As per case facts, Krishan, who was initially found innocent during investigation, was later summoned and convicted in a case arising from a 2004 incident where Dharam Pal died and ...
CRA-D-848-DB-2004 (O&M)
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CRR-608-2005 (O&M)
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
109
CRA-D-848-DB-2004 (O&M)
CRA-D-880-DB-2004 (O&M) and
CRR-608-2005 (O&M)
Reserved on: 17.07.2026.
Pronounced on: 20.08.2026.
Uploaded on: 20.08.2026.
Whether only operative part of the
judgment is pronounced or the full
judgment is pronounced.
Operative part/full judgment
(1)
CRA-D-848-DB-2004 (O&M)
Krishan
...Appellant(s)
VERSUS
State of Haryana
...Respondent(s)
CRA-D-848-DB-2004 (O&M)
CRA-D-880-DB-2004 (O&M) and
CRR-608-2005 (O&M)
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(2)
CRA-D-880-DB-2004 (O&M)
Rajbir Singh and others
...Appellant(s)
VERSUS
State of Haryana
...Respondent(s)
(3)
CRR-608-2005 (O&M)
Bhoop Singh
...Petitioner(s)
VERSUS
Rajbir Singh and others
...Respondent(s)
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
HON’BLE MS. JUSTICE SUKHVINDER KAUR
Present :- Mr. Akashdeep Singh, Advocate
for the appellant(s) in CRA-D-848-DB-2004.
Mr. R.S. Cheema, Senior Advocate with
Ms. Sumanjeet Kaur, Advocate;
Mr. Satish Sharma, Advocate;
Mr. Prince Bharol, Advocate;
for the appellant(s) No. 1, 2, 4 and 5
in CRA-D-880-DB-2004.
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Mr. Ankur Goyat, Advocate
for the petitioner in CRR-608-2005 and
for complainant in CRA-D-848-DB-2004 and
CRA-D-880-DB-2004.
Mr. Nayandeep Rana, Amicus Curiae
for appellant No.3 in CRA-D-880-DB-2004 and
for respondent No.5 in CRR-608-2005.
Mr. Dhruv Dayal, Addl. AG, Haryana.
VINOD S. BHARDWAJ, J. (ORAL)
1. CRA-D-848-DB-2004 titled as ‘Krishan Vs. State of Haryana’;
CRA-D-880-DB-2004 titled as ‘Rajbir Singh and others Vs. State of Haryana’
as well as CRR-608-2005 titled as ‘Bhoop Singh Vs. Rajbir Singh and others’,
all arise from the judgment of conviction dated 11.10.2004 and order of
sentence of even date in Sessions Case No.22 dated 09.04.2004, in case FIR
bearing No.11 dated 11.01.2004, under Section(s) 148, 149, 302 and 323 of
the Indian Penal Code, 1860, (for short ‘IPC’), registered at Police Station
Meham, rendered by the Additional Sessions Judge, Rohtak. Hence, they are
being decided by this common judgment.
2. CRA-D-848-DB-2004 has been filed by Krishan, who was found
innocent during investigation but was subsequently summoned under Section
319 Cr.P.C. and convicted. CRA-D-880-DB-2004 has been filed by Rajbir
Singh and other convicted accused assailing their conviction and sentence.
CRR-608-2005 has been filed by the complainant - Bhoop Singh against the
acquittal of two accused viz. Ajmer Singh son of Balwan Singh and Suresh
son of Gugan, against whom allegations of having inflicted injuries upon the
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deceased, Dharam Pal, were levelled.
FACTS
3. Briefly, the case of the prosecution is that on the intervening night
of 10/11.01.2004, a telephonic message was received from Police Post,
PGIMS, Rohtak, informing that Bhoop Singh (PW-4), Ashok (PW-5) and
Mangal Singh (PW-10) had been admitted to the hospital with injuries and
that the dead body of their father, Dharam Pal, had also been brought to the
hospital. On receipt of the said information, ASI Maha Singh (PW-12),
Incharge, Police Post Lakhan Majra reached the Hospital and collected
medical ruqa (Ex.PD) forwarded by the attending Doctor, at 12.30 a.m. and
received at Police Post, PGIMS Rohtak at 12.50 a.m. He also obtained copies
of the medico-legal reports (Ex. PA to Ex. PC) pertaining to the injuries
sustained by the aforesaid injured persons. Thereafter, ASI Maha Singh met
Bhoop Singh (PW-4) in the emergency ward and recorded his statement (Ex.
PE). Bhoop Singh stated that he has four brothers, namely, Ashok, Mangal,
Jasbir and Ranbir. Jasbir Singh was running a grocery shop in the village. On
10.01.2004, at about 6:00 p.m., Jasbir Singh was returning home from his
shop carrying grocery articles when he encountered Surinder son of Balwan.
An altercation ensued between them but they were separated by Ashok (PW-
5).
4. The complainant alleged that harbouring resentment over the
aforesaid incident, at about 10:30 p.m. on the same day, Surinder and the other
accused, sharing a common object, formed an unlawful assembly and came in
front of the complainant's house. They started hurling filthy abuses and
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challenged the complainant and his family members to come out if they had
the courage to face them. Hearing the noise, Dharam Pal, the seventy-year-
old father of the complainant, came out of the house and requested the accused
not to use abusive language and to behave. An electric bulb installed outside
the house illuminated the place of occurrence. On hearing the noise, Bhoop
Singh, along with his brothers Ashok and Mangal, also came out of the house.
They saw Rajbir, Ajmer, Krishan and Surinder, all sons of Balwan, armed
with a mussal (pestle), jaili, jaili and lathi, respectively. Suresh alias Mala son
of Gugan was armed with a jaili; Karan son of Bajje and Dilbagh alias Bedar
son of Pale Ram were carrying a lathi and a jaili respectively; while Krishan
son of Randhir was armed with a gandasi. It was further alleged that all the
accused were exhorting one another to take revenge and to eliminate the
complainant's family. Consequent to the aforesaid exhortation, Rajbir
inflicted a mussal blow on the head of Dharam Pal. Ajmer dealt a jaili blow
on the left arm of Dharam Pal, while Suresh alias Mala inflicted a jaili blow
on the fingers of his left hand. Krishan caused a jaili blow on the left hand of
Bhoop Singh whereas Rajbir struck him with a mussal near his left elbow.
When Ashok and Mangal intervened to rescue their father and brother, they
too were assaulted and sustained injuries at the hands of the accused. On alarm
being raised, Jugti son of Matu Ram and Vinod son of Chander, reached at
the spot and intervened. The accused fled from the spot. Dharam Pal, having
sustained grievous injuries, fell on the ground. Thereafter, the injured were
transported to PGIMS, Rohtak where Dharam Pal was declared brought dead.
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5. The medico-legal examination of the complainant as well as the
other injured was carried out. The prosecution alleged that Dharam Pal
succumbed to the injuries inflicted upon him by the accused during the
occurrence. An FIR (Ex. PF) was accordingly registered on 11.01.2004 at 9.10
A.M. for offense under Sections 148, 149, 302, 323 of the Indian Penal Code,
1860 at Police Station Meham. After the registration of the FIR, ASI Maha
Singh reached the mortuary at PGIMS Rohtak and conducted the inquest
proceedings and prepared the inquest report (Ex. PM/3). Thereafter, the dead
body of Dharam Pal was sent for post-mortem examination, which was
conducted by Dr. Giri Raj (PW-11). In the post-mortem report (Ex. PN/1), the
attending Doctor noted the following injuries on the person of the deceased: -
“1. A lacerated wound 6 x l cm on posterior part of left
parietal region, horizontally placed, 7cm left to midline
and 10 cm from left pinna, underlying skull bone was seen.
Ecchymosis was present. On further dissection,
ecchymosis was also seen on left temporal region, fracture
of left temporal bone was present and it was extending
backwards up to posterior part of left parietal bone, upto
junction of occipital bone. Underlying brain haemorrhage
present, brain haemorrhage also present at the opposite
side.
2. Abrased contusion 3x2cm. Present on the upper part of
right forehead, underlying ecchymosis present.
3. Abrasion 3x2cm. On left face below eye, with ecchymosis
4. Abrasion 3x0.5cm. On right mid shin, with ecchymosis.
5. Abrasion 1x1cm. On anterior aspect of left knee with
ecchymosis.”
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6. In the opinion of the Doctor, the cause of death was injuries to
the vital organ i.e. the brain, which were sufficient in the ordinary course of
nature to cause death. The injuries were further opined to be ante-mortem in
nature. After the post-mortem examination, the Doctor handed over to the
Police a sealed parcel containing clothes (Ex. P13 to Ex. P15) of the deceased,
which was taken into possession by the Police vide recovery memo (Ex. PR)
attested by HC Satbir Singh.
7. Dr. Asha Sehrawat, PW-1, had medico-legally examined the
injured Bhoop, Ashok and Mangal at about 11.35 p.m. on 10.01.2004 and
noted the following two injuries on the person of Bhoop (PW-4):
“i) There was tenderness and swelling on his left forearm.
Advised X-ray and Ortho Surgeon opinion
ii) There was abrasion of 0.5cm on dorsal aspect of left
palm, at the base of little finger.
Injury no.1 was kept under observation and injury no.2
was declared simple in nature Both the injuries were caused by
blunt weapon.”
8. In MLR (Ex.PB), Doctor noted the following injuries on the
person of Ashok (PW-5):-
“i) There was abrasion of 0.5cm on dorsal aspect of middle
finger with fresh bleeding. X-ray was advised
ii) There was lacerated wound of 1x0.5cm on dorsal aspect
of little finger X-ray was advised.
iii) Tenderness was present on left hand, with swelling X-ray
and Ortho Surgeon opinion were advised.
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9. In MLR (Ex. PC), Doctor noted the following injuries on the
person of Mangal (PW-10):
“i) Lacerated wound of size 1x0.5cm linear on forehead left
side with fresh bleeding on the wound. Surgeon opinion was
advised,
ii) Tenderness and swelling was present on left forearm with
restricted movements. X-ray left fore-arm was advised.
iii) Tenderness on palpation of left leg. X-ray was advised.
All the injuries were caused by blunt weapon and were kept
under observation.”
10. ASI Maha Singh (PW-12) also inspected the place of occurrence.
He got the scene of crime photographed by the official photographer Surinder
Singh (PW-9), prepared the rough site plan (Ex. PQ) and also collected blood-
stained earth from the place of occurrence. The blood-stained earth was sealed
into a parcel and taken into possession vide recovery memo (Ex. PH), attested
by Ashok (PW-5) and Mangal Singh (PW-10). Further investigation was
taken over by Inspector (SHO) Inder Singh (PW-13).
11. On 16.01.2004, accused Surinder, Krishan, Karan and Dilbagh
were produced before the Investigating Officer Inspector Inder Singh (PW-
13), by one Gugan Singh, whereupon they were arrested. Following their
arrest, Surinder produced a lathi (Ex. P16), Krishan produced a jaili (Ex. P17),
Karan produced a lathi (Ex. P18) and Dilbagh produced a jaili (Ex. P19). The
aforesaid weapons were taken into police possession vide recovery memo (Ex.
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PS), after preparation of their respective sketches (Ex. PS/1 to Ex. PS/4). The
recovery memo was attested by Jasbir and ASI Maha Singh (PW-12).
12. On the following day i.e. 17.01.2004, accused-appellant/ Ajmer,
Rajbir and Suresh were also produced by said Gugan Singh and they were
also formally arrested. Pursuant to their respective disclosure statements (Ex.
PT, Ex. PU and Ex. PV), Ajmer got recovered a jaili (Ex. P20), Rajbir a
mussal (Ex. P21) and Suresh a jaili (Ex. P22) from their respective residences.
The aforesaid recoveries were effected vide recovery memos Ex. PT/1, Ex.
PU/1 and Ex. PV/1, respectively. The Investigating Officer also prepared
site plans of the respective places of recovery, marked as Ex. PT/2, Ex. PU/2
and Ex. PV/2, along with rough sketches of the recovered weapons, marked
as Ex. PT/3, Ex. PU/3 and Ex. PV/3. All the aforesaid recoveries were
attested by Wazir Singh son of Shri Mauji Ram (who was not examined
during trial) and ASI Om Parkash (PW-14). Thereafter, the sealed parcels
containing the recovered weapons were deposited with MHC Ram Bhagat
(PW-6).
13. The recovered weapons of offence, the clothes of the deceased
seized during the investigation and the blood-stained earth lifted from the
place of occurrence were thereafter forwarded to the Forensic Science
Laboratory, Madhuban, through Constable Sukhbir (PW-7) for forensic
examination. As per the report of the Serologist, no blood was detected on the
jaili (Ex. P20) recovered at the instance of accused Ajmer. Human blood,
however, was detected on the three articles of clothing belonging to the
deceased. Insofar as the remaining exhibits were concerned, the report records
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that the origin of the blood stains could not be determined as the biological
material had disintegrated.
14. After completion of investigation, the Police submitted its final
report against all the nominated accused except Krishan son of Randhir, who
was found innocent.
15. Finding that the offences alleged were exclusively triable by the
Court of Sessions, the Illaqa Magistrate committed the case for trial in
accordance with law. Charges were initially framed against all the accused,
except Krishan son of Randhir. After examination-in-chief of Ashok (PW-
5), one of the injured witnesses, the prosecution moved an application under
Section 319 of the Code of Criminal Procedure, 1973, seeking summoning
of Krishan son of Randhir, as an additional accused. The said application
was allowed by the trial Court vide order dated 07.05.2004 and Krishan was
summoned to face trial along with the other accused. Thereafter, charges
under Sections 323, 302 and 148, each read with Section 149 of the Indian
Penal Code, 1860, were framed against all the accused, including the
summoned additional accused, Krishan son of Randhir to which they pleaded
not guilty and claimed trial.
16. To prove the charges, prosecution examined the following
witnesses: -
S. No. Name Description
PW-1 Dr. Asha Sehrawat Medical Witness
PW-2 ASI Bhup Singh Police Witness
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PW-3 Constable Sumit
Kumar
Official Draftsman
PW-4 Bhup Singh. Injured Complainant
PW-5 Ashok Injured Witness
PW-6 ASI Ram Bhagat Police Witness
PW-7 HC Satbir Singh Police Witness
PW-8 Constable Karam
Singh
Police Witness
PW-9 Surinder Singh Police Photographer
PW-
10
Mangal Singh Injured Witness
PW-
11
Dr. Giri Raj Medical Expert (Post
mortem)
PW-
12
ASI Maha Singh Investigating Officer
PW-
13
Inspector SHO Inder
Singh
Investigating Officer
PW-
14
ASI Om Parkash Police Witness
Thereafter, the prosecution gave up Jugti, Rambir, Vinod, Silak
Ram and HC Satbir Singh as unnecessary witnesses, whereupon the
prosecution evidence was closed.
17. Upon conclusion of the prosecution evidence, the statements of
all the accused were recorded under Section 313 of the Code of Criminal
Procedure, 1973. The incriminating circumstances appearing against them in
the prosecution evidence were put to them, which they denied, while asserting
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their innocence and alleging false implication.
18. Accused Rajbir, in addition to denying the prosecution case, set
up a specific plea of alibi and stated that at the relevant time he was serving
as a Security Guard in the Ministry of Home Affairs, New Delhi and on the
date of the occurrence, he remained on duty from 1:00 p.m. to 7:00 p.m. at
Lok Nayak Bhawan, New Delhi and had thereafter returned to his
Government-allotted accommodation at Mandir Marg, New Delhi. He further
stated that Constable Naseeb Singh (DW-3), who was posted in the same
department, was residing with him in the said quarter. It was his case that he
reached the quarter at about 9:00 p.m., had his dinner at around 10:00 p.m.,
retired for the night and reported for duty on the following day. He thus
asserted that he was not present at the place of occurrence and had been falsely
implicated in the present case.
19. Accused Surinder, in his statement under Section 313 Cr.P.C. set
up a defence to the effect that on 10.01.2004 at about 7:00 p.m., near Bari
Chopal, he found Bhoop Singh in an intoxicated condition accompanied by
his brother Mangal Singh. He stated to have taunted them and advised Mangal
Singh to take Bhoop Singh back home which offended Mangal Singh, who
then called his brother Ashok who was armed with a lathi. He alleged that
Ashok inflicted a lathi blow on his head, Jasbir dealt a lathi blow on his left
elbow and Mangal Singh caused a lathi blow on his left knee. Surinder further
stated that upon his raising an alarm, Karan Singh son of Bajje Singh and
Dilbagh son of Pale Ram reached the spot and rescued him. It was his case
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that any injuries caused by him to Dharam Pal or the other members of the
complainant party were inflicted in the exercise of his right of private defence.
