that   A-5   had   caused   injuries   to   PW-8


but   when   confronted   with   that   statement,   it   was   found   that   it


was not so stated.   PW-4 deposed that he had told the   police


that   A-4     had   fired   at   Sunil   from   his   revolver   but   when


confronted  with  that  statement,  it  transpired  that it  was not so


stated.       He also deposed that he had told the police that A-5


had given a sword blow to  PW-8   on  his  temple but when  he


was confronted with that statement, it was found that it was not


so stated. PW-8 deposed that  he  had stated before the police


that the shots fired by A-3 and   A-1 from their guns did not hit


anyone but when confronted with that   statement, it transpired


that he has not so stated.


45.           As regards arrival of A-5 at the place of occurrence,


the evidence of PW-1 and PW-8 is not consistent.   PW-1 has


deposed   that   A-5   was   also   present   with   the   other   accused


when   the   incident   started;     he   was   armed     with   sword   and


caused   injuries   with   the   sword   to   PW-8.   PW-8,   on   the   other


hand,   has   stated   that   A-5   descended   on   the   scene   of


occurrence after firing had started.





                                                                           31


46.           We   have   indicated   broadly   some   of   the   more


serious infirmities in the evidence of the eye-witnesses (PW-1,


PW-4 and PW-8) in order to indicate that their evidence at any


rate is not wholly true and  it is unsafe to act on their  evidence


insofar   as   complicity   of   A-1,   A-3,   A-4,   A-5   and   A-6   is


concerned.  Brushing  the impact of these infirmities aside , the


High   Court   erroneously   treated   the   evidence   of   PW-1,   PW-4


and   PW-8   cogent,   convincing   and   truthful.     All   in   all,   the


evidence   of   PW-1,   PW-4   and   PW-8   lacks   in   credibility   and   is


not of sterling worth  to prove the involvement of A-1, A-3, A-4,


A-5     and A-6 in the crime beyond any reasonable doubt.     As


regards   A-6,     as   a   matter   of   fact,   it   was     conceded   by   the


learned senior counsel for the State that there was no reliable


evidence to prove his involvement in the crime.  The appellants,


in our opinion, are entitled to benefit of doubt.


47.           Incidentally,   Vinod   and   Sushil   (sons   of   A-1)   were


also shown as assailants in the FIR.   In the investigation, their


presence was not established; they were not   charge-sheeted.


PW-1, PW-4 and PW-8, however, in their deposition before the


Court   made   an   attempt   to   implicate   them.     Based   on   their




                                                                            32


deposition,   the   public   prosecutor   made   an   application   under


Section 319 of Cr.P.C.   for summoning those two sons of A-1


but   that   application   was   eventually   withdrawn.     This   by   itself


has not much bearing in the case.   What it shows is that there


has     been     attempt   by   PW-1,   PW-4   and   PW-8   right   from   the


inception   to   rope   in   A-1   and   all   his   sons   in   the   incident


irrespective of whether  all of them were involved in the crime or


not.  


48.           We   are   not   oblivious   of   the   fact   that   A-2   was


convicted   by the trial court for the offence under Section 302


IPC but the High Court has altered his conviction from Section


302   to     Section   302   IPC   read   with   Section   149   IPC   and   his


special   leave   petition   (SLP)     against   that   judgment   has   been


dismissed summarily.     The  dismissal  of  SLP   summarily  does


not   mean   affirmance       of   the   judgment   of   the   High   Court   on


merits.     It   has   been   repeatedly   held   by   this   Court   that   mere


dismissal of SLP does not amount to acceptance of correctness


of the High Court decision.  The order of this Court in A-2's SLP


is not an impediment   in allowing these two appeals once it is





                                                                           33


held   that   prosecution   has   failed   to  prove  the   complicity  of   the


appellants beyond any reasonable doubt.


49.            We   are   not   impressed   by   the   argument   of


Mr.   Sushil   Kumar,   learned   senior   counsel,   that   the   SLP


preferred   by   A-2   was   non-est   since   he   had   a   right   of   appeal


under   Section   2   of   the   1970   Act     and,   therefore,   the   order   of


this Court dismissing the SLP preferred by A-2 is   also a non-


est.         The   judgments   cited   by   learned   Senior   Counsel   in


support   of   his   submission   that   in   the   event   of   appellants'


conviction being set aside, A-2 is also entitled to the same relief


although   his   SLP   has   been   dismissed   have   no   application   to


the facts of the present case.  The case against A-2 stands on


a different footing.   The ballistic evidence is conclusive against


him   and   leaves   no   manner   of   doubt   about   his   involvement   in


the crime.   We need not say any further in this regard as SLP


preferred   by   A-2   against   his   conviction   has   already   been


dismissed.


