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CASE NO.:

Appeal (crl.) 722 of 1993

PETITIONER:

JASWANT SINGH

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 04/04/2000

BENCH:

D.P. WADHWA & RUMA PAL

JUDGMENT:

JUDGMENT

2000 (2) SCR 903

The Judgment of the Court was delivered by

RUMA PAL, J. This judgment disposes of three appeals which arise out of the

same judgment of the Punjab & Haryana High Court. The appellant in the

first appeal has challenged the judgment because it upheld his convic-tion

under Section 323 and sections 302/34 of the Indian Penal Code (IPC) in

respect of the murder of Kulwant Singh and Bidhi Shankar. The three

appellants in the second appeal have also appealed against their conviction

by the High Court for the same offence under Sections 148, 307/149,

323/149, 302 and 302/149 IPC. The appellant in the third appeal was the

complainant and he is aggrieved by the judgment of the High Court because

two of the accused were acquitted.

The case of the prosecution was that there was a long standing enmity

between the accused and the deceased. Darshan Singh a relative of the

accused had been murdered. Kulwant Singh and Bidhi Shankar had been charged

with the murder, but had been released on bail. With the intention of

avenging the murder of Darshan Singh the nine accused formed an unlawful

assembly armed with guns, spears, lathis and axes and kirpans on 1st

September 1989 near the road leading from Chammu Kalan to Ismailabad Shisha

Singh (son of Banta Singh), Amrik Singh, Baksha Singh (also known as

Gurbaksh and Bakshi), Iqbal Singh, Gurnam Singh, Balkar Singh, Jaswant

Singh, Satnam Singh and Dalip Singh. Amrik Singh and Balkar Singh were

carrying guns; Jaswant Singh and Satnam Singh were carrying lathis, Shisha

Singh was carrying a 'gandasi', Iqbal Singh and Gumam Singh were carrying

'naizas' and Baksha Singh and Dalip Singh were carrying kirpans. That

morning Jagjit Singh (appellant in the third appeal) and Bidhi Shankar were

driving two motor-cycles with Kulwant Singh riding pillion on Jagjit's

motor cycle and Raj Rani, Bidhi Shankar's mother, riding pillion on the

motor-cycle of her son, Bidhi Shankar along that road. They were going to

get medical treatment for Kulwant Singh and Raj Rani. They were waylaid on

the road at 11.00 A.M. by the nine accused persons. Jaswant Singh

(appellant in the first appeal) struck Jagjit on the head with a lathi as a

result of which Jagjit's motor-cycle went out of control and fell on the

road. Shisha Singh inflicted a gandasi blow to Bidhi Shankar. Jagjit Singh

fled and hid behind a wall when Balkar Singh fired a shot at him. Kulwant

Singh and Bidhi Shankar both ran into the house of Shisha Singh (son of

Waryam Singh) and locked the door. The nine accused persons together chased

the fleeing men and broke open the door and window of the house and

attacked Kulwant Singh and Bidhi Shankar with the weapons. Shisha Singh

(son of Waryam Singh)'s wife, Gurdeep Kaur was then present in the house.

Bidhi Shankar and Kulwant Singh tried to defend themselves by taking

kirpans which were hanging on pegs in the room and they inflicted wounds on

Baksha Singh, Amrik Singh and Shisha Singh. Although all the nine accused

took part in the attack on Kulwant Singh and Bidhi Shankar, Iqbal and

Baksha in fact, inflicted the fatal wounds on Kulwant Singh while Shisha,

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Gumam, Satnam and Dalip struck Bidhi Shankar fatally. After the incident

took place the assailants left taking their weapons with them.

Jagjit Singh lodged the complaint with the local police station at 12.20

p.m. He named each of the nine accused. (Ex. PA). On the basis of his

complaint a case was registered under Sections 302, 307, 323, 148, 149,

120-B and 452 IPC against Shisha Singh (son of Banta Singh) (accused no.

1), Baksha Singh (accused no. 2), Amrik Singh (accused no. 3), Gurnam Singh

(accused no. 4), Iqbal Singh (accused no. 5), Dalip Singh (accused no. 6),

Balkar Singh (accused no. 7), Jaswant Singh (accused no. 8) and Satnam

Singh (accused no. 9).

Sub Inspector Surinder Singh directed Jagjit to get himself medically

examined. The Doctor Dr. Sushil Singhal