He further asserted that he had promptly reported the incident at Police Post
Lakhan Majra, whereupon a Daily Diary Report (Ex. DC) was recorded and
his medico-legal examination was conducted. According to Surinder, after the
death of Dharam Pal, the complainant party, in connivance with the police,
fabricated a false version of the occurrence and falsely implicated all the
accused persons. He further asserted that Rajbir was not present at the place
of occurrence and was, at the relevant time, at his place of posting in New
Delhi.
20. Accused Krishan son of Randhir, denied the prosecution
allegations in entirety and pleaded false implication. He stated that during
investigation, he had been found innocent and consequently was not sent up
for trial. However, he was subsequently summoned to face trial without any
justifiable basis.
21. The remaining accused also denied the prosecution case and
asserted that it was Surinder who had been assaulted by the complainant party.
They alleged that despite the injuries sustained by Surinder, no action was
taken against the members of the complainant side. It was further their case
that they had been falsely implicated in the present case and that the recoveries
of weapons at their instance had been planted by the investigating agency.
They also claimed that they had been illegally detained at the police station
much prior to the date shown by the prosecution as the date of their formal
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arrest.
22. In support of their defence, the accused examined five witnesses,
namely, Suresh Kumar (DW-1), Laxman Manjhi, Commandant of Platoon
No. 17 (DW-2), Constable Naseeb Singh (DW-3), Om Parkash, Sub-
Inspector, Food and Supplies Department (DW-4), and Dr. Sharanjit Singh
(DW-5).
23. On consideration of the evidence as well as the respective
arguments of the respective parties, the trial Court vide its judgment dated
11.10.2004 concluded that the prosecution had succeeded in establishing its
case beyond reasonable doubt against all the accused except Ajmer, son of
Balwan Singh, and Suresh alias Mala son of Gugan. Consequently, while the
remaining accused were convicted for the offences for which they had been
charged, Ajmer and Suresh alias Mala were acquitted of all the charges.
Aggrieved by the judgment of conviction and the order of sentence, Krishan
has preferred CRA-D-848-DB-2004, whereas Rajbir Singh and the other
convicted accused have instituted CRA-D-880-DB-2004. The complainant,
Bhoop Singh, being dissatisfied with the acquittal of Ajmer and Suresh alias
Mala, has filed CRR-608-2005 challenging the said acquittal.
ARGUMENTS BY THE APPELLANT(S) IN CRA-D-848-DB-2004 AND
CRA-D-880-DB-2004
24. Learned Senior Counsel for the appellant(s) contends that the
trial Court committed an error in appreciating the facts and circumstances of
the present case and the evidence adduced before it by the respective parties.
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It is submitted that the conclusions drawn by the trial Court are based on
conjectures, surmises and preponderance of probabilities. He contends that
the obligation cast upon the prosecution is to establish its case beyond
reasonable doubt, however, the trial Court recorded the conviction on the basis
of assumption, rather than on an objective evaluation of the evidence on
record. It is contended that the impugned judgment is, therefore, contrary to
the settled principles of criminal jurisprudence and is liable to be set aside.
25. Learned Senior Counsel has primarily raised the argument that
the entire case of the prosecution rests upon the allegation that the fatal injury
to the deceased, Dharam Pal, was inflicted by Rajbir by using a mussal (pestle)
on the head. It is submitted that accused-appellant/Rajbir was undisputedly
serving as a security guard in the Secretariat Security Force under the Ministry
of Home Affairs and at the relevant time, he was on duty at Lok Nayak
Bhawan, Delhi. The duty roster of the concerned date was proved on record
by appellant-accused/Rajbir and in support of the plea of alibi, his Supervisor
as well as Commandant stepped into the witness box and deposed that Rajbir
was on Sentry duty at Lok Nayak Bhawan, Delhi from 1.00 p.m. to 7.00 p.m
on the date of occurrence. It is further contended that after completing his duty
at 7:00 p.m., Rajbir returned to his Government-allotted residential quarter at
Mandir Marg, New Delhi, where he resided with Constable Naseeb Singh and
after taking dinner at about 9.30 P.M, he had gone to sleep and reported for
duty on the following day. It is contended that the trial Court specifically
admitted the plea of alibi to the extent of Rajbir's presence at his place of duty
till 7:00 p.m., however, the trial Court committed a manifest error in failing
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to examine whether the prosecution version regarding Rajbir's presence at the
place of occurrence at about 10:30 p.m. was either probable or physically
possible. In this regard, it is submitted that as per the testimony of DW-3 the
distance between Delhi and village Kharanti, the place of occurrence, is
approximately 120 km. Counsel submits that having regard to the prevailing
traffic conditions in Delhi and the congested route required to be traversed,
the journey would ordinarily consume more than 3 ½ hours thus, rendering
the prosecution version inherently improbable.
26. It is further argued that the prosecution has also failed to establish
or satisfactorily explain the following: -
i.
As to what was the mode and manner by which appellant-
accused/Rajbir had been informed about the scuffle that took
place in their village thus prompting him to leave Delhi
immediately and to come to his village Kharanti;
ii.
There is neither any evidence on record nor any
explanation as to the mode of transport used by Rajbir for
travelling from Delhi to reach the place of occurrence; and
iii.
It remains undisputed that Rajbir reported for duty on the
day immediately succeeding the incident and his absence from
duty was recorded for the first time only on 13.01.2004. Since
Rajbir was on duty on 10.01.2004, the prosecution has offered no
explanation as to how he reached back to Delhi after having
participated in alleged incident that took place around
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10:30/11:00 P.M.
It is submitted that in view of above unanswered issues, presence
of Rajbir at the place of occurrence is doubtful and inherently improbable.
27. Learned Senior Counsel contends that attribution of the fatal
blow to appellant Rajbir is actuated by malice and has been a deliberated
attempt to implicate the earning person in the family, employed in
Government and who would have the means to effectively defend himself and
support the litigation on behalf of the other accused. He contends that having
accepted the defence evidence and alibi establishing Rajbir's presence on
official duty at Lok Nayak Bhawan, New Delhi, until 7:00 p.m. on the date
of the occurrence, the trial Court gravely erred in proceeding on mere
conjectures and in presuming that he travelled back and forth from New Delhi
to the place of occurrence during the night and participated in the assault.
28. Counsel submits that the prosecution has deliberately suppressed
and distorted the true genesis of the occurrence and the actual sequence of
events to carry out deliberations and to attribute injuries to each of them. It is
submitted that the injury attribution contained in the FIR (Ex. PF) co-relates
with the inquest proceedings and as noticed by the Investigating Officer at the
time of preparing the inquest report. It is contended that the exuberance of the
prosecution in attributing specific injuries to each accused herein is
corroborated from detailed specific attribution with specific roles assigned to
each accused, notwithstanding that such injuries were actually not present on
the deceased as per the post-mortem report. Counsel thus submits that the
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ocular understanding of the Investigating Officer Maha Singh, at the time of
preparation of the inquest report, has translated into a tailored attribution of
injuries by the prosecution witnesses.
29. He submits that three injuries were attributed by PW-4/Bhoop on
the person of the deceased/Dharam Pal, of which the fatal blow with the
mussal/pestle has been attributed to Rajbir, while the other two injuries have
been attributed to Ajmer and Suresh. He draws the attention of this Court to
the statement of the complainant as well as the inquest report Ex. PM/3 and
juxtaposes the injuries recorded therein with the injuries as recorded in the
post-mortem report of the deceased and contends that non corroboration of
the injuries mentioned in the inquest report from the post-mortem report
renders the prosecution version regarding the attribution of injuries doubtful.
It is further argued that, with a view to falsely implicate the accused, the
Investigating Officer not only arrested Ajmer and Suresh, the two accused to
whom the aforesaid injuries had been attributed, but also effected recoveries
of jailies, allegedly used in causing those injuries, at their respective
disclosure.
30. He contends that even otherwise, the injuries found on the injured
witnesses were mostly superficial in nature and were incapable of being
caused by the weapons recovered from accused. He further points out that the
post-mortem report of the deceased reveals that Injury No. 1 comprised a
lacerated wound measuring 6 cm × 1 cm on the posterior aspect of the left
parietal region, placed horizontally, 7 cm to the left of the midline and 10 cm
above the left pinna, whereas the remaining injuries were merely contusions
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and abrasions (ecchymoses). It is further pointed out that the attending
Doctor, who conducted the post - mortem examination, specifically
acknowledged that injuries Nos. 2 to 5 could have been suffered by the
deceased on account of a fall after receipt of injury No.1 if he had fallen face
downwards. It is contended that since none of the aforesaid injuries could
reasonably be caused by a jaili, as alleged by the prosecution, it clearly
demonstrates that the prosecution has indulged in over-implication and false
attribution of injuries to the accused. It was in such circumstances that the
benefit has been extended to Ajmer and Suresh and they were acquitted of the
charges framed against them.
31. He further argues that undisputedly an incident/scuffle had taken
place between accused/Surinder son of Balwan and Jasbir Singh. The scuffle
escalated resulting in Surinder exercising his right of private defence and
inflicting the injury which ultimately proved fatal to Dharam Pal. It is
submitted that the defence version was never fairly verified or investigated
into. Rather, the Investigating Officer made a deliberate attempt to suppress
the defence version despite that DDR No. 17 having already been recorded at
Police Post Lakhan Majra at about 2:05 a.m. on 11.01.2004 wherein Surinder
specifically reported of the scuffle that had taken place at about 7:00 p.m. and
submitted that injuries had been caused by him to members of the
complainant party, including Dharam Pal. It is further contended that
notwithstanding that the prosecution acknowledged that an altercation had
earlier taken place between Surinder and Jasbir Singh, yet, Jasbir Singh, who
was the principal participant in the incident and the most material witness to
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explain the genesis of the occurrence and the circumstances leading to the
subsequent confrontation, was withheld and was not examined during trial.
32. He further submits that when the Investigating Officer, ASI
Maha Singh, appeared as PW-12, he initially denied not only his presence at
the police station but also the recording of DDR No. 17 at the instance of
Surinder. However, upon being confronted with DDR No. 17 as well as the
Roznamcha entries, which reflected his presence at the police station at the
relevant time, he was constrained to admit both his presence as well as the
factum of recording of the said DDR. He further contends that immediately
after the recording of DDR No. 17 at about 2:05 a.m. on 11.01.2004, Surinder
was taken for medico-legal examination, which was conducted at 3:30 a.m.
on the same day. Counsel argues that in this backdrop, the case of the
prosecution becomes suspect, since the prosecution itself alleges that the
occurrence took place at about 10:30 p.m. on 10.01.2004 and that the injured
were thereafter shifted to PGIMS, Rohtak. The medico-legal examination of
the injured witnesses commenced at about 11:45 p.m., following which the
attending doctor forwarded the medical ruqa at 12:30 a.m., which was
received at the Police Post, PGIMS, Rohtak, at 12:50 a.m. However, it was
pointed out that the inquest report records the receipt of information by the
police only at about 6:00 a.m. on 11.01.2004. It is submitted that the
prosecution has failed to furnish any satisfactory explanation for the delay in
setting the criminal law into motion, especially when the concerned Police
Post Lakhan Majra was situated at a distance of merely about 2½ kilometres
from the place of occurrence.
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33. He further submits that even though medico-legal examination of
PW-4/Bhoop, PW-5/Ashok and PW-10/Mangal had been conducted and the
attending doctor had also forwarded the medical ruqa, however, the said ruqa
makes no reference of the deceased, Dharam Pal. The post-mortem report
rather records that Dharam Pal had been brought dead to PGIMS, Rohtak, at
about 12:30 a.m. Such omission renders the case of prosecution suspect. It is
further argued that in his statement (Ex. PE), PW-4 Bhoop Singh stated that
upon reaching PGIMS, Rohtak, and after undergoing medico-legal
examination, he and his brothers went to the residence of their relatives at
Rohtak and stayed there overnight and they returned to the hospital only on
the following morning, when they informed the police about the occurrence
that had taken place during the previous night. Learned Senior Counsel argues
that the conduct is unnatural and it is inconceivable that the sons of a person,
who had succumbed to homicidal injuries, would choose to spend the night
at a relative's residence instead of immediately reporting the matter to the
police and pursuing the investigation.
34. He contends that the prosecution subsequently attempted to
improve its version during trial by asserting that after the medical ruqa had
been sent, the complainant party had been informed that the police would
arrive at the hospital to record their statements, hence, they waited there.
According to the revised version, when no police official arrived, they went
to Police Post Lakhan Majra, where they were informed that the police had
already left for PGIMS, Rohtak. They then returned to the hospital, where
their statement was ultimately recorded. Learned Senior counsel contended
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that the aforesaid explanation is but an afterthought devised by the
investigating agency to cover up the delay in recording the statement of the
complainant.
35. It is further submitted that the trial Court condoned the delay of
nearly 9½ hours in reporting the incident to the Police by recording that since
the occurrence had taken place on a winter night, the police officials did not
consider it necessary to proceed immediately to PGIMS, Rohtak, for
recording the statements as no significant development was expected to occur
during the intervening night. He contends that such a conclusion is misplaced.
The prosecution has even failed to establish the time at which the VT/ruqa
was forwarded from the Police Post, PGIMS Rohtak to the Police Post,
Lakhan Majra. He contends that the prosecution case itself is that the police
received information through a telephonic message only at about 6:00 a.m.
on 11.01.2004. It is submitted that the explanation offered and the conclusion
so drawn by the trial Court fail to inspire confidence since the Police was
demonstrably active throughout the night and the accused/Surinder was got
medico-legally examined at 3:00 A.M. There was thus no occasion for them
not to have immediately proceeded to PGIMS, Rohtak, to record the
statements of the complainant party and commence the investigation without
delay, if any such matter would have been reported.
36. Counsel further contends that the case of the prosecution heavily
relies upon the testimonies of the three injured eye-witnesses, namely, PW-4
Bhoop Singh, PW-5 Ashok and PW-10 Mangal Singh. He submits that a
careful scrutiny of the medico-legal evidence demonstrates that the injuries
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sustained by these witnesses are largely in the nature of abrasions and
tenderness. They do not support the prosecution's version regarding the
injuries to have been caused by the weapons wielded by the accused. Inviting
the attention of the Court to the medico-legal report of PW-4 Bhoop Singh,
learned senior counsel submitted that only two injuries were found on his
person. Injury No. 1, described as tenderness and swelling over the left
forearm without any measurable dimensions, was opined by Dr. Asha
Sehrawat (PW-1) to be simple in nature. It was pointed out that this injury
had been attributed by the prosecution to Ajmer, who has since been acquitted
by the trial court. Injury No. 2 was described as an abrasion measuring 0.5
cm on the dorsal aspect of the left palm, which the prosecution attributed to
Krishan son of Balwan, allegedly caused by a jaili. He contends that, as per
the opinion of the Doctor, the aforesaid abrasion was merely superficial in
nature and could not reasonably have been caused by a weapon such as a jaili.
Learned senior counsel, thus, argues that the injuries found on the person of
PW-4 are more consistent with those ordinarily sustained during a scuffle,
grappling or a fall, rather than with an assault by the deadly weapons
attributed to the accused by the prosecution.
37. Learned Senior Counsel further submitted that the medico-legal
evidence relating to PW-5 Ashok also belies the prosecution version. It was
pointed out that Ashok was found to have sustained four injuries. Injury No.
1, described as an abrasion measuring 1 × 0.05 cm on the dorsal aspect of the
right elbow, was attributed by the prosecution to Surinder, who was alleged
to have inflicted the same with a lathi. Injury No. 2, an abrasion measuring
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0.5 cm on the dorsal aspect of the middle finger, and Injury No. 3, a lacerated
wound measuring 1 × 0.5 cm on the dorsal aspect of the little finger, were
attributed to Krishan son of Randhir, allegedly caused with a gandasi. It was
contended that the medical opinion of Dr. Asha Sehrawat (PW-1) was to the
effect that Injury Nos. 1 to 3 could have been sustained as a result of a fall on
a hard surface. Learned Senior Counsel argued that said opinion demolishes
the prosecution case of the injuries being inflicted by way of a lathi and a
gandasi. As regards Injury No. 4, described as tenderness and swelling on the
left hand, it was submitted that the prosecution attributed the same to Karan
Singh, allegedly caused with a lathi. However, the injury was not assigned
any measurable dimensions nor was any opinion elicited from the doctor to
establish that such an injury could have been caused by the alleged weapon.
The same having not been put to the Doctor, the prosecution has failed to
discharge its burden.
38. Adverting to the injuries suffered by PW-10/Mangal, learned
Senior Counsel submitted that he was found to have suffered three injuries.