50.            In view of the  above discussion, these two appeals


are allowed and the judgment of the  High Court as regards the


present   appellants   is   set   aside.   The   judgment   of   acquittal




                                                                              34


passed   in   their   favour   by   the   trial   court   is   restored.   The


appellants     Jalpat   Rai   and   Pawan   are   already   on   bail   and


accordingly     their   bail   bonds   are   discharged.     The   other


appellants, Satish Kumar, Purshotam and Harinder alias   Kala


be released forthwith, if not required in any other case.


                                                                                             


                                         


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

                                                                           (Aftab   Alam)





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

                                                                          (R.M. Lodha)

NEW DELHI,

JULY  6, 2011.





                                                                                        35

This appeal by special leave arises from a suit for damages filed by the plaintiffs-respondents, the widow and the minor daughter of one Surinder Singh, claiming a sum of rupees three lakhs as damages from the defendants-appellants for causing the death of Surinder Singh by their wrongful act. 2. In an occurrence that took place on July 1, 1991, Surinder Singh died as a result of gun shot injuries. An F.I.R (no.166) was lodged by his father Balbir Singh, under sections 302/307/ 34 of the Penal Code and section 2 25/27 of the Arms Act in which the two appellants, Suba Singh and Shingara Singh, father and son respectively, were named as accused.

                                                                     REPORTABLE


                     IN THE SUPREME COURT OF INDIA

                      CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 5197 of 2003




Suba Singh & Anr.                                                    ...Appellants


                                         Versus


Davinder Kaur & Anr.                                                 ..Respondents




                                   J U D G M E N T




AFTAB ALAM,J.





1.     This appeal by special leave arises from a suit for damages filed by


the   plaintiffs-respondents,   the   widow   and   the   minor   daughter   of   one


Surinder Singh, claiming a sum of rupees three lakhs as damages from the


defendants-appellants   for   causing   the   death   of   Surinder   Singh   by   their


wrongful act.


2.     In an occurrence that took place on July 1, 1991, Surinder Singh died


as a result of gun shot injuries. An F.I.R (no.166) was lodged by his father


Balbir   Singh,   under   sections   302/307/   34   of   the   Penal   Code   and   section


                                                 2




25/27 of the Arms Act in which the two appellants, Suba Singh and Shingara


Singh, father and son respectively, were named as accused.


3.      On   November   16,   1991,   respondent   no.1   filed   a   suit   on   behalf   of


herself and on behalf of her minor daughter, who was at that time about 4-5


years old, against the defendants-appellants claiming damages for the death


of her husband and the father of the young child. In the plaint, it was alleged


that Suba Singh and his son Shingara Singh had committed  the murder of


Surinder Singh. Shingara Singh came to the place of occurrence armed with


the   licensed   gun   of   his   father   and   urged   by   him,   he   fired   a   shot   killing


Surinder Singh on the spot. At the time of death, the age of Surinder Singh


was   about   25   years.   He   was   a   peasant   and   a   motor   vehicle   driver   by


vocation.   As   a   professional   driver,   he   was   in   private   service   of   certain


persons named in the plaint. He also used to help his father in agricultural


operations   and  his  income from all  the  sources  was  about  Rs.16,000/-   per


annum. It was stated that after the death of Surinder Singh, the plaintiffs did


not have any source of income to maintain themselves. Hence, the claim for


compensation by way of damages of rupees three lakhs from the defendants.


4.      The   defendants   contested   the   suit   questioning   its   maintainability.


They denied the allegations made in the plaint and stated that they were in


no way responsible for causing the death of Surinder Singh. It was alleged


                                              3




that Surinder Singh claimed the common wall between their houses and at


the   time   of   the   occurrence   he   was   throwing   brickbats   at   the   defendants


causing injuries to them. In that situation Suba Singh fired a shot and a stray


pellet hit Surinder Singh who was sitting on the wall, resulting in his death.