Injury No. 1 was a lacerated wound measuring 1 × 0.5 cm on the left side of
the forehead with fresh bleeding, whereas Injury Nos. 2 and 3 were described
as tenderness and swelling on the left forearm and tenderness on palpation
over the left leg, respectively. It was pointed out that Injury Nos. 2 and 3 were
attributed by the prosecution to Dilbagh Singh, allegedly inflicted with a jaili,
while Injury No. 1 was attributed to Krishan, allegedly armed with a jaili. He
submits that according to the medical opinion, Injury Nos. 2 and 3 could have
been sustained by a fall on a hard surface. It was further argued that the nature
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of Injury No. 1, being a lacerated wound, is itself inconsistent with the
prosecution allegation that it was caused by a jaili as it is a pronged
implement.
39. Learned Senior Counsel contends that since the injuries sustained
by the complainant party cannot be correlated to the weapons allegedly
recovered at the instance of the appellants (notwithstanding that the recovery
has not been proved by the prosecution), the prosecution version that the
injuries were actually caused in the manner as suggested or alleged becomes
wholly unreliable and the version as given by the appellants herein deserves
to be taken into consideration.
40. It is vehemently contended that the version of the incident, put
forth by the appellants, is the first account of the occurrence, having been
recorded vide DDR No.17. In such circumstances, the Investigating Officer
was under a legal obligation to fairly investigate the allegations contained
therein before submitting the final report. However, instead of conducting an
impartial investigation into the defence version, the Investigating Officer
deliberately ignored the same and attempted to suppress it. He acknowledged
its existence only when he was confronted with the relevant record during his
cross-examination.
41. He contends that the defence version remained consistent that the
occurrence had its genesis in a sudden quarrel between accused/Surinder and
sons of Dharam Pal (since deceased) owing to a taunt made by Surinder which
escalated into a physical scuffle. He contends that the evidence on record
also shows that Surinder was about 19 years of age and was a wrestler by
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profession and had returned from the wrestling ground shortly before the
occurrence. He was physically robust and in the course of the ensuing
grappling, could have caused the injuries such as tenderness, swelling and
other superficial abrasion injuries noticed on the persons of the complainant
witnesses, and without the use of the weapons attributed by the prosecution.
42 Counsel contends that the prosecution has also failed to offer any
explanation whatsoever for the injuries found on the person of Surinder. In
support of this submission, learned Senior Counsel placed reliance upon the
testimony of DW-5, Dr. Sharanjit Singh. The injuries on the person of
Surinder are extracted as under: -
“1) A lacerated wound in the scalp right frontal region, 1 cm
from the mid line and obliquely placed, size 2 cm x 5 cm.
Clotted blood was present. No history of vomitting
vertigo there. Advised x-ray of the skull and Surgeon
opinion.
2) A contused abrasion with swelling with deformity of the
left elbow including forearm, lateral side. Advised x-ray
of the part and ortho Surgeon Opinion.
3) General swelling with reddish colour contusion of left
shoulder joint, size 4x2.5cm on the anterio lateral aspect.
Advised x-ray of the left shoulder.
4) A swelling with contusion left knee joint size 5x3cm.
Advised x-ray of part and ortho Surgeon opinion.”
43. He contends that the nature, dimensions and seat of the injuries
sustained by Surinder probabilise the defence plea that injuries caused by him
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to the complainant party could have been inflicted in the exercise of his right
of private defence.
44. He also submits that the most credible witness who could have
testified about the manner in which the incident flared up was Jasbir and
despite him being originally cited as a witness in the final report as well as the
list of witnesses prepared by the prosecution, he was given up without any
explanation. Learned Senior Counsel argued that the non-examination of such
a vital witness gives rise to an adverse inference against the prosecution.
45. He further contends that the other independent witnesses to the
recoveries viz. Jugti and Vinod son of Chander, as well as Wazir, have also
not been examined in the present case. The trial Court recorded a specific
finding that the recovery in this case was not proved. Once the recoveries are
held to be doubtful, there can be no assumption that the weapons were
recovered at the instance of the appellants or used in the commission of the
offence. The existence of any stains or marks on the said weapons thus is
inconsequential and cannot be relied upon to connect the appellants with the
alleged assault. It was further submitted that the prosecution was under a legal
obligation to establish not only the recovery but also the chain of custody and
the preservation of the recovered articles. Mere assertion of the prosecution
that the weapons were recovered at the disclosure of the appellants is
unacceptable when the recoveries have neither been proved as per law nor
accepted by the trial Court. The findings regarding the failure of the
prosecution to prove the recoveries have remained unchallenged and have
thus attained finality.
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46. Learned Senior Counsel further argues that even otherwise, the
prosecution case suffers from serious infirmities. He contends that the blood-
stained earth was lifted from inside the house of the complainant even though
it is undisputed that the occurrence did not take place inside the house but
outside. The Investigating Officer failed to conduct an investigation into the
defence version of the occurrence. No effort was made to verify the
circumstances pleaded by the appellants regarding the genesis of the incident
or the place where the initial altercation had taken place. It is, thus, contended
that, in the absence of any meaningful investigation into the defence case,
there was no legitimate basis for the prosecution to discard the version put
forth by the appellants or to exclude the possibility that the occurrence had in
fact transpired in the manner suggested by the defence.
47. It is argued with vehemence that the conduct of the Investigating
Officer demonstrates a clear bias in favour of the complainant party. It is
submitted that, despite admitting during his deposition that he was aware of
the fact that Rajbir was employed with the Ministry of Home Affairs, was
posted at New Delhi and had remained on official duty until 7:00 p.m. on
10.01.2004, the Investigating Officer made no endeavour whatsoever to
independently verify whether Rajbir could have been present at the place of
occurrence at the relevant time. Instead, he relied exclusively upon the
statements of the prosecution witnesses, without undertaking any objective
investigation into the plea of alibi. It has even come forth in the evidence that
Police officials did contact Constable Naseeb Singh (DW-3), i.e. a colleague
who was staying along with Rajbir at the residential quarter at Mandir Marg,
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New Delhi, but even his statement was not recorded. It is argued that the trial
Court also failed to appreciate the testimony of DW-3 and discarded the same
solely on the ground that the residential quarter had not been jointly allotted
in the names of Rajbir and Naseeb Singh. Learned Senior Counsel submitted
that such reasoning is legally untenable and factually unrealistic. Merely
because Naseeb Singh was not the formal allottee of the Government
accommodation would not, by itself, lead to a conclusion that he was not
residing there. It was argued that there is no legal impediment that only an
allottee of a Government quarter can occupy it and he cannot share it with his
family members, friends or colleagues temporarily. Counsel submits that the
trial Court observed that as Naseeb Singh was drawing House Rent Allowance
and had disclosed his residential address as Najafgarh, New Delhi, hence, he
was unlikely to be residing with Rajbir. It is submitted that such an inference
is based on conjecture rather than appreciating evidence. Having regard to the
nature of duties performed by sentry-level personnel in the Ministry of Home
Affairs, which are often at odd hours and on rotational shifts, it is neither
uncommon nor improbable for colleagues to stay together in Government
accommodation for reasons of convenience instead of commuting on daily
basis cross the city and especially a city like Delhi.
48. Learned Senior Counsel further contends that while Jasbir, who
was the actual eyewitness to the commencement of the incident, has not
stepped into the witness box. It is argued that in their statements recorded by
the police neither PW.4 Bhoop Singh nor PW.5 Ashok or PW.10 Mangal
stated of having caused any injury to Surinder, however, in their deposition
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before the Court, they made an improvement and stated that Surinder
sustained injuries in the scuffle with Jasbir. PW.10 Mangal, however, stated
that the scuffle did not take place in his presence and that even when the
accused came to the spot and raised a lalkara, they came out empty handed
and did not bring any weapons to save their father. It is contended that every
prosecution witness originally denied having caused any injury to Surinder.
The prosecution thus failed to explain how and under what circumstances
Surinder sustained the injuries found on his person. Learned Senior Counsel
submits that where the prosecution suppresses or fails to explain the injuries
sustained by the accused during the same occurrence, the prosecution version
requires prudent examination. In such circumstances, Surinder could
reasonably have entertained a genuine apprehension to his life or personal
safety he could well have inflicted in the exercise of his right of private
defence.
49. Learned Senior counsel thereafter adverted to the finding(s)
recorded by the trial Court on different aspects and the manner in which the
same have been dealt with. While referring to the plea of alibi raised by Rajbir,
learned senior counsel submits that the trial Court erroneously cast a burden
of proof on him that he could not have been present at the place of occurrence
under any circumstances whatsoever. It is contended that, in doing so, the trial
Court virtually placed a burden equivalent to that resting upon the
prosecution, namely, to establish the fact beyond reasonable doubt. Learned
senior counsel argues that the plea of alibi is not a general exception under the
Indian Penal Code, 1860, but is merely a rule of evidence. It is, thus, submitted
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that such a plea is not required to be established beyond reasonable doubt by
the accused and if, on a preponderance of probabilities emerging from the
evidence on record, the accused succeeds in creating a reasonable doubt
regarding his presence at the place of occurrence at the relevant time, the
benefit of such doubt necessarily enures to him. In support of his aforesaid
submissions, he placed reliance on the judgment of the Hon’ble Supreme
Court in the matter of ‘Dharam Singh and others Vs. State of Punjab’,
reported as 1993 Supp (3) SCC 532. The relevant extract thereof reads thus:
-
“8. In any event there is one other aspect namely the alibi set up
by A-1 and A-2. A-1 Dharam Singh having denied the offence and
also the various circumstances put against him under Section
313 CrPC statement finally stated that he attended his office till
7.30 p.m. on December 2, 1978 at Chandigarh. In support of his
alibi, he examined DWs 1, 2 and 4. DW 1 Amarjit Singh Gill, is
the Executive Engineer, Punjab Irrigation Department, Central
Design Office, Chandigarh. He deposed that A-1 Dharam Singh
is employed as a draftsman in the Section of Design Office and
headquarters being at Chandigarh A-1's office is housed in the
same building where DW 1 sits. The Punjab Irrigation
Department submitted a composite irrigation project for World
Bank assistance. A World Bank team came to Chandigarh during
November 1978 for re-appraisal of the project. DW 1 and other
officials from the Irrigation Department were deputed to process
the necessary information for answering the queries made by the
team of the World Bank. The World Bank team was expected to
go back on 8th or 9th December, 1978. Therefore the Irrigation
Department Officers were asked to finalise the compilation of the
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reports with regard to the queries made by the World Bank team
and they were asked to make the same ready by 5th December.
DW 1 deputed Assistant Engineer Mr Malik, DW 2 to ensure the
finalisation of the reports and complete the work and the officers
were also asked to do overtime work. Then we have the evidence
of DW 2 S.R. Malik which is very important. He deposed that he
was working as an Assistant Engineer and that on December 2,
1978 all the employees of his office attended to their duties and
in connection with the impending visit of the World Bank team
and in view of the urgency of the matter they had to complete the
necessary compilation containing the information needed. DW 2
further deposed that DW 1 instructed him to see that the report
was complete in all respects on that day namely December 2,
1978. Pursuant to this order of DW 1, DW 2 stayed in his office
along with A-1 and Bhupinder Singh and Balraj till about 7.30
p.m. on December 2, 1978 at which time they completed the
report. DW 2 categorically stated that A-1 remained in his office
till 7.30 p.m. DW 4 Bhupinder Singh was another officer working
in the same Department. His evidence is also to the effect that A-
1 and other officers along with DW 2 worked in their office till
7.30 p.m. on December 2, 1978 for the purpose of the completion
of the papers including the maps. DWs 2 and 4 who are important
witnesses, were cross-examined but they asserted that A-1
worked in the office till 7.30 p.m. on December 2, 1978. The High
Court, however, was not prepared to accept this evidence and
observed that having worked till 7.30 p.m. A-1 could have come
to the scene of occurrence which is about 10 miles away and
participated in the occurrence. Though there is a remote
possibility but under the circumstances it does not appear to us
to be natural for A-1 to have left his office at 7.30 p.m. having
worked overtime and be at the scene of occurrence some time
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round about 7 p.m. In the FIR the time of occurrence is
mentioned as 7 p.m. If that is so, it would not have been possible
for A-1 to be present at the scene of occurrence. The High Court,
however, explained this away by saying that PW 18 as an
illiterate could not have given the correct time. But PW 18 stated
that he has studied up to matric. Therefore we cannot presume
that he did not know the time. That apart, if it was such a pre-
planned murder one would not have expected A-1 to remain in
the office and it was also a chance that he was made to work till
7.30 p.m. on that day in view of the urgency. DWs 2 and 4 are
responsible officers and respectable witnesses and when they say
that A-1 was with them till 7.30 p.m. there is no need to doubt the
same in the circumstances of the case. Therefore, in our view A-
1 has been falsely implicated. This false implication again affects
the veracity of the alleged eyewitnesses. It only shows that they
being interested witnesses were bent upon to implicate A-1 who
had some dispute with the deceased's family. From the evidence
of PW 22 it appears that he was also inimical towards A-1 and
A-2 and admittedly he was with PW 18 throughout and especially
at the time of giving the FIR before the police.
9. A-2 Gurdev Singh who is no other than the brother of A-1
Dharam Singh also pleaded alibi. Admittedly he is also an
employee of the Punjab Irrigation Department at Patiala.
Having pleaded not guilty he further stated in his statement under
Section 313 CrPC that he had been falsely implicated at the
instance of PW 22 and Joginder Singh who were hostile to him
and to the members of his family. A-2 further stated that he was
on duty at Patiala from 10 a.m. to 5 p.m. and even after office
hours he remained at Patiala only and during the subsequent
days also he had been attending to his duties. No doubt he has
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not examined any witness in support of his alibi but PW 25 the
Investigating Officer admitted that he has verified the office
records which show that both A-1 and A-2 attended their offices
on December 2, 1978. It therefore emerges that A-2 was at
Patiala and attended his office at least till 5 p.m. and Patiala is
about 40 miles away from the scene of occurrence. In such a
situation his presence at the scene of occurrence at about 7 p.m.
becomes highly doubtful. This circumstance also renders the
evidence of the alleged eyewitnesses unreliable.”
50. He also relies upon the judgment passed by the Hon’ble Supreme
Court in the matter of ‘Binay Kumar Singh Vs. State of Bihar’ reported as
(1997) 1 SCC 283: -
“22. We must bear in mind that an alibi is not an exception
(special or general) envisaged in the Penal Code, 1860 or any
other law. It is only a rule of evidence recognised in Section 11
of the Evidence Act that facts which are inconsistent with the fact
in issue are relevant. Illustration (a) given under the provision is
worth reproducing in this context: -
“The question is whether A committed a crime at Calcutta
on a certain date; the fact that on that date, A was at
Lahore is relevant.”
23. The Latin word alibi means “elsewhere” and that word is
used for convenience when an accused takes recourse to a
defence line that when the occurrence took place he was so far
away from the place of occurrence that it is extremely
improbable that he would have participated in the crime. It is a
basic law that in a criminal case, in which the accused is alleged
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to have inflicted physical injury to another person, the burden is
on the prosecution to prove that the accused was present at the
scene and has participated in the crime. The burden would not
be lessened by the mere fact that the accused has adopted the
defence of alibi. The plea of the accused in such cases need be
considered only when the burden has been discharged by the
prosecution satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who
adopts the plea of alibi, to prove it with absolute certainty so as
to exclude the possibility of his presence at the place of
occurrence. When the presence of the accused at the scene of
occurrence has been established satisfactorily by the prosecution
through reliable evidence, normally the court would be slow to
believe any counter-evidence to the effect that he was elsewhere
when the occurrence happened. But if the evidence adduced by
the accused is of such a quality and of such a standard that the
court may entertain some reasonable doubt regarding his
presence at the scene when the occurrence took place, the
accused would, no doubt, be entitled to the benefit of that
reasonable doubt.
(emphasis supplied)
51. Further reliance is also placed on the judgment of the Supreme
Court in the matter of ‘State of Haryana Vs. Prabhu and others’ reported as
(1979) 4 SCC 189. The relevant part of the judgment is extracted hereunder:
-
“There are nine respondents in this appeal filed by the State of
Haryana on grant of special leave by this Court. The trial court
convicted each of the said respondents under Section 302 read
with Section 149 of the Penal Code, 1860 and awarded life
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imprisonment to each. They were further convicted under Section
325 read with Section 149 and for the offence of rioting. The High
Court of Punjab and Haryana has acquitted Prabhu, Respondent
1 and Hoshiar, Respondent 6of all the charges accepting their
plea of alibi. It has maintained the conviction of seven other
respondents only under Section 325 read with Section 149 of the
Penal Code and not under Section 302 read with Section 149. A
sentence of seven years' rigorous imprisonment has been
awarded to Sheoram plus a fine of Rs 2000 and the others have
been given a sentence of three years* rigorous imprisonment
plus Rs 1000 fine each. They did not challenge their conviction
in this Court filing any appeal. We were informed at the Bar that
all the convicted respondents have served out their sentences.
The State had presented this appeal for setting aside the acquittal
of Prabhu and Hoshiar and for convicting them along with other
respondents underSection 302 read with Section 149 of the Penal
Code.
xxx
7. In his statement under Section 342 Cr.P.C., 1898, Prabhu
stated:-
On the day of occurrence, I was admitted in Civil Hospital
Rewari as indoor (patient) Hospital?. Again said, I was
admitted in Gohana Hospital.
In Sessions Court he said:
I was not present at the spot and was admitted in the
Bawana dispensary of Municipal Corporation Delhi at the
time of the alleged occurrence. Dr Ashok Nagpal proved
certain records of the Bawana dispensary but they were
not trustworthy as held by the trial court for cogent
reasons. The High Court was not justified in brushing
aside all these infirmities in the defence plea of alibi even
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to probabilise this plea and in accepting the evidence of Dr
Ashok Nagpal on its face. Be that as it may, the prosecution
case cannot be said to have been proved against Prabhu
merely because he came out with a plea of alibi, the
evidence in support of which was untrustworthy. Having
examined the evidence of the prosecution witnesses who
gave the ocular version of the occurrence in the light of the
First Information Report lodged by PW Mohar Singh we
have come to the conclusion that the case against him is
doubtful. .He was a sarpanch of the village and at the time
of the occurrence he was not less than 60 years of age. It
was not necessary for him to have himself participated in
the occurrence. The part of assault attributed to him was
not specific in ‘the First Information Report nor was the
story of the Lalkara mentioned therein. His brother
Harphool, it seems, was falsely implicated and although
that was not sufficient to cast a doubt on the prosecution
story as a whole, it is sufficient to cast a doubt in our mind
as to the participation of respondent Prabhu in the
occurrence. According to the evidence of PW Mohar
Singh, respondent Prabhu gave a lathi blow on the head of
Kalu and respondent Sohan gave one lathi blow on the
right temple of Kalu and one lathi blow on his left leg.
Apart from the injury found on his left leg, apparently two
injuries were found towards the right temple side of Kalu
and they were very close to the right pinna. In all
probability they could not have been caused by two blows
on the head or the temple part of the head of Kalu. They
seem to have been caused only by one lathi blow which was
given by Sohan. Thus on this ground also Prabhu's
participation in the assault becomes doubtful. We do not
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think that justice requires the setting aside of the order of
acquittal in his favour and sending him to jail now.
8. Hoshiar's plea of alibi of having been admitted in the
Rewari Hospital was consistent. Although the records of
the Hospital proved by Dr Mohinder Kumar, DW were not
very reliable, the suggestion in cross-examination on
behalf of the prosecution seems to be that Hoshiar had
gone out of the Hospital on the night of the occurrence and
taken part in it. Such a suggestion postulates that the
prosecution was not seriously challenging his admission in
the Rewari Hospital. We do not think that we shall be
justified in differing from the High Court that he had left
the Hospital without leave of the doctor in the night of the
occurrence to take part in it. We, therefore, maintain his
acquittal also by the High Court.”
52. Referring to the aforesaid findings, learned Senior Counsel
contends that once the defence succeeds in probabilising that Rajbir could not
have been present at the place of occurrence at the relevant time, the burden
shifts to the prosecution to establish affirmatively that he was, in fact, present
at the spot when the incident took place. It is submitted that the plea of alibi
need only create a reasonable probability regarding the absence of the
accused, whereupon the prosecution is required to dispel such doubt by
leading cogent and reliable evidence. Learned Senior Counsel further argues
that the true test is whether the relevant facts are brought to the notice of the
investigating agency at the earliest point of time. It is contended that, in the
present case, the fact that Rajbir was on official duty at New Delhi on the date
of the occurrence stood disclosed during the investigation itself i.e. much prior
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to the filing of the final report. In such circumstances, the burden lay upon the
investigating agency and, consequently, the prosecution, to undertake a fair
investigation into the said plea and to establish conclusively that Rajbir was
present at the place of occurrence only. It is further contended that the trial
Court thus fell into error by accepting the plea of alibi partially and yet
assuming Rajbir's presence at the place of occurrence.
53. He further contends that the trial Court adopted an incorrect
approach in assuming involvement of the appellant-accused/Surinder. He
contends that while the burden lay upon the prosecution to explain the injuries
sustained by Surinder, the trial Court used the existence of injuries on his
person to assume as a proof of his participation in the commission of the
offence.
54. It is further contended that the prosecution failed to establish the
recoveries of the weapons used in the commission of the offence. Further, the
medical evidence does not support the prosecution version. Learned Senior
Counsel argues that had the assault in fact been carried out using weapons
such as a gandasi, jaili, mussal and lathis, the injured witnesses would
ordinarily have sustained injuries corresponding to the nature of such
weapons, including incised wounds, punctured wounds, lacerated wounds or
other characteristic marks of their impact. However, the medico-legal
evidence does not disclose the existence of any such injuries. Rather, the
injuries found on the complainant witnesses are predominantly superficial in
nature, comprising abrasions, tenderness, swelling and minor lacerations
which are wholly inconsistent with the prosecution allegation regarding the
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use of deadly weapons. It is thus contended that the medical evidence
completely rules out the possibility of the injuries having been caused in the
manner alleged by the prosecution.
55. It is further alternatively argued that in any case, it at worst
appears to be a case of free fight and in such circumstances, the persons could
not be held liable for any injury beyond what is specifically attributed and
proved. He submits that as per exceptions to Section 300 IPC, in a case of free
fight, it does not count as to which party initiated the fight or gave the first
blow and further, the case would not change its flavour on as to who sustained
numerically higher injuries. Such a measured methodology is inapplicable.
The Court of law would mere take note of a fact as to whether any party has
taken undue advantage or acted with cruelty. In such an eventuality, the party
would not be entitled to the said benefit and offence would stand culminated.
56. It is hence contended that the prosecution has suppressed the true
genesis of the occurrence and failed to present a complete and truthful account
of the incident and the cumulative effect of the aforesaid infirmities creates a
serious and reasonable doubt regarding the prosecution version and, thus, the
benefit of such doubt be extended to the appellants.
ARGUMENTS BY THE STATE AND COUNSEL FOR THE
PETITIONER IN CRR-608-2005 AND FOR THE COMPLAINANT IN
CRA-D-848-DB-2004 AND CRA-D-880-DB-2004
57. Responding to the above, learned State counsel as well as counsel
for the petitioner in CRR-608-2005 and for the complainant in CRA-D-848-
DB-2004 & CRA-D-880-DB-2004, contend that the submissions advanced on
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behalf of the appellants proceed on a misplaced premise and are an attempt to
divert the attention of the Court from the core evidence available on record. It
is submitted that the prosecution case rests upon the testimonies of three
injured eyewitnesses, all of whom have consistently narrated the detailed
account of the occurrence and the injuries caused by the respective accused.
The ocular account furnished by the injured witnesses is also corroborated by
the medical record as well as the recoveries of weapons effected during
investigation.
58. They submit that there was no inordinate delay in reporting the
incident to the Police. The incident took place at about 10.30 p.m. on
10.01.2004 whereafter the injured reached PGIMS Rohtak at 11.45 p.m. when
their medico-legal examination commenced. After conclusion of the medical
examination, the attending doctor dispatched the ruqa at 12:30 a.m., which
was received at Police Post, PGIMS, Rohtak, at 12:50 a.m. It is contended
that any delay thereafter in forwarding the ruqa to the jurisdictional police
station or in the arrival of the police officials from Police Post Lakhan Majra
or Police Station Meham should not be read against the complainant party.
Counsel for the complainant contends that in the immediate aftermath of the
occurrence, the foremost concern of the complainant party would not be to
approach the police but to secure urgent medical treatment for Dharam Pal,
who had sustained grievous injuries. It is, thus, contended that no adverse
inference be drawn against the prosecution on account of the time taken in the
registration of the FIR, and the delay, if any, does not detract the credibility
of the prosecution case.
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59. Learned counsel for the complainant further contends that the
trial Court has rightly disbelieved the defence version as argued by the
accused-appellants that, after the medico-legal examination, the members of
the complainant party had gone to the residence of their relatives at Rohtak,
holding that such an explanation was a device adopted by the Investigating
Officer to justify and cover up the delay attributable to him in carrying the
investigation forward. It is stated that during their depositions before the trial
Court, PW-4 Bhoop Singh, PW-5 Ashok and PW-10 Mangal Singh
consistently stated that they remained present at PGIMS, Rohtak throughout
and had not gone to the residence of any of their relatives. Learned counsel
argues that no material whatsoever has come forth during the investigation to
disclose the identity or residence of any such relative, thus rendering the
defence plea wholly speculative. Learned counsel further submits that the
complainant party had been informed that the police officials would reach the
hospital by about 6:00/6:30 a.m. to record their statements and accordingly
they waited at the hospital for the arrival of the police. However, when no
police official arrived, some of them proceeded to Lakhan Majra, where they
were informed that the police personnel had already left for PGIMS, Rohtak.
They thereafter returned to the hospital, while PW-4 Bhoop Singh continued
to remain present there throughout. It is thus contended that there was no delay
or lapse on the part of the complainant party in reporting the occurrence to the
competent authorities. Any delay that subsequently occurred was entirely
beyond their control and could not be attributed to them. The same, thus,
would not constitute a circumstance adverse to the prosecution or be used to
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discredit the prosecution case.
60. It is further argued that the ocular evidence in the present case
stands fully corroborated by the medical evidence and the injuries are upon
the person of the injured are consistently reflected in their respective MLR. It
is thus contended that the prosecution succeeded in establishing its case
beyond doubt against the appellant-accused and that there exists no justifiable
reason to disbelieve the prosecution version. Learned counsel further contend
that the occurrence undisputedly took place in front of the house of the
complainant party and the appellants have failed to offer any plausible
explanation as to why they had come to the place of occurrence, if they were
not involved in the incident. It is vehemently argued that if the version of the
defence is to be accepted, the incident in question took place near Badi
Chopal, however, no independent or reliable evidence has been adduced by
the defence to establish that any such occurrence had, in fact, taken place at
the time and place alleged. Learned counsel contends that, in the absence of
any evidence substantiating the alleged first incident, the defence version
regarding the genesis of the occurrence remains wholly unproved.
Consequently, the plea that the occurrence commenced in the manner
suggested by the defence would not merit acceptance, and the prosecution
version, being supported by the testimonies of the injured eyewitnesses as
well as the medical evidence, deserves to be accepted.
61. Learned counsel also argued that the defence set up by the
appellants is inconsistent even with regard to the time of the occurrence. It is
submitted that, in DDR No. 17, which was recorded at 2:05 a.m., Surinder
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Singh stated that the incident had taken place at about 7:00 p.m. on
10.01.2004. However, during the course of cross-examination and in the
statements recorded under Section 313 Cr.P.C., the defence shifted its stand
by suggesting that the occurrence had taken place at about 8:00 p.m. It is
contended that the appellants have failed to explain that, if Surinder had
indeed sustained injuries at about 8:00 p.m., where was he from 8:00 p.m.
until 2:05 a.m., when he first approached the police, and why he was medico-
legally examined only at 3:15 a.m. on 11.01.2004. It is thus apparent that
sufficient time was available to the appellants to deliberate and consult
amongst themselves in setting up a defence and gaining an advantage over the
prosecution. Learned counsel contend that, instead of attending to the injured,
the appellants chose to approach the police to create a defence in their favour,
whereas the complainant party prioritised securing medical treatment for the
injured persons. It is thus contended that the appellants should not be
permitted to derive any advantage merely because they attempted to steal a
march over the complainant party by approaching the police with a version
devised after deliberation.
62. Learned counsel further contend that the plea of alibi raised on
behalf of Rajbir is wholly untenable and does not merit acceptance. It is
submitted that, according to the prosecution version, the occurrence resulting
in the injuries had taken place at about 10:30 p.m., as is reflected in the ruqa
as well as the medico-legal reports of PW-4 Bhoop Singh and the other injured
witnesses. It is argued that the complainant party had no occasion to know
the duty hours or place of posting of Rajbir so as to deliberately project the
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time of occurrence at 10:30 p.m. only to nullify his plea of alibi. He contends
that the same is of vital significance considering that undisputedly the parties
had no previous dispute or enmity amongst them. It is thus contended that the
complainant party had no motive or reason to falsely implicate Rajbir or any
other appellant by attributing to them a role which they had not played.
Learned counsel further contend that, in so far as Injury No. 1 sustained by
the deceased Dharam Pal is concerned, the medical evidence supports the
prosecution case. It is submitted that the doctor opined that the said injury
could have been caused by a weapon such as a mussal (pestle). It is further
argued that the said weapon was recovered pursuant to the disclosure
statement made by Rajbir. Learned counsel thus contend that there exists no
valid reason to ignore or discard this circumstance while appreciating the
prosecution evidence, as the same lends assurance to the prosecution version
regarding the role attributed to Rajbir.
63. Counsel has further pointed out that bloodstains were detected on
the weapons recovered during the course of investigation as well as the blood-
stained earth lifted from the place of occurrence. It is submitted that, even
though the bloodstains could not ultimately be serologically matched on
account of disintegration of the material, such a circumstance, by itself, would
not rule out the use of the said weapons in the commission of the offence in
the manner alleged by the prosecution and accepted by the trial Court. It is
further contended that the prosecution evidence, both ocular and medical,
remains consistent throughout and inspires confidence. There is thus no
reason to discard evidence of such sterling quality. The finding of conviction
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has thus rightly been recorded by the trial Court against the appellant(s)
herein. He has also referred to the judgment in the matter of ‘Solanki
Chimanbhai Ukabhai v. State of Gujarat, reported as (1983) 2 SCC 174,
wherein the Supreme Court held that it would not be proper to discard
testimony of eye witnesses, if their deposition is otherwise satisfactory,
merely on the ground that there are certain conflicts with the ocular and
medical evidence on record.
64. He contends that the suggestions on behalf of the appellants
regarding the incapability of the injuries being caused with the weapons is
based on an error. It is submitted that there is a material distinction between
an injury not being the probable result of a particular weapon and an injury
not being capable of being caused by such a weapon at all. The medical
evidence in the present case does not conclusively exclude the possibility of
the injuries having been caused by the weapons attributed to the appellants.
He thus contends that where two views are reasonably possible on the basis
of the medical evidence, the consistent and reliable ocular account furnished
by the injured eyewitnesses deserves to be accepted. The testimony of an
injured eyewitness carries great evidentiary value and, unless shown to be
inherently improbable or unreliable, ought to prevail. It is submitted with
vehemence that medical evidence is essentially corroborative in nature and is
not the primary evidence on the basis of which the veracity of a consistent
ocular account is to be tested. Hence, the medical opinion would not assume
primacy over the direct testimony of injured eyewitnesses. He contends that
undisputedly, the records of PGIMS, Rohtak, as well as the post-mortem
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report, establish that Dharam Pal (since deceased) had been brought to
PGIMS, Rohtak. The mere omission to mention the said fact in the ruqa
dispatched by the attending doctor would not, by itself, constitute a suspicious
circumstance to cast any doubt upon the prosecution case. Such an omission
is at best an inadvertent lapse and would not dilute the otherwise consistent
prosecution evidence.
65. He further contends that the appellants have taken mutually
contradictory stands in their defence as well as in the statements recorded
under Section 313 Cr.P.C. He contends that not only is there a material
inconsistency regarding the time of the first occurrence between Surinder and
Jasbir, Surinder having stated in DDR No. 17 that the incident had taken place
at about 7:00 p.m., whereas the defence subsequently suggested that it had
taken place at about 8:00 p.m., but also that the defence version also suffers
from further inherent contradictions. It is argued that, in DDR No. 17,
Surinder stated that Karan and Dilbagh had reached the spot after noticing that
he had sustained injuries and had thus cited them as witnesses to the
occurrence. However, Karan and Dilbagh, in their respective statements
recorded under Section 313 Cr.P.C., denied even being present in the village
on the date of the occurrence. He contends that a similar stand of alibi had
also been taken by Krishan. However, despite taking such a stand, none of the
appellants who claim to be away from the place of occurrence lead any
evidence in support thereof. Thus the defence is riddled with inconsistencies
and that the appellants have repeatedly contradicted one another as well as
their own earlier versions.
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66. It is argued with vehemence that right of private defence would
not be available to the appellants since the deceased was not armed with any
weapon during the incident and that even DDR No. 17 does not contain any
allegation that Dharam Pal had threatened Surinder or had acted in a manner
giving rise to a reasonable apprehension of death or grievous hurt.