5.       During   the   pendency   of   the   suit,   the   defendants   were   tried   by   the


Additional Sessions Judge, Sirsa, in Sessions Trial No.46 of 1991, charged


variously of offences under sections 302, 307, 302/34, 307/34 IPC and under


section 25/27 of the Arms Act. The learned Additional Sessions Judge, by


his judgment and order dated March 6, 1992, acquitted Shingara Singh of all


the charges leveled against him but found Suba Singh guilty of the offence


under section 304 Part-I, holding that he had exceeded his right of private


defence.   Accordingly,   he   sentenced   Suba   Singh   to   rigorous   imprisonment


for   10   years   and   a   fine   of   Rs.50,000/-   and   in   default,   to   rigorous


imprisonment  for a further period of 2 years. The matter  was taken to the


High Court in appeals preferred both by the State and by Suba Singh besides


a   revision   preferred   by   the   informant   Balbir   Singh,   the   father   of   the


deceased.   The   High   Court   by   a   common   judgment   and   order   allowed   the


appeal filed by the State and held Shingara Singh guilty of the offence under


section  302 and 307 of the Penal Code. Suba Singh was found guilty  and


convicted under sections 302/34, 307/34 of the Penal Code. Shingara Singh


                                               4




was also found guilty of the offence under section 27 of the Arms Act. Both,


Suba Singh and Shingara Singh were sentenced to life imprisonment and to


pay fines with default clauses.


6.       While   the   suit   was   pending   before   the   trial   court,   the   widow   of


Surinder Singh plaintiff no.1 got married to his younger brother in the year


1998 and from him, she has two children.


7.     On   November   27,   1999,   the   learned   Civil   Judge,   Sirsa   (Haryana)


decreed   the   suit   and   awarded   compensation   of   rupees   three   lakhs   to   the


plaintiffs-respondents along with interest @ 12% per annum from the date of


the   filing   of   the   suit.   The   appellants   filed   an   appeal   (Civil   Appeal


No.191/1999)   before   the   District   Judge,   The   District   Judge   partly   allowed


the   appeal   and   by   judgment   dated   March   7,   2002   reduced   the   amount   of


compensation   from   rupees   three   lakhs   to   rupees   two   lakhs,   thirty   two


thousand   seven   hundred,   leaving   the   rate   of   interest   unchanged.   The


appellants  took the matter in second appeal before the High Court but the


same was dismissed by the impugned judgment and order, dated October 3,


2002, holding that it did not raise any substantial question of law. The matter


is now brought before this Court by grant of special leave.


8.     To   complete   the   facts   it   may   be   stated   that   shortly   after   leave   was


granted   in   the   present   appeal,   the   appellants'   criminal   appeals   against   the


                                               5




judgment   and   order   passed   by   the   Punjab   and   Haryana   High   Court


(registered as Criminal Appeal Nos.682-683 of 1996 with Criminal Appeal


Nos.1345-1347 of 2003) came to be heard by this Court.   By the judgment


and   order   dated   November   4,   2003,   the   appeal   of   Shingara   Singh   was


allowed and he was acquitted of all the charges and the conviction of Suba


Singh was converted from one under section 302 to section 304 Part I of the


Penal Code. In other words, this Court set aside the judgment of the High


Court   and   restored   the   judgment   passed   by   the   trial   court,   though   giving


Suba Singh a reduced sentence of 5 years rigorous imprisonment and a fine


of Rs.10,000/- and in default of payment of fine to further imprisonment for


a period of 1 year.


9.      Now, coming back to the present appeal, the judgments of the High


Court and the courts below were assailed by the counsel for the appellants


on   the   plea   of   double   jeopardy.   It   was   submitted   that   the   appellants   were


being   punished   twice   over   for   the   same   offence.   Learned   counsel   also


referred to section 357 of the Code of Criminal Procedure and submitted that


there being a specific provision there for payment of compensation, a suit for


damages would not be maintainable.


10.     The   rule   against   double   jeopardy   is   contained   in   sub-article   (2)   of


Article 20 of the Constitution of India which mandates that "no person shall


                                              6




be prosecuted and punished for the same offence more than once". Now, it


is elementary that an action for civil damages is not prosecution and a decree


of damages is not a punishment. The rule of double jeopardy, therefore, has


no application to this case.


11.    The submission based on section 357 of the Cr.P.C. is equally without


substance. Section 357 of the Code reads as under:


       "357. Order to pay compensation.- (1) When a Court imposes a

       sentence of fine or a sentence (including a sentence of death) of

       which   fine   forms   a   part,   the   Court   may,   when   passing

       judgment, order the whole or any part of the fine recovered to

       be applied-

       

       (a)   in   defraying   the   expenses   properly   incurred   in   the

       prosecution;

       

       (b) in the payment to any person of compensation for any loss

       or injury caused by the offence,  when compensation is, in the

       opinion, of the Court,  recoverable by such person in a Civil

       Court;

       