Consequently, it is contended that there existed no circumstance from which
Surinder could have entertained a reasonable apprehension necessitating the
exercise of the right of private defence. The plea of private defence, thus,
would not be available to the appellants in the absence of any real or imminent
threat to the person of Surinder. In support of his submission, he relied upon
the judgment of the Supreme Court in the matter of James Martin v. State
of Kerala, reported as (2004) 2 SCC 203.
67. Learned State counsel further contends that, even otherwise, the
conduct of the appellants is wholly inconsistent with the defence now sought
to be projected. It is submitted that no complaint was ever made by any of the
appellants before any competent authority alleging false implication by the
investigating agency. It is further submitted that no complaint or cross-case
was ever instituted at their instance challenging the prosecution version or the
manner in which the investigation had been conducted. Learned State counsel
argues that the appellants, having never questioned the fairness of the
investigation before any competent forum, are now precluded from raising
such a plea for the first time in appeal. It is further submitted that the conduct
of the appellants clearly indicates their complicity in the occurrence and
demonstrates that DDR No. 17 was lodged merely as a pre-emptive measure
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to create a defence and to steal a march over the prosecution. The said DDR
was not a genuine account of the occurrence but was a calculated attempt to
lay the foundation for the defence to be subsequently raised by the appellants.
68. In view of the aforesaid submissions, learned State counsel and
learned counsel appearing for the complainant contend that the prosecution
has succeeded in establishing the guilt of the appellants beyond all reasonable
doubt through the consistent and cogent testimonies of the injured
eyewitnesses which is also corroborated by the medical and other evidence on
record. It is submitted that the defence sought to be projected by the appellants
is inherently contradictory, unsupported by reliable evidence and incapable of
creating any reasonable doubt in the prosecution case. They thus contend that
the trial Court has correctly appreciated the oral as well as documentary
evidence, rightly rejected the defence pleas and recorded well-reasoned
findings of conviction which does not suffer from any legal or factual
infirmity warranting interference by this Court.
69. We have heard learned counsel appearing for the respective
parties and have gone through the documents and the evidence referred to and
relied upon on behalf of the respective parties.
CONSIDERATION
70. The rival submissions advanced on behalf of the parties reveal
that there is no serious dispute with regard to the broad sequence of events
preceding the occurrence. The prosecution as well as the defence
acknowledge that an altercation had taken place earlier in the evening of
10.01.2004 between Surinder and Jasbir Singh son of Dharam Pal. The
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dispute, however, lies in the genesis of the subsequent occurrence, the manner
in which it unfolded and the role attributed to the respective accused.
71. According to the prosecution, the earlier altercation furnished the
immediate motive for the occurrence that followed. It is alleged that, with a
view to avenge the said incident, the appellants-accused assembled at the
residence of the complainant party at about 10:00/10:30 p.m. on 10.01.2004.
Upon reaching there, they started hurling abuses and when Dharam Pal, along
with his sons and other family members, came out of the house to restrain the
appellants from misbehaving, the appellants launched a concerted assault
upon them with the weapons carried by them.
72. The gravamen of the prosecution case is that, during the assault,
Rajbir dealt a blow with a mussal (pestle) on the head of Dharam Pal, who
was then about 70 years of age. The post-mortem examination revealed a
lacerated wound measuring 6 × 1 cm over the posterior aspect of the left
parietal region, placed horizontally, approximately 7 cm to the left of the
midline and 10 cm above the left pinna. The said injury was opined by the
doctor to be sufficient in the ordinary course of nature to cause death and was
found to be the cause of Dharam Pal's demise. Apart from the fatal injury
suffered by Dharam Pal, the prosecution also relies upon the injuries sustained
by PW-4 Bhoop Singh, PW-5 Ashok and PW-10 Mangal Singh, all of whom
claim to be injured eyewitnesses to the occurrence. As per the prosecution,
the appellants were variously armed with jailies, lathis, gandasis and a
mussal, and the injuries sustained by the deceased and the injured witnesses
were inflicted by the appellants with the said weapons.
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73. The defence, however, projects an entirely different version of
the occurrence. According to the appellants, the prosecution has artificially
bifurcated what was, in reality, a single continuous occurrence into two
distinct incidents. It is their consistent stand that the occurrence commenced
at about 7:00/8:00 p.m. with an altercation between Jasbir Singh and
appellant-Surinder Singh and that the subsequent incident alleged by the
prosecution at about 10:30 p.m. never took place in the manner alleged. The
defence version is that, during the altercation with Jasbir Singh and the
members of the complainant party, Surinder Singh sustained injuries on vital
parts of his body, thereby giving rise to a reasonable apprehension of danger
to his life and personal safety and cause injuries in self defence. It is further
their case that Surinder Singh, who was then about 19 years of age and was
actively engaged in wrestling, approached the police during the intervening
night of 10/11.01.2004 and got his version recorded vide DDR No. 17 at about
2:05 a.m. The appellants contend that the said DDR constitutes the first
account of the occurrence and, thus, deserved due consideration during
investigation.
The principal questions that arise for determination are: -
(i)
whether the investigation suffers from such infirmities as
materially affect the credibility of the prosecution case;
(ii)
whether the plea of alibi raised by Rajbir stands
probabilised;
(iii)
whether the prosecution has established the presence and
specific role of each appellant beyond reasonable doubt;
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(iv) whether the appellants are entitled to the benefit of the
right of private defence; and
(v)
whether the findings recorded by the trial Court warrant
interference.
It is with a view to answering these questions that the evidence
adduced by the parties now falls for consideration.
74. The position in law needs no reiteration that the burden of
proving the guilt of an accused beyond reasonable doubt rests entirely upon
the prosecution and continues to remain upon it throughout the trial. The
accused is presumed to be innocent unless such presumption stands displaced
by cogent, reliable and legally admissible evidence led by the prosecution.
There is no corresponding obligation upon the accused to establish his
innocence or to prove his defence beyond reasonable doubt.
75. The position in law with regard to plea of alibi stands settled
through consistent judgments. Where an accused sets up a specific defence,
such as a plea of alibi or a plea of private defence, the standard required to be
discharged is not that applicable to the prosecution. It would suffice if the
accused succeeds in probabilising his defence on a preponderance of
probabilities or is able to bring on record such material, either through the
prosecution evidence or the defence evidence, as creates a reasonable doubt
regarding the truthfulness of the prosecution version.
76. It is equally well settled that every reasonable doubt arising from
the evidence must enure to the benefit of the accused. Such doubt, however,
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must be a real and substantial one, founded upon the evidence on record and
not upon conjectures or fanciful hypotheses. Thus, where the evidence
adduced by the prosecution leaves the Court with a reasonable doubt
regarding the genesis of the occurrence, the participation of the accused or the
correctness of the prosecution version, the accused becomes entitled to the
benefit of such doubt. Conversely, if the prosecution succeeds in establishing
its case by reliable and convincing evidence, the accused cannot claim
acquittal merely because an alternative hypothesis is remotely possible or
because some insignificant discrepancy appears in the evidence which is
otherwise largely consistent.
Issue No. (i) — Fairness and Completeness of the Investigation
77. We first take up Question No.(i), i.e. whether the investigation in
the present case suffers from infirmities that materially affect the credibility
of the prosecution case. The determination of this issue also has a direct
bearing upon the evidentiary value of the ocular account relied upon by the
prosecution. While it is settled that lapses or irregularities in investigation do
not, by themselves, necessarily result in the acquittal of an accused, the
position is equally well settled that where such lapses go to the root of the
prosecution case and create a reasonable doubt regarding the genesis of the
occurrence, the fairness of the investigation or the credibility of the version
projected before the Court, they assume considerable importance in the
appreciation of evidence. In this regard, the following aspects of investigation
are being examined.
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(a) Conduct of the Investigating Officer
78. At the outset, this court notices that the conduct of the
Investigating Officer does not inspire confidence as regards its fairness and
impartiality. The Investigating Officer initially denied having received any
complaint during the intervening night of 10/11 January, 2004. He went to the
extent of denying his presence at the Police Station during the said period. It
was only when he was confronted with the Roznamcha maintained at the
Police Station, which established his presence and being further confronted
with DDR No. 17 recorded at 2:05 a.m., that he admitted the said facts. An
Investigating Officer is expected to conduct a fair, impartial and objective
investigation and thereafter draw appropriate conclusions on the basis of the
material collected. In the present case, however, the Investigating Officer
appears to have adopted the easier course of denying and withholding of the
evidence which could have thrown better light on the case. Such conduct casts
a serious doubt on its impartiality.
(b) Delay in Setting the Criminal Law in Motion
79. Another issue that has been argued with considerable vehemence
pertains to the delay in the registration of the FIR. Learned Senior Counsel
appearing for the appellants contended that there was an unexplained delay of
more than 9½ hours in the registration of the FIR, after sending of ruqa at
10:00 a.m. on 11.01.2004, despite the occurrence having taken place around
12 hours earlier. Counsel submits that such delay afforded sufficient
opportunity for deliberation and consultation. Per contra, learned State
counsel as well as learned counsel appearing for the complainant contended
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that the appellants themselves were equally guilty of delay in reporting the
matter to the police. It is argued that, according to the defence version, the
earlier incident between Surinder Singh and Jasbir Singh had taken place at
about 8:00 p.m., yet the DDR was recorded only at 2:05 a.m., thereby
reflecting a gap of nearly six hours in approaching the police. It is, thus,
contended that the appellants could not derive any advantage from the alleged
delay in the registration of the FIR when their own conduct in reporting the
occurrence was also delayed.
80. We have gone through the ruqa, the medico-legal record as well
as the post-mortem report. The prosecution seeks to explain the delay on the
ground that the injured were immediately taken to PGIMS, Rohtak, and
reached the hospital within about an hour of the occurrence. It has been
pointed out that the medico-legal examination commenced at 11:35 p.m.,
whereafter a medical ruqa was dispatched at 12:30 a.m., which was received
at the Police Post, PGIMS Rohtak at 12:50 a.m. It is contended that, thereafter,
the matter was beyond the control of the complainant party. It has further been
argued that the circumstances prevailing at the relevant time justified such
delay, inasmuch as the immediate priority of the complainant party was to
take their injured father to the hospital for treatment rather than to proceed to
the Police Station to lodge a report.
81. A specific query was, however, put to the learned State counsel
as well as learned counsel for the complainant as to why, although the medico-
legal reports of PW-4 Bhoop Singh, PW-5 Ashok Kumar and PW-10 Mangal
Singh record their arrival at the hospital and show that their medico-legal
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examination commenced at about 11:30 p.m., the medical ruqa makes no
reference whatsoever to Dharampal having been brought to PGIMS, Rohtak.
The post-mortem report (Ex. PN/1), on the contrary, records that Dharampal
was brought dead to the Casualty Department of PGIMS, Rohtak at 12:30 a.m.
on 11.01.2004, i.e. more than an hour after PW-4 Bhoop Singh, PW-5 Ashok
Kumar and PW-10 Mangal Singh had already been medically examined. The
post-mortem report further records that the dead body of Dharampal was
identified by Ranbir Singh, son of Dharampal, and Tilak Ram, son of Dariya
Singh, who was the brother-in-law (Jija) of the deceased. Significantly, the
medico-legal record pertaining to the injured witnesses also does not reflect
the presence of Jasbir Singh. It appears highly improbable that, if the
occurrence had taken place in the manner suggested by the prosecution, and
three brothers had sustained injuries while their father had succumbed to the
injuries, the fourth son would neither accompany the injured nor the deceased
to the hospital. Equally, there is no explanation as to why Jasbir Singh did not
proceed to the Police Station to report the occurrence, especially when he was
admittedly not accompanying the injured or the deceased.
82. What is equally striking is that the inquest proceedings (Ex.
PN/3) record that the Police Station was situated at a distance of about 3
kilometres from the place of occurrence and further state that the police
received information regarding the death only at 6:00 a.m. on 11.01.2004. The
said recital, prima facie, appears to be inconsistent with the prosecution record
itself, inasmuch as Surinder Singh had admittedly reported the occurrence by
way of DDR No. 17 at 2:05 a.m. on the same day. Additionally, even the
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inquest proceedings do not record the presence of Jasbir Singh.
83. Learned Senior Counsel has argued at considerable length that
the investigation in the present case was inquest-driven, and that it is in this
backdrop that the delay in recording the statement of the complainant assumes
significance. It is evident that the complainant made specific attributions
against accused Ajmer Singh and Suresh regarding the injuries allegedly
inflicted upon the deceased, and that such attributions appeared to correspond
with the ocular assessment made by the Investigating Officer while
conducting the inquest proceedings. However, the post-mortem examination
revealed that the injuries attributed to Ajmer Singh and Suresh did not exist
on the body of the deceased. The ocular version comes under scrutiny once
the injuries attributed to Ajmer Singh and Suresh are found to be non-existent
although the similar injuries had also found mention in the inquest
proceedings prepared by the Investigating Officer. The said circumstance
lends support to the contention that the investigation was guided by the inquest
proceedings instead of a truthful recitation of the incident.
(c) Failure to Establish the Recovery of Weapons
84. The prosecution has failed even to prove the recovery of the
weapons. The trial court has recorded a specific finding that the recoveries
allegedly effected at the disclosure of the respective accused persons remained
unproved. Significantly, the said finding has not been assailed by the
complainant, despite having preferred separate petition. The said finding has,
thus, attained finality. This circumstance further casts a doubt upon the
prosecution case and satisfactory discharge of the burden of proving the
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charges beyond reasonable doubt. Where the factum of recovery itself is not
proved, the disclosure statement loses its evidentiary utility under Section 27
of the Indian Evidence Act, 1872. The weapon recovered thus cannot be relied
upon either to place the accused at the scene or to link a particular weapon
with any specific accused.
(d) Suppression of the True Genesis of the Occurrence — DDR No.17 and
the Non-Examination of Jasbir Singh
85. The witnesses have proved on record DDR No. 17, recorded at
2:05 a.m. on 11.01.2004, lodged by Surinder Singh regarding the injuries
sustained by the deceased Dharam Pal in an incident that allegedly took place
between him and Jasbir Singh at about 7:00 p.m. In the said DDR (Ex. DC),
Surinder Singh stated that while he was standing near the Chaupal, he noticed
Bhoop Singh, who was in an inebriated condition, accompanied by his brother
Mangal Singh. Upon seeing them, he cracked a joke, which was taken
offensive by Mangal Singh (PW-10) who called his brother Ashok Kumar
(PW-5) to bring a lathi from the house and initiated a fight with Surinder
Singh. Ashok Kumar immediately arrived at the spot and inflicted a lathi blow
on the head of Surinder Singh. Thereafter, another lathi was brought by Jasbir
Singh, who also inflicted an injury on the left elbow of Surinder Singh.
Mangal Singh too brought a lathi from the house and struck a blow on the
knee of Surinder Singh. The aforesaid version also indicates that the house of
the complainant party was at a short distance from the place of occurrence
since Mangal Singh was able to summon Ashok Kumar merely by calling him
loudly. This circumstance also finds some corroboration from the distances
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reflected in the site plan.
86. Even though an attempt has been made by the prosecution to
contend that the Badi Chaupal was situated at a considerable distance from
the house of the complainant and, therefore, the appellant-accused were the
aggressors who had come all the way to the place of occurrence, however, no
evidence has been pointed out from the record to substantiate such a
contention. The prosecution has failed to refer to any material on the basis
whereof such an aspect could be established or has been proved by the
prosecution.
87. It has further emerged from the testimonies of the prosecution
witnesses that, when questioned regarding the injuries sustained by Surinder
Singh, they remained evasive in their responses. PW-4 Bhoop Singh stated
that he had not caused any injury to Surinder Singh and added that his brothers
might have caused the injuries. However, PW-5 Ashok Kumar categorically
denied having caused any injury and stated that, on hearing the exhortation,
they had come out empty-handed. An improvement was sought to be added.
Likewise, PW-10 Mangal Singh also failed to offer any explanation regarding
the injuries found on the person of Surinder Singh and claimed that he came
to the spot later.
88. The failure of the prosecution witnesses to explain the injuries
sustained by the alleged assailant, especially when such injuries are located
on vital parts of the body and are of considerable dimensions, raises a serious
doubt regarding the genesis of the occurrence as projected by the prosecution.
The Court is under an obligation to objectively evaluate the evidence on
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record, and where the evidence fails to furnish a satisfactory explanation for
the circumstances that emerge therefrom, the prosecution version necessarily
suffers a dent. This assumes greater significance when all the prosecution
witnesses deny having caused any injury to Surinder Singh.
89. It is also not the case of the prosecution that the injuries were self-
inflicted or had been caused by a friendly hand. The medico-legal report of
Surinder Singh has neither been disputed nor challenged. Consequently, the
authenticity and credibility of the medico-legal report remain unimpeached.
90. Considering that the defence case is that the occurrence had its
genesis in a minor altercation between Jasbir Singh and Surinder Singh, it
became relevant, and indeed incumbent upon the prosecution, to examine
Jasbir Singh, especially when he was cited as a prosecution witness. However,
Jasbir Singh was not examined and no explanation whatsoever has been
offered for such omission. This, too, constitutes another circumstance which
persuades the Court to infer that the true genesis of the occurrence has been
withheld and that the narrative projected before the Court has been tailored to
conform to the prosecution version.
(e) Errors in the Trial Court's Own Appreciation of the Investigation
91. The trial Court discarded DDR No. 17 (Ex. DC) on the reasoning
that it was an attempt by Surinder Singh to create a defence for himself and to
save the remaining accused without discussion and without even any
investigation of the same. If such a test is to be applied, it has to operate
uniformly while appreciating the evidence of both sides. The Court would not
presume that every version put forth by the accused is inherently false merely
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because it supports the defence. Such reasoning, in effect, reflects that an
adverse presumption had already been drawn against the accused merely
because they stood charged with the commission of an offence.
92. The trial Court also appears to have proceeded on an assumption
that there were two distinct occurrences i.e. one as narrated in the FIR (Ex. P-
8) and the other as reflected in DDR No. 17 (Ex. DC). In arriving at such a
conclusion, the trial court completely overlooked the conduct of the
investigating agency in withholding from the Court the existence of DDR No.
17 and the medico-legal report of Surinder Singh, and treated the omission as
a bona fide lapse. Such a conclusion, in the opinion of this Court, is founded
more on conjecture than on the evidence available on record. Significantly, it
was never the defence case that two separate incidents had taken place. On the
contrary, the consistent stand of the appellants throughout has been that there
was only one occurrence, during which both sides sustained injuries.
93. The trial court also ignored the material contradictions in the
testimonies of the prosecution witnesses regarding the place where they had
stayed overnight before reporting the occurrence. Instead of appreciating the
effect of such inconsistencies, the trial court attributed the discrepancy to an
attempt on the part of the Investigating Officer to explain away the delay in
the investigation, although such was not the case set up either by the
prosecution or by the defence. The conclusion recorded by the trial Court is
hence founded upon its own assumptions.
94. The trial court further proceeded to draw an adverse inference
against the appellants merely because blood-stained earth had been recovered,
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without assigning due significance to the place from where such blood-stained
earth had admittedly been lifted. The trial Court specifically recorded that no
blood-stained earth had been collected from the place where the prosecution
alleged the occurrence to have taken place and that the blood-stained earth
had, in fact, been lifted from Point 'B', situated inside the house. It held that
absence of blood at the place of occurrence is of no consequence.
95. Such a finding, in the opinion of this Court, is misplaced. The
determination of the place of occurrence constitutes a vital circumstance in a
criminal trial, especially where rival versions regarding the genesis of the
incident and place of occurrence are put forth. The location from which blood-
stained earth is recovered may have a direct bearing upon the determination
of the actual place of occurrence, the sequence of events, and the question as
to which party was the aggressor. The circumstance, therefore, could not have
been brushed aside as being immaterial, especially when the defence asserted
that the occurrence had taken place at a different location and not at the place
where the prosecution so claims.
96. We are of the opinion that that the investigation carried out into
the incident does not inspire confidence as being fair, complete and objective.
The material brought on record indicates that several crucial aspects, which
had a direct bearing on the rival versions put forth by the parties, were either
left unexplored or were consciously ignored by the Investigating Officer. Such
omissions have materially impaired the ability of the prosecution to establish
its case beyond reasonable doubt.
97. Accordingly, Question No. (i) is answered in the affirmative and
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against the prosecution/State. We are of the opinion that the investigation
suffers from serious infirmities which are not merely procedural irregularities.
The suppression of DDR No. 17 and the medico-legal report of Surinder
Singh, the failure to investigate the plea of alibi raised by Rajbir Singh at the
very inception of the investigation (which is dealt with while considering
Question No. (ii)), the unexplained non-examination of Jasbir Singh, the
failure of the prosecution to establish the recoveries allegedly effected from
the accused, and the attribution of injuries during the inquest proceedings
finding no support from the post-mortem report, cumulatively demonstrate
that the investigation was not comprehensive. The aforesaid deficiencies are
not of such a nature as to be viewed in isolation but taken together, they
disclose a pattern of investigation that failed to explore material circumstances
favourable to the defence and omitted to place before the Court the complete
picture relating to the genesis of the occurrence. Such omissions have
materially affected the credibility of the prosecution case and have rendered
it unsafe to accept the prosecution version without independent and careful
scrutiny.
Issue No. (ii) — Plea of Alibi Raised by Rajbir Singh
98. Since the prosecution attributes the fatal blow on the head of
Dharam Pal to Rajbir Singh, the determination of his presence at the place of
occurrence assumes considerable significance and is taken up next.
99. The evidence on record undisputedly establishes that Rajbir
Singh was serving with the Ministry of Home Affairs and was posted with the
17 Battalion. The documentary evidence produced by the defence, including
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the duty roster, shows that he was deputed for sentry duty at Lok Nayak
Bhawan, New Delhi, from 1:00 p.m. to 7:00 p.m. on 10.01.2004. During
cross-examination, the prosecution suggested that certain entries in the duty
roster had been made in handwriting. However, no suggestion was put to the
official witness that the record was fabricated, manipulated or otherwise
forged. The genuineness of the official record, thus, remained unchallenged.
The trial court also accepted the defence evidence to the extent that Rajbir
Singh had, in fact, remained on official duty at Lok Nayak Bhawan, New
Delhi, from 1:00 p.m. till 7:00 p.m. on 10.01.2004.
100. The real question, however, is not whether Rajbir Singh remained
on duty till 7:00 p.m., but whether, after completion of his official duty, it was
reasonably possible for him to travel from New Delhi to Village Kharanti and
be present at the place of occurrence at about 10:30 p.m. The trial Court placed
much reliance upon the testimonies of PW-4 Bhoop Singh, PW-5 Ashok and
PW-10 Mangal Singh, all of whom attribute the fatal blow to Rajbir Singh.
However, the Court did not undertake any detailed examination of the
practical feasibility of Rajbir Singh reaching the place of occurrence within
the available time. The judgment does not advert to the implications arising
from the admitted fact that Rajbir Singh remained on official duty till 7:00
p.m. at New Delhi, nor does it analyse whether the intervening period of
approximately three and a half hours was sufficient for him to cover a distance
of nearly 120 kilometres and reach Village Kharanti by about 10:30 p.m.
101. The plea of alibi could not be accepted or rejected in isolation
merely on the basis of the oral testimony of the prosecution witnesses or the
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defence witnesses. It necessarily requires a holistic appreciation of all the
attendant circumstances. Once the prosecution itself does not dispute that
Rajbir Singh remained on official duty till 7:00 p.m. on the date of occurrence,
it was incumbent upon the trial Court to examine whether his presence at the
place of occurrence at the relevant time was reasonably probable in the
ordinary course of human conduct and as per the evidence available on record.
102. The law governing a plea of alibi is equally well settled. A plea
of alibi is not one of the general exceptions embodied in the Indian Penal
Code, 1860. It is a rule of evidence recognised under Section 11 of the Indian
Evidence Act, 1872, and is founded on the principle that the presence of the
accused at another place, if established, renders his presence at the place of
occurrence highly improbable or impossible. Unlike the burden cast upon an
accused while invoking a general exception under the Indian Penal Code, the
burden resting upon an accused setting up a plea of alibi is not to establish the
same beyond reasonable doubt. It is sufficient if the accused is able to place
before the Court such material as probabilises his absence from the place of
occurrence and creates a reasonable doubt regarding the prosecution
allegation of his presence. The standard applicable is that of preponderance of
probabilities and not proof beyond reasonable doubt. Once the accused
succeeds in probabilising the plea of alibi to the satisfaction of the Court, the
evidentiary burden shifts back to the prosecution. Since the legal burden of
proving the guilt of the accused never departs from the prosecution, it
continues to remain under an obligation to establish that notwithstanding the
circumstances relied upon by the accused, he was in fact present at the place
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of occurrence and participated in the commission of the offence. The
prosecution must, thus, dispel the doubt arising from the plea of alibi and
exclude the reasonable possibility of the accused having been elsewhere at the
relevant time.
103. The essential aspects of the present case which remain
unanswered and unexplained are as under: -
(a) Once it stands accepted that Rajbir Singh was an employee of the
Ministry of Home Affairs and was on official duty on the relevant
date, it became incumbent upon the Investigating Officer to
investigate his location and whereabouts. Such an obligation
assumes greater significance when a specific plea, that the accused
was not present in the village and was instead on duty at New
Delhi, was raised at the very inception of the investigation and was
within the knowledge of the Investigating Officer. The
Investigating Officer himself admitted that he had come to know
that Rajbir Singh was employed with the Ministry of Home Affairs
at the relevant time. Despite the same, the prosecution has not led
any evidence to establish that any investigation whatsoever was
conducted into the claim made by appellant-accused Rajbir Singh.
It is significant to note that the entry pertaining to Rajbir's sentry
duty appears in the middle of the duty roster and does not reflect
any interpolation, overwriting or interlineation. The Supervisor as
well as the Commandant of the 17 Battalion specifically deposed
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regarding the presence of Rajbir Singh on sentry duty on
10.01.2004.
(b) The prosecution case is that Rajbir Singh was informed about the
earlier incident between Surinder Singh and Jasbir Singh and that,
upon receiving such information, he immediately proceeded
towards his village. However, there is no explanation whatsoever
as to who informed Rajbir Singh of the said incident or by what
mode such information was conveyed to him. There is nothing on
record to suggest that either the appellant-accused or Rajbir Singh
had access to any telephone facility at the relevant time. Neither
any landline number nor any mobile number has been brought on
record. The said aspect is crucial considering that the occurrence
took place in the year 2004, when the use of mobile phones was
still at a nascent stage and had not permeated the rural hinterland
in the manner it has today. The use of mobile telephony was
limited, and communication ordinarily took place through landline
or STD facilities. There is no evidence to show that the appellants
had any such telecommunication facility either at their residence
or elsewhere in the village from where Rajbir Singh could have
been informed. Likewise, no telephone numbers have been
disclosed either at the place where Rajbir was posted or at any
other place from where such information could have been
transmitted. In such circumstances, the manner in which Rajbir
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Singh allegedly received information regarding the incident
remains wholly unexplained.
(c) The complainant has raised an argument that the incident between
Jasbir and Surinder Singh had taken place at around 6:00 P.M.
however, there is no evidence to establish the same.
(d) Apart therefrom, DW-3 Naseeb Singh, who was residing with
Rajbir Singh at the Government-allotted accommodation at
Mandir Marg, New Delhi, specifically deposed that certain police
officials had visited the said accommodation to enquire about the
whereabouts of Rajbir Singh and that he had informed them that
Rajbir Singh had remained at the allotted quarter throughout the
night. Despite such evidence, the Investigating Officer did not
conduct any inquiry into the said aspect. To the contrary, the
investigation remained completely dismissive of every claim
raised by Rajbir Singh in support of his plea of alibi.
(e) The prosecution has also failed to explain the mode of transport
allegedly used by Rajbir Singh to reach the village. It needs no
elaboration that traffic conditions in Delhi in the year 2004 were
far from ideal. Assuming that Rajbir Singh had left immediately
after the completion of his duty at 7:00 p.m. and had travelled by
public transport, it would ordinarily have taken him about one and
a half hours merely to reach the outskirts of Delhi. Whether the
route commenced from the Inter-State Bus Terminus, Kashmere
Gate, or through Ring Road via Wazirabad, Burari, Karnal Bye-
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pass, Rohini, Peeragarhi Chowk and thereafter through the old
Rohtak Road, the journey necessarily involved passing through
heavily congested areas such as Nangloi and J.J. Colony. Public
transport in such areas was often delayed on account of traffic
congestion. The travel time from the outskirts of Delhi to Rohtak
would, in the ordinary course, not have been less than three hours
and the journey from Rohtak to Village Kharanti would have
required an additional 45 minutes. These are the contemporaneous
realities and a Court of law does not remain oblivious to the social
and situational realities. Disregarding the same merely on
technicalities may lead to a travesty of justice since people in
contemporaneous time expect awareness by the Court of the same
and do not feel the need to prove a fact well known. Two decades
later, even the appellate Court may be expected to keep note of the
contemporary reality and social circumstances.
(f) There is also no explanation as to how Rajbir Singh travelled from
Rohtak to Village Kharanti after reaching Rohtak. The only
inference that flows is that a regular transport was available
between Rohtak and the village. However, the said assertion
remains wholly uncorroborated. Merely because transport may
have been available from the village to the city during daytime
would not necessarily imply that similar transport facilities were
available from the city to the village at late hours of the night. It is
not even the prosecution case that Rajbir Singh had any private
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vehicle or personal mode of transport at his disposal, at Rohtak.
Public transport to rural areas ordinarily remains limited during
late hours unless the village is situated on a State Highway or
National Highway. The burden lay upon the prosecution to
establish the means of connectivity and the feasibility of such
travel. However, no evidence has been led in that regard.
(g) While the complainant asserts that the earlier altercation had taken
place at about 6:00 p.m., the evidence on record does not
corroborate such a time. The earliest version of the occurrence is
reflected in DDR No. 17 recorded at 2:05 a.m. during the
intervening night of 10/11.01.2004, wherein Surinder Singh stated
that the earlier incident had taken place at about 7:00 p.m. In the
suggestions put to the prosecution witnesses as well as in the
defence taken in the statements recorded under Section 313
Cr.P.C., the occurrence between Jasbir Singh and Surinder Singh
was stated to have taken place at about 8:00 p.m. Thus, even
according to the defence, the first incident could have taken place
sometime after 7:00 p.m. It was only thereafter, that an occasion
would have arisen for the family members of Rajbir to inform him
at Delhi about the incident in question. Consequently, there was
no occasion for Rajbir Singh to have left Delhi before 7:00 p.m.
Since he admittedly remained on sentry duty till 7:00 p.m., and
there is no evidence regarding any means by which he could have
been contacted while on his way from his place of duty to his
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residence. Ordinarily, such a circumstance may not assume much
significance, however, in the peculiar facts of the present case,
where the presence of Rajbir Singh at the place of occurrence
depends entirely upon a narrow margin of time, the said aspect
assumes considerable importance. The burden to explain the same
lay upon the prosecution, especially when the plea of alibi and
absence from the place of occurrence was taken at the very
inception of the investigation and was not introduced as an
afterthought during the course of trial.
104. The prosecution, however, remains conspicuously silent on these
aspects and relies solely upon the testimonies of the injured eyewitnesses to
contend that Rajbir Singh was present at the place of occurrence and had
inflicted the fatal injury. While it is true that PW-4 Bhoop Singh, PW-5 Ashok
and PW-10 Mangal Singh have consistently attributed the fatal blow to Rajbir
Singh. However, all the three witnesses are brothers and hence interested
witnesses. Even though their evidence is not liable to be discarded on that
ground alone, it nonetheless requires careful and objective scrutiny, especially
when weighed against the documentary evidence relied upon by the defence.
105. The matter does not end there. The trial court further proceeded
to record a finding that, after sustaining injuries, Surinder Singh might have
informed Rajbir Singh and the other members of his family and thereafter got
DDR No. 17 (Ex. DC) recorded so as to create evidence in their favour. Such
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a conclusion is plainly conjectural. There is no evidence whatsoever on record
to support such an inference.
106. A criminal Court is required to record its conclusions on the basis
of proved facts and legitimate inferences flowing therefrom, and not upon
possibilities, surmises or hypotheses unsupported by evidence. Findings
affecting the liberty of an accused could not have been founded upon what
"might have happened", in the absence of any material substantiating such an
assumption. The circumstances emerging from the evidence, coupled with the
conspicuous gaps in the prosecution case, also fail to establish that Rajbir
Singh was informed of the earlier incident in time or that he had both the
occasion as well as the opportunity to reach the place of occurrence at the time
alleged by the prosecution.
107. It also cannot be overlooked that all the four sons of Balwan
Singh have been arrayed as accused and that Rajbir Singh was admittedly the
only member of the family holding a Government job, thereby providing
financial stability to the family, while the remaining members were primarily
engaged in agriculture. Though such a circumstance by itself is not
determinative of guilt or innocence, experience reflects that, in certain
situations, a person who constitutes the principal earning member of a family
may be assigned a more prominent role in the occurrence. Such social
realities, though incapable of precise proof, could not be ignored altogether
while objectively appreciating the evidence on record.