       (c)   when   any   person   is   convicted   of   any   offence   for   having

       caused   the   death   of   another   person   or   of   having   abetted   the

       commission   of   such   an   offence,  in   paying   compensation   to

       the   persons   who   are,   under   the   Fatal   Accidents   Act,   1855

       (13   of   1855),   entitled   to   recover   damages   from   the   person

       sentenced for the loss resulting to them from such death;

       

       (d) when any person is convicted of any offence which includes

       theft,   criminal   misappropriation,   criminal   breach   of   trust,   or

       cheating,   or   of   having   dishonestly   received   or   retained,   or   of

       having   voluntarily   assisted   in   disposing   of,   stolen   property

       knowing or having reason to believe the same to be stolen, in

       compensating any  bona fide  purchaser of such property for the


                                                     7




         loss of the same if such property is restored to the possession of

         the person entitled thereto.

         

         (2) If the fine is imposed in a case which is subject to appeal, no

         such   payment   shall   be   made   before   the   period   allowed   for

         presenting the appeal has elapsed, or if an appeal be presented,

         before the decision of the appeal.

         

         (3) When a Court imposes a sentence, of which fine does not

         form a part, the Court may, when passing judgment, order the

         accused person to pay, by way of compensation such amount as

         may   be   specified   in   the   order   to   the   person   who   has   suffered

         any  loss  or  injury  by  reason   of the  act   for  which  the  accused

         person has been so sentenced.

         

         (4)   An   order   under   this   section   may   also   be   made   by   an

         Appellate Court or by the High Court or Court of Session when

         exercising its powers of revision.

         

         (5) At the time of awarding compensation in any subsequent

         civil  suit  relating   to  the   same  matter,  the   Court  shall   take

         into   account   any   sum   paid   or   recovered   as   compensation

         under this section."

                                                                                 (emphasis supplied)


12.      The contention made on behalf of the appellants is fully answered by


clauses (b) and (c) of sub-section (1) and sub-section (5) of section 357 of


the Code. In those  provisions there is a clear and explicit  recognition of a


civil suit at the instance of the dependents of a person killed, against his/her


killers. In sub-section (1)(c) of section 357 there is clear indication that apart


from the punishment of fine, the person convicted of any offence of having


caused the death of another person or of having abetted the commission of


such an offence may also be liable to face a civil action for damages under


                                                 8




the Fatal Accidents Act, 1855 in a suit for damages and sub-section (5) of


section 357 of the Code makes it all the more clear by stipulating that at the


time   of   awarding   compensation   in   a   subsequent   civil   suit  relating   to   the


same matter the court shall take into account any sum paid or recovered as


compensation under that section.


13.     In the end, counsel for the appellants, rather feebly submitted that the


widow of Surinder Singh was not entitled to any compensation because she


had remarried during the pendency of the suit. We find no substance in this


submission either. It may be noted that the first appellate court has taken the


sum   of   Rs.12,400/-   as   the   annual   input   by   the   deceased   towards   the


maintenance of his wife and the minor child. The remarriage of plaintiff no.1


took   place   after   seven   years   of   filing   of   the   suit.   The   amount   of


compensation   reckoned   for   7   years   at   the   rate   of   Rs.12,400/-   per   annum


would be Rs.86,800/-. The balance being Rs.1,45,900/-, would be a modest


and reasonable amount as compensation for defendant no.2, the minor child


of the deceased till she attained majority and got married. We, therefore, see


no scope for any interference with the amount of compensation awarded by


the first appellate court.


14.     It   is   indeed   true   that   the   courts   below   have   awarded   interest   at   the


rather   higher   rate   of   12%   per   annum.     In   the   facts   of   the   case,   we   are


                                             9




satisfied that simple interest at the rate of 6% per annum from the date of the


filing   of   the   suit   till   payment   would   meet   the   ends   of   justice.   We,


accordingly, modify and reduce the rate of interest to 6% per annum.


15.    Having, thus, considered and disposed of all the contentions raised on


behalf of the appellants, we would like to advert to another issue that is a


cause of no little concern to us.


16.    We are constrained to observe that a suit for damages for murder of a


person, like the present one, is filed under the Fatal Accidents Act, 1855. As


the year of its enactment shows the Act dates back to the period when the


greater part of the country was under the control of the East India Company


with   the   last   Mughal   "Emperor",   Bahadur   Shah   Zafar   as   the   ineffective,


though, titular monarch on the throne of Delhi.