108. Reliance in this regard can be placed on the judgment of the
Hon'ble Supreme Court in Dharam Singh v. State of Punjab, reported as
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1983 (Supp.) SCC 52. In the said case, the deceased as well as the principal
prosecution witnesses belonged to the same village. Specific attributions had
been consistently levelled by the three prosecution witnesses against all the
accused persons, as is the case in the present matter. The prosecution relied
principally upon the testimony of Jai Singh, an eye-witness who was also an
injured witness, to establish the presence and participation of the accused
persons. The accused, in defence, raised the plea of alibi. The occurrence in
the said case was alleged to have taken place at about 7:30 P.M., whereas the
accused asserted that he had attended his office on the said date till 5:00 p.m.,
which assertion stood corroborated by the evidence on record. The distance
between the office of one of the accused and the place of occurrence was about
10 miles, whereas the distance in respect of the other accused was about 40
miles. The trial Court returned a finding of conviction on the premise that it
was possible for the accused to have been present at the place of occurrence,
participated in the crime and thereafter returned to his office. The Hon'ble
Supreme Court, however, set aside the judgment of the High Court and
accepted the plea of alibi by extending the benefit of doubt. It was held that
once the accused had established that he attended his office till 5:00 p.m., his
presence at the place of occurrence at about 7:00 p.m. became doubtful,
notwithstanding the fact that the distance between his office and the place of
occurrence was only 40 miles. The evidence of the eye-witnesses was,
consequently, held to be unreliable. Significantly, the Hon'ble Supreme Court
also commented upon the specific and pin-pointed attribution of injuries by
all the eye-witnesses itself as a suspicious circumstance. It was observed that
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such careful distribution of overt acts amongst the respective accused could
ordinarily have been made only after the complainant and the witnesses had
come to know of the injuries sustained by the victims. The Court held that
such precision regarding the seat of injury inflicted by each accused gave rise
to a suspicious circumstance and led to an inference that the version contained
in the FIR and the prosecution evidence had been recorded after considerable
deliberation and reflection.
109. Although, there could be no steadfast rule that a consistent
deposition should be viewed with suspicion, however, the same is to be seen
on a case to case basis and upon an objective assessment of the evidence and
the circumstances brought on record. The facts of the present case are quite
similar to the above case. While the time gap is similar, the distance is more
than twice the distance in the case of Dharam Singh (supra). The pin pointed
precision attribution, in conformity with the observations of the Investigating
officer in inquest, coupled with non-existence of corresponding injuries and
raise significant question about the probability of injuries being caused with
the weapons recovered, leave much room for the prosecution version to be
accepted at its face value.
(a) Non-appreciation of the Defence Evidence — DW-3 Naseeb Singh
110. It further transpires that the trial Court has recorded its
conclusions on the basis of assumptions rather than on an objective
appreciation of the evidence available on record. The testimony of DW-3
Naseeb Singh came to be discarded primarily on the ground that there was no
documentary evidence to establish that he was sharing the Government-
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allotted accommodation with Rajbir Singh. Such a circumstance, by itself,
could not have constituted a ground for rejecting his testimony. The absence
of documentary proof regarding allotment of residence is not determinative of
the truthfulness of a witness, especially when the fact sought to be established
pertains to a matter of ordinary human conduct. It is not uncommon for
colleagues or acquaintances to share Government accommodation, especially
where the lawful allottee is residing alone. Unless the witness is effectively
discredited in cross-examination or his version is shown to be inherently
improbable or inconsistent with the surrounding circumstances, the mere
absence of documentary corroboration could not justify discarding his
testimony.
111. The approach adopted by the trial Court also overlooks the settled
principles governing the appreciation of defence evidence. It is now well
established that the evidence adduced by the defence does not occupy an
inferior pedestal vis-à-vis the evidence led by the prosecution. A defence
witness enters the witness box under the same sanctity of oath and is equally
subject to the test of cross-examination. The law does not recognise any
distinction in the evidentiary value of a witness merely because he has been
examined by the prosecution or by the defence. The source from which the
evidence emanates is immaterial. What is material is its credibility, reliability
and its consistency with the probabilities emerging from the record.
112. It is equally well settled that there exists no rule of law or
prudence requiring the evidence of a defence witness to be viewed with
suspicion merely because he supports the case of the accused. Such an
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approach would be fundamentally inconsistent with the presumption of
innocence that operates in favour of every accused and with the cardinal
principle that the burden of proving guilt beyond reasonable doubt rests
throughout upon the prosecution. The defence is entitled to rebut the
prosecution case either by relying upon the material elicited during the cross-
examination of prosecution witnesses or by leading independent evidence in
support of its plea. Where such evidence creates a reasonable doubt or
probabilises the defence set up by the accused, the Court is duty-bound to
accord due weight to it.
113. The Court, while appreciating defence evidence, is not required
to search for reasons to reject it merely because it emanates from the defence.
Equally, the testimony of prosecution witnesses does not acquire any
additional sanctity merely because they have been examined by the
prosecution. Both sets of evidence have to be tested by applying the same
judicial standards, namely, whether the witness is trustworthy, whether the
testimony inspires confidence, whether it is consistent with the surrounding
circumstances, and whether it withstands the scrutiny of cross-examination.
Any approach that accords a higher evidentiary value to prosecution witnesses
or subjects defence witnesses to a stricter standard of scrutiny would be
contrary to the settled principles governing criminal trials.
114. In the present case, the trial court appears to have rejected the
testimony of DW-3 Naseeb Singh not because it was inherently unreliable or
stood demolished in cross-examination, but because it lacked documentary
corroboration regarding his residence with Rajbir Singh. Such reasoning, in
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the opinion of this Court, proceeds more on conjecture than on settled
principles of appreciation of evidence. The testimony of DW-3 ought to have
been evaluated on its own intrinsic merits and in conjunction with the
remaining evidence on record.
115. In the aforesaid circumstances, this Court is of the opinion that
the preponderance of probabilities renders it highly probable, if not
impossible, that Rajbir Singh was not present at the place of occurrence at the
relevant time. The prosecution has failed to dispel the doubt arising from the
plea of alibi. Except for the testimonies of the interested witnesses, there is no
independent or corroborative evidence establishing his presence at the place
of occurrence. The alleged recovery of the weapon of offence having itself
remained unproved, the specific attribution made against Rajbir Singh also
remains unsubstantiated. Consequently, the prosecution has failed to establish
his participation in the occurrence beyond reasonable doubt.
116. Accordingly, Question No. (ii) is answered in favour of appellant
Rajbir Singh and against the prosecution. This Court is satisfied that the plea
of alibi raised by Rajbir Singh stands sufficiently probabilised by the evidence
led in defence. The prosecution has failed to conduct any meaningful
investigation into the said plea despite being aware of it from the very
inception of the investigation. It has also failed to establish, by any evidence,
that Rajbir Singh could have reached the place of occurrence at the relevant
time after completing his official duty at New Delhi. The material brought on
record by the defence creates a reasonable doubt regarding his presence at the
scene of crime, and the prosecution has been unable to dispel the said doubt.
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Hence, the prosecution has failed to establish the presence and participation
of Rajbir Singh in the occurrence beyond reasonable doubt. He is,
consequently, entitled to the benefit of doubt.
Issue No. (iii) — Presence and Specific Role of Each Appellant
117. We now examine whether the prosecution has established the
presence and specific role of each of the remaining appellants beyond
reasonable doubt.
118. The suspicion regarding the reliability of the prosecution version
is further strengthened by the fact that, although all the appellant-accused are
alleged to have been armed with weapons such as jellies, gandasis, lathis and
mussals (tassals), the injuries found on the persons of PW-5 Ashok Kumar
and PW-10 Mangal Singh do not appear to have been caused by the use of
such weapons. It is difficult to comprehend that when a group of eight persons
is allegedly armed with weapons of such nature, not a single injury could be
attributed to the use of a jailly or a gandasi. There are no scratch marks or
punctured wound that could be associated with the use of a jailly, nor is there
any incised wound that could reasonably be attributed to the use of a gandasi.
Even though it may be possible that the injuries were caused by the blunt side
or the handle of a jailly or a gandasi, however, despite the detailed and specific
attribution of overt acts by the prosecution witnesses, none of them has
specified the side of the weapon with which the injuries were allegedly
inflicted. An argument has also been advanced that the abrasions could have
been caused by the blunt side or the handle of the jailly or gandasi. Such an
argument, however, does not satisfactorily explain the nature of the injuries.
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Ordinarily, if an injury is caused by the handle of a weapon such as a jailly or
a gandasi, the abrasion would exhibit distinct corresponding physical
characteristics including ecchymosis. It is also not expected that the use of
such a weapon in an assault would result only in an abrasion. Some
corresponding injury, in the nature of a contusion, incision or laceration,
would ordinarily accompany such an abrasion. Apart therefrom, the
dimensions of the injuries themselves constitute another circumstance giving
rise to suspicion. The dimensions are minuscule and, prima facie, do not
correspond with the dimensions of the handle ordinarily used for holding a
jailly or a gandasi.
119. Interestingly, the defence specifically put a suggestion to the
doctor that the injuries in question could have been caused as a result of a fall
on a hard surface, and the doctor accepted such a possibility. However, no
corresponding effort was made by the prosecution to elicit from the doctor
whether the injuries sustained by the prosecution witnesses/injured eye-
witnesses could have been caused by the weapons allegedly recovered from
the accused persons. The only weapon shown to the doctor was the
mussal/pestle allegedly recovered from Rajbir Singh, and that too only in
relation to Injury No. 1 on the scalp of the deceased Dharampal. Thus, while
the prosecution itself recognised the necessity of obtaining medical opinion
regarding the compatibility of the injuries with the alleged weapon, as is
evident from the aforesaid deposition, it failed to discharge a similar burden
in relation to the injuries sustained by the remaining injured eye-witnesses vis-
à-vis the other weapons allegedly recovered from the accused persons. The
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omission on the part of the prosecution to seek such medical opinion remains
wholly unexplained. Such reticence on the part of the prosecution becomes
significant when the nature of the injuries does not, prima facie, inspire
confidence that they were caused by the weapons attributed to the respective
accused persons.
120. It is evident that, in the present case, specific injuries have been
attributed to as many as eight accused persons. The prosecution relies upon a
total of nine injuries sustained by the three injured witnesses and four injuries
found on the person of the deceased Dharampal, including one lacerated
wound on the scalp. A closer examination of the nine injuries sustained by the
prosecution witnesses reveals that four of them are merely in the nature of
tenderness and swelling, which, according to the doctor, could have been
caused by a fall. Three injuries are abrasions measuring 0.5 cm, 1 × 0.5 cm,
and 0.5 cm, respectively. These abrasions are alleged to have been caused by
the use of a jailly and a lathi. To a person of ordinary prudence, abrasions of
such dimensions do not ordinarily appear to be consistent with injuries caused
by the use of weapons such as a gandasi, a lathi or a jailly. Apart therefrom,
there are only two lacerated wounds, namely, one measuring 0.5 cm on the
little finger of the right hand of Ashok Kumar and another measuring 1 × 0.5
cm on the left side of the forehead. Both these injuries are alleged to have been
caused by a gandasi and a jailly. A gandasi is a sharp-edged weapon and,
ordinarily, its use would result in an incised wound unless the injury is
inflicted by the blunt side or the handle of the weapon. However, having
regard to the location as well as the dimensions of the aforesaid injuries, the
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prosecution version regarding the manner in which the injuries were sustained
appears to be doubtful. Even though presence of some of the accused at the
spot is established, however, their roles cannot be held to have been proved
beyond reasonable doubt, for causing injuries with a common intention to
cause death. Our findings about them are as under: -
121. Question No. (iii) is, accordingly, answered as follows. The
prosecution has failed to establish the presence and specific role of Rajbir
Singh, for the reasons recorded while answering Question No. (ii), as also of
Krishan @ Randhir. The injuries attributed to Ajmer Singh and Suresh are not
corroborated by the medical evidence. Insofar as Krishan @ Balwan, Karan
Singh and Dilbagh Singh are concerned, their presence at the place of
occurrence and their individual roles stand established only to the extent of
the simple injuries specifically attributable to each of them. However, the
prosecution has failed to establish any common intention or common object
so as to render them vicariously liable for the fatal injury sustained by
Dharampal or for the acts attributed to the other accused. Their criminal
liability is, therefore, confined to their respective individual acts alone. A
detailed discussion about the same is in the later part of the judgment.
Issue No. (iv) — Right of Private Defence and the Nature of the Offence
122. We now proceed to examine Question No. (iv) i.e. whether the
appellants, and particularly Surinder Singh, are entitled to the benefit of the
right of private defence. The right of private defence is a valuable statutory
right recognised under the Indian Penal Code. At the same time, it is not an
unfettered or unrestricted right. The extent of such right is circumscribed by
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the conditions prescribed in Sections 96 to 106 IPC. Insofar as the right of
private defence of the body is concerned, Section 100 IPC permits the causing
of death only in those situations where the assault gives rise to a reasonable
apprehension of death or grievous hurt, or where the case otherwise falls
within any of the contingencies specifically enumerated therein.
123. It is equally well settled that the right of private defence is
essentially preventive and protective in character. It cannot be invoked as a
pretext for retaliation, retribution or punishment once the danger has ceased.
The burden of establishing circumstances bringing the case within any of the
general exceptions is governed by Section 105 of the Indian Evidence Act,
1872. The accused is not required to establish such a plea beyond reasonable
doubt. It is sufficient if the material brought on record, whether through the
evidence led by the defence or through the evidence adduced by the
prosecution itself, probabilises the existence of circumstances entitling the
accused to the benefit of the exception. Once such circumstances emerge from
the record, the Court is required to examine whether the prosecution has
succeeded in excluding the applicability of the exception.
124. In the present case, the material discussed while answering
Question No. (i) undoubtedly establishes that the prosecution has suppressed
the true genesis of the occurrence and that Surinder Singh had also sustained
injuries which remained wholly unexplained. The evidence further
probabilises that the occurrence was not one-sided and that both parties
participated in the altercation. These circumstances certainly cast doubt upon
the prosecution version and lend support to the defence case that the
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occurrence arose out of a sudden confrontation. However, the existence of a
sudden quarrel or a free fight is not, by itself, sufficient to attract the right of
private defence extending to the causing of death.
125. The evidence on record however does not establish that, at the
stage when the fatal injury was inflicted, Surinder Singh or any other appellant
was confronted with such an imminent threat as would reasonably give rise to
an apprehension of death or grievous hurt so as to justify causing the death of
Dharampal. It is significant that there is no evidence to show that Dharampal
himself was armed with any weapon. Even DDR No. 17, which constitutes
the earliest version put forth by the defence, does not allege that Dharampal
had assaulted Surinder Singh or had threatened him with death or grievous
hurt. The material on record, therefore, falls short of satisfying the statutory
requirements of Section 100 IPC.
126. We are, therefore, unable to hold that the appellants, and
particularly Surinder Singh, have succeeded in bringing their case within the
ambit of the right of private defence extending to the causing of death. At the
same time, the evidence unmistakably suggests that the occurrence was not a
pre-planned assault but arose out of a sudden altercation culminating in a free
fight between the rival factions. The legal consequences of such a finding are
to be examined not on the touchstone of the right of private defence, but in
the context of Exception 4 to Section 300 IPC.
127. The trial Court proceeded to record a finding of conviction
against all the accused primarily on the premise that the injuries sustained by
the complainant party could not have been inflicted by a single individual. In
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doing so, however, the trial Court failed to examine the nature, dimensions
and characteristics of the injuries in the peculiar facts of the present case. It
overlooked that, numerically, the injuries may have been several, but in
substance a majority of them were merely in the nature of swelling, tenderness
or minor abrasions. Such injuries are equally capable of being sustained
during grappling, scuffling or the use of force by rival parties in the course of
a physical altercation. This possibility assumes significance in the present
case, especially in view of the admitted position that Surinder Singh was a
wrestler and would ordinarily be robust and expected to possess considerable
physical strength and stamina.
128. The trial court also proceeded to record a finding of conviction
principally on the basis that the deceased had sustained four injuries. In doing
so, however, it failed to notice the specific opinion of the medical expert that,
except for Injury No. 1, all the remaining injuries could have been sustained
as a result of a fall following the infliction of the first injury. The medical
evidence, therefore, required a more careful appreciation before being
reconciled with the ocular version. The omission to consider this material
aspect has a direct bearing upon the appreciation of the prosecution case.
129. In the aforesaid circumstances, the question that falls for our
consideration is the manner and circumstances in which Dharampal sustained
the fatal injury. Having regard to the surrounding circumstances, the evidence
on record, and the nature of the injuries sustained by the remaining
prosecution witnesses, the occurrence, at best, appears to be one arising out
of a sudden flare-up resulting in a free fight between the rival parties,
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constituting one continuous transaction or an immediate back to back
transaction.
130. It is not in dispute that PW-4 Bhoop Singh, PW-5 Ashok Kumar
and PW-10 Mangal Singh sustained only simple injuries, which are in the
nature of tenderness, abrasions and minor lacerations. The fatal injury on the
person of Dharampal, namely the lacerated wound on the scalp, is also capable
of having been caused by a lathi. The defence has consistently maintained that
the said injury was inflicted by Surinder Singh during the course of the
occurrence.
131. The respondent-State has laid considerable emphasis on the
circumstance that Surinder Singh assumed responsibility for causing the fatal
injury only with a view to shield the remaining members of his family. Even
though such a possibility cannot altogether be ruled out, equally, however, is
the converse possibility that the version put forth by Surinder Singh was
truthful and deserves due consideration. Criminal adjudication requires the
Court to examine all reasonably probable hypotheses emerging from the
evidence and not merely those favourable to the prosecution.
132. In this regard, the surrounding circumstances assume
significance. Surinder Singh was about 19 years of age at the relevant time
and was the youngest amongst the brothers, whereas Rajbir Singh and Ajmer
Singh were about 31 and 32 years of age respectively, and Krishan, son of
Balwan Singh, was also stated to be above 30 years of age. All the family
members were engaged in agriculture, except Rajbir Singh, who was
employed in Government service. No specific reason has either been
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suggested or established as to why Surinder Singh, a young man with his
entire future before him, would falsely assume responsibility for causing the
fatal injury merely to exonerate the remaining accused. In the absence of any
material indicating such a motive, the explanation furnished by Surinder
Singh could not have been discarded solely on the assumption that it was
intended to protect the other members of his family. It was required to be
examined in the light of the surrounding circumstances and the evidence
available on record.
133. In the backdrop of the discussion as above, Section 300 IPC
needs to be examined. The same is extracted as under: -
“300 Murder
Except in the cases hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is done with the
intention of causing death, or—
2ndly.—If it is done with the intention of causing such bodily
injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused, or—
3rdly.—If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or—
4thly.—If the person committing the act knows that it is so
imminently dangerous that it must, in all probability, cause
death, or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
xxx xxx xxx
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Exception 1.—When culpable homicide is not murder.—
Culpable homicide is not murder if the offender, whilst deprived
of the power of self-control by grave and sudden provocation,
causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:—
First.—That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing harm
to any person.
Secondly.—That the provocation is not given by anything done in
obedience to the law, or by a public servant in the lawful exercise
of the powers of such public servant.
Thirdly.—That the provocation is not given by anything done in
the lawful exercise of the right of private defence.
Explanation.—Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a
question of fact.
Exception 2.—Culpable homicide is not murder if the offender in
the exercise in good faith of the right of private defence of person
or property, exceeds the power given to him by law and causes
the death of the person against whom he is exercising such right
of defence without premeditation, and without any intention of
doing more harm than is necessary for the purpose of such
defence.
xxx xxx xxx
Exception 3.—Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting for the
advancement of public justice, exceeds the powers given to him
by law, and causes death by doing an act which he, in good faith,
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believes to be lawful and necessary for the due discharge of his
duty as such public servant and without ill-will towards the
person whose death is caused.
Exception 4.—Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion
upon a sudden quarrel and without the offender's having taken
undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers
the provocation or commits the first assault.
Exception 5.—Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen years,
suffers death or takes the risk of death with his own consent.”
134. A culpable homicide would not be a murder, if it is committed
without any pre-meditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having taken undue advantage or
acted in a cruel manner. Explanation thereto further clarifies that it is
immaterial in such cases as to who offered the provocation or committed the
first assault.
135. There being only one substantive injury on deceased Dharampal
and other injuries being possible as a result of fall, it seems highly probable
that the account given by Surinder Singh was genuine and he gave the injury
to the deceased, which became fatal due to his advanced age. His sufferance
of injuries, not explained by prosecution, corroborates the same. It seems that
only in the ensuing course, other accused came to the spot and a
scuffle/grappling took place, causing resultant injuries to other witnesses.
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136. In the present case, the evidence, as appreciated hereinabove,
does not establish a premeditated attack by the appellants. Rather, the
circumstances probabilise that the occurrence arose out of a sudden altercation
between the parties, which escalated into a free fight forming part of one
continuous transaction. The injuries sustained by both sides, the suppression
of the true genesis of the occurrence, the unexplained injuries on Surinder
Singh, the failure of the prosecution to present the complete sequence of
events, and the absence of any reliable evidence of pre-concert or
premeditation, all probabilise that the occurrence was a spontaneous
consequence of a sudden flare-up rather than a planned assault.
137. Once such circumstances emerge from the evidence, the Court is
required to examine the culpability of the person responsible for the fatal
injury in the light of the exceptions to Section 300 IPC. Where death occurs
during the course of a sudden fight, without premeditation, in the heat of
passion, and the assailant has not taken undue advantage or acted in a cruel or
unusual manner, the law does not treat such culpable homicide as murder. The
liability of the offender however does not stand obliterated; it merely stands
altered in its legal character. The offence would, in such circumstances, be
punishable under Section 304 IPC, depending upon the intention or
knowledge attributable to the offender. Applying the aforesaid principles to
the facts of the present case, we are of the opinion that the occurrence appears
to have been the result of a sudden free fight constituting one continuous
transaction.
138. It is equally well settled that the concept of a free fight stands on
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an altogether different footing from the right of private defence. In a free fight,
both rival groups voluntarily engage in the confrontation and each side
assumes the role of an aggressor. The occurrence is not initiated by one side
alone while the other merely defends itself. Consequently, neither party can
legitimately invoke the right of private defence. Where both sides willingly
participate in the affray, the plea of private defence ordinarily becomes
unavailable.
139. It is also a settled principle that, in a case of a free fight, criminal
liability has to be determined with reference to the specific overt act
committed by each accused. Since the occurrence does not arise out of the
prosecution of a common intent or object shared by an unlawful assembly, the
principle of constructive or vicarious liability embodied in Section 149 IPC
or Section 34 IPC, ordinarily has no application. Every participant is
answerable only for the act individually proved against him, and his liability
has to be assessed on the basis of the injury caused by him and the attendant
circumstances established by the evidence.
140. We also find that the evidence on record does not establish the
existence of an intention to commit murder. The deceased Dharampal
sustained only one injury on a vital part of the body i.e. the scalp, and there is
no material to suggest that the assault was accompanied by exceptional
brutality or that repeated blows were inflicted upon the deceased or the other
injured persons. The nature of the occurrence, as already noticed, probabilises
that it arose out of a sudden altercation culminating in a free fight, rather than
a premeditated attack. In such circumstances, the requisite intention
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contemplated under Section 300 IPC does not emerge from a meaningful
appreciation of the evidence.
141. At the same time, the circumstances do not absolve Surinder
Singh of criminal liability. The evidence establishes that the fatal injury was
inflicted by him. It has also come through his own admissions that Surinder
Singh was a wrestler and was regularly engaged in wrestling practice. A
person possessing such physical strength and training would reasonably be
attributed with the knowledge of the likely consequences of striking a forceful
blow on the scalp of an elderly person. The deceased was about 70 years of
age and a blow on such a vital part of the body was reasonably likely to cause
death or such bodily injury as was likely to result in death.
142. In the facts and circumstances of the present case, therefore,
while the intention to cause death or such bodily injury as would ordinarily
cause death is not established, however, the knowledge attributable to
Surinder Singh brings the case within the ambit of Section 304 Part II IPC. A
person of ordinary prudence would be deemed possessing the knowledge that
a forceful blow on an aged person can cause injury likely to cause death,
though without the intention of causing death or such bodily injury as is
sufficient in the ordinary course of nature to cause death.
143. Accordingly, Question No. (iv) is answered by holding that the
appellants are not entitled to the benefit of the right of private defence. The
evidence on record does not establish the existence of circumstances giving
rise to a reasonable apprehension of death or grievous hurt so as to attract the
protection of Section 100 IPC. The statutory requirements for extending the
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right of private defence to the causing of death are, therefore, not satisfied.
144. At the same time, the very same body of evidence also establishes
that the occurrence was neither pre-planned nor premeditated, but arose out
of a sudden altercation which escalated into a free fight between the rival
factions. The prosecution has failed to establish that Surinder Singh acted
pursuant to any prior design or with an intention of executing a planned
assault. The evidence further shows that only a single fatal injury was inflicted
upon Dharampal during the occurrence and that neither side can be said to
have taken undue advantage over the other or acted in a cruel or unusual
manner. The cumulative effect of these circumstances brings the case squarely
within the ambit of Exception 4 to Section 300 IPC.
145. Consequently, while the plea of private defence is rejected,
Surinder Singh is held entitled to the benefit of Exception 4 to Section 300
IPC, with the result that the offence committed by him does not amount to
murder punishable under Section 302 IPC but falls within the category of
culpable homicide not amounting to murder.
Issue No. (v) — Whether the Findings of the Trial Court Warrant
Interference
146. Applying the findings recorded under Issues No.(i) to (iv) above
to each appellant/respondent individually:
(a) Rajbir Singh - Insofar as appellant Rajbir Singh is concerned, for the
reasons recorded hereinabove, this Court finds that the plea of alibi raised by
him stands sufficiently probabilised and the prosecution cannot be assumed to
have established his presence at the place of occurrence, beyond reasonable
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doubt. The evidence led by the prosecution is insufficient to dispel the doubt
arising from the defence version, and even the alleged recovery of the weapon
attributed to him has itself remained unproved. Consequently, we are of the
view that the prosecution has failed to establish the charge against Rajbir
Singh beyond reasonable doubt. The judgment of conviction and the order of
sentence passed against Rajbir Singh for the offence punishable under Section
302 IPC are, accordingly, set aside, and he is acquitted of the said charge by
extending to him the benefit of doubt.
(b) Ajmer Singh and Suresh (CRR-608-2005)
147. While appreciating the evidence on record, we find that the
injuries specifically attributed to accused Ajmer Singh and Suresh do not find
corroboration from the post-mortem report. The very injuries alleged to have
been inflicted by them are absent in the medical evidence. The prosecution
has failed to reconcile the ocular version with the medical evidence in this
regard.
148. The prosecution witnesses have attributed jailly blow to deceased
on his left arm, Suresh is attributed a second jailly blow on the left hand which
landed on the back side of the fingers of the deceased. Notwithstanding that
recovery of weapons has not been proved, PW.11 Dr. Giri Raj who conducted
the post-mortem of deceased Dharam Pal did not find any corresponding
injury. Rather, he specifically states that Injury No.1, which is a lacerated
wound, could be caused with a mussal or even by lathi. The other injuries
could be due to a fall. The response reads thus: -
“Injury No.1 on the person of the deceased could be caused by a
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lathi. Injuries No.2 to 5 on the person of the deceased were
possible by a fall after receipt of injury no.1, if injured falls face
downward.”
149. The allegations are thus not proved by medical evidence. The
acquittal of Ajmer and Suresh thus cannot be said to be misplaced, illegal or
improper. Their acquittal is thus affirmed.
(c) Krishan son of Balwan, Karan Singh and Dilbagh Singh –
150. Insofar as accused Krishan @ Balwan, Karan Singh and Dilbagh
Singh are concerned, this Court finds that the prosecution has succeeded in
establishing their presence at the place of occurrence only to the limited extent
of having caused simple injuries individually attributed to them. The injuries
that have been sustained by the complainant party were medico-legally
examined by PW.1 Dr. Asha Sehrawat. She noticed two injuries on PW.4
Bhoop Singh which were tenderness and an abrasion. While injury No.1 was
kept under observation, the other injury was found to be simple.
151. She also medically examined and noted three injuries on PW.5
Ashok which are abrasions and lacerated wound on dorsal aspect of little
finger and tenderness. Injury Nos.1 to 3 on Ashok were possible by a fall on
a hard surface or by a blow.
152. There were three injuries on PW.10 Mangal and injuries were
eventually found to be simple and charge was framed only for the substantive
offence of having caused simple injuries. The evidence on record does not
justify fastening any vicarious liability upon them for the fatal injury sustained
by Dharampal or for the acts committed by the remaining accused. Their
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criminal liability has to be determined on the basis of their own individual acts
and not by invoking a broad theory of collective participation.
153. The injuries attributed to the aforesaid accused are undisputedly
simple in nature. The prosecution has not examined the Radiologist to prove
that any of the injuries inflicted by them were grievous in nature. The medical
evidence, therefore, does not disclose any aggravating circumstance
warranting interference with the sentence imposed by the trial Court.
154. Their convictions are, accordingly, maintained only to the extent
of the individual injuries proved to have been caused by each of them, and not
by applying the principle of constructive or vicarious liability for the acts of
the other accused.
155. For the reasons recorded under Issue No.(iii) above, their
conviction stands affirmed but for offence under Section 323 IPC each. This
Court has also taken into consideration the period of custody already
undergone by the said accused, the fact that the occurrence pertains to the year
2004, and the ordeal of a protracted criminal trial and appellate proceedings
spanning over two decades. Having regard to the totality of the circumstances,
we are of the opinion that the ends of justice would be adequately met by
reducing the substantive sentence awarded to the aforesaid accused to the
period already undergone by them.
(c) Krishan son of Randhir (CRA-D-848-DB-2004)
156. Insofar as appellant Krishan s/o Randhir is concerned, this Court
finds that the prosecution has failed to establish his presence and participation
in the occurrence beyond reasonable doubt. The evidence led against him does
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not inspire confidence and falls short of the standard required in a criminal
trial. The prosecution has also failed to establish any specific overt act
attributable to him by leading any evidence. All other injuries having already
been attributed to other accused, there remained no further corresponding
injury. He was originally found innocent by the investigating agency. The
FIR recorded at the instance of PW.4 Bhoop Singh as well as in the statement
of PW.10 Mangal Singh, there is no mention regarding any injury attributed
to him. Only PW.5 Ashok Kumar alleges a gandasi blow by the accused-
appellant Krishan, to him, on the right hand little finger. The medical evidence
however does not prove any corresponding injury and PW1, the doctor
deposed that tenderness was present on the left hand, which injury has neither
been attributed nor could have been caused by a gandasi.
157. For the reasons recorded under Issue No.(iii) above, his
conviction and sentence are set aside and he is acquitted.
158. As emerges from the detailed deliberations in preceding paras, it
has emerged that even though Surinder had admitted to having caused injuries
to deceased Dharampal but the same was not accepted on the ground that it
was an attempt to save the culprits. The said finding having been held by us
to be invalid and unsustainable on the objective reading of the evidence and
coupled with all other injuries rather being simple and co-relatable to act of
scuffling, grappling and blows, the version of Surinder seems more cogent.
159. Besides, recoveries of weapons having not been proved, the
prosecution case about the accused having used the weapons to cause injuries
cannot be taken as a gospel truth. It thus seems that Dharampal was given a
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blow by Surinder. The same proved fatal. He fell down due to impact thereof
and sustained the other injuries. The said opinion is based upon objective
consideration of the medical record and opinion of PW.11 Dr. Giri Raj.
160. It is also noticed that the incident falls in Exception 4 of Section
300 IPC and hence, it would not be a case of culpable homicide amounting to
murder, instead it is punishable under Section 304 Part II. A knowledge has
to be imputed to the accused to be aware of consequences of use of excessive
force against a frail person who is at advance stages in life.
161. The appeal is thus partly allowed and his conviction for offence
under Section under Section 302/149 is set aside and he is instead held guilty
for offences under Section 304 IPC.
162. Adverting next to the quantum of sentence. Undisputedly, the
incident is more than two decades old. The accused was then a young boy of
19 years and a Wrestler. Soon before the incident, he was coming after a
Wrestling practice. Youth and robust fitness coupled with uncontrolled
physical strength, the injury was seemingly caused. There was no repeat blow
or injury by him to any other person. It shows that he tripped on crime but is
not a criminal by intent. Besides, there are no criminal antecedents and he has
not indulged in any other criminal conduct as well. By now he is in his early
forties and would also have family responsibilities to discharge.
163. In view of the discussion held above, the appellant is sentenced
to undergo rigorous imprisonment for a period of seven (07) years and to pay
a fine of Rs.10,000/-. In default of payment of fine, he shall further undergo
rigorous imprisonment for a period of three (03) months.
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164. For the reasons as aforesaid, CRR-608-2005 filed by Bhoop
Singh is dismissed. Appeal filed by Krishan bearing No.CRA-D-848-DB-
2004 is allowed. The judgment of conviction qua him is set aside. Appeal
bearing No.CRA-D-880-DB-2004 filed by Rajbir Singh and others is partly
allowed, as above.
165. Pending misc. application(s), if any, shall also stand(s) disposed
of accordingly.
166. A photocopy of the order be placed on the connected file(s).
(VINOD S. BHARDWAJ)
JUDGE
August 20, 2026. (SUKHVINDER KAUR)
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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