17.    The Act is based on the Fatal Accidents Act, 1846 and according to


the short title given to it by the Indian Short Titles Act, 1897, it is "An Act


to  provide   compensation   to  families   for  loss  occasioned   by   the  death  of  a


person caused by actionable wrong". Its Preamble reads as follows:


       "Whereas   no   action   or   suit   is   now   maintainable   in   any   Court

       against  a person who, by his  wrongful act, neglect  or default,

       may  have  caused  the death of another person,  and it is often-

       times   right   and   expedient   that   the   wrong-doer   in   such   case

       should   be   answerable   in   damages   for   the   injury   so   caused   by

       him"


                                             10




18.    It originally consisted of three sections, but, the original section 1 was


renumbered as section 1A by the Part B States (Laws) Act (3 of 1951), S. 3


and   Schedule,   with   effect   from   April   1,   1951.   Section   1A   of   the   Act


provides as follows:


       "1A. Suit for compensation  to the family  of a person  for loss

       occasioned to it by his death by actionable wrong.-- Whenever

       the death of a person shall be caused by wrongful act, neglect or

       default, and the act, neglect or default is such as would (if death

       had not ensued) have entitled the party injured to maintain  an

       action   and   recover   damages   in   respect   thereof,   the   party   who

       would have been liable if death had not ensued, shall be liable

       to an action or suit for damages,  notwithstanding the death of

       the   person   injured,   and   although   the   death   shall   have   been

       caused under such circumstances as amount in law to felony or

       other crime.

       

               Every such action or suit shall be for the benefit of the

       wife,   husband,   parent   and   child,   if   any,   of   the   person   whose

       death shall have been so caused, and shall be brought by and in

       the name of the executor, administrator, or representative of the

       person deceased; and in every such action the Court may give

       such damages as it may think proportioned to the loss resulting

       from such death to the parties  respectively,  for whom and for

       whose benefit such action shall be brought; and the amount so

       recovered, after deducting all costs and expenses, including the

       costs   not   recovered   from   the   defendant,   shall   be   divided

       amongst the before mentioned parties, or any of them, in such

       shares as the Court by its judgment or decree shall direct."


19.    Later on the operation of the Act was extended to different parts of the


country and as on date it extends to the whole of India except the State of


Jammu and Kashmir.


                                               11




20.     It is a matter of grave concern that such sensitive matters like payment


of   compensation   and   damages   for   death   resulting   from   a   wrongful   or


negligent   act   are   governed   by   a   law   which   is   more   than   one   and   a   half


centuries old. Twenty one years ago a Constitution Bench of this Court in


Charan Lal Sahu v. Union of India, (1990) 1 SCC 613, a case arising from


the   Bhopal   Gas   Tragedy,   had   taken   note   of   this   antiquated   law   and   in


paragraph 168 made the following observations:




        "168. While it may be a matter for scientists and technicians to

        find solutions to avoid such large scale disasters, the law must

        provide an effective and speedy remedy to the victims of such

        torts. The Fatal Accidents Act, on account of its limited and

        restrictive   application,   is   hardly   suited   to   meet   such   a

        challenge.   We   are,   therefore,   of   the   opinion   that   the   old

        antiquated   Act   should   be   drastically   amended   or   fresh

        legislation   should   be   enacted   which   should,   inter   alia,

        contain   appropriate   provisions   in   regard   to   the   following

        matters:


        (i) The  payment of a fixed  minimum  compensation  on a "no-

        fault liability" basis (as under the Motor Vehicles Act), pending

        final adjudication of the claims by a prescribed forum;


        (ii) The creation of a special forum with specific power to grant

        interim relief in appropriate cases;


        (iii) The evolution of a procedure to be followed by such forum

        which   will   be   conducive   to   the   expeditious   determination   of

        claims and avoid the high degree of formalism that attaches to

        proceedings in regular courts; and


                                                      12




          (iv)  A  provision  requiring   industries  and  concerns   engaged  in

          hazardous   activities   to   take   out   compulsory   insurance   against

          third party risks."


                                                                      (emphasis supplied)


21.       It is unfortunate that the observations of the Supreme Court have so


far   gone   completely   unheeded.   We   hope   and   trust   that   the   Union


Government   would   at   least   now   take   note   of   the   urgent   need   to   bring   a


contemporaneous and comprehensive legislation on the subject and proceed


to act in the matter without any further delay.


22.       Let a copy of this judgment be brought to the notice of the Attorney


General   for   India.   A   copy   of   the   judgment   may   also   be   sent   to   the   Law


Commission of India.


23.       In the result, the appeal is dismissed, subject to the modification in the


rate of interest. There will be no order as to costs.


                                                                           
                                                       

           

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

                                                                    (AFTAB ALAM)





                                                                            ........................

......J.

                                                                    (R.M. LODHA)


New Delhi;

July 6, 2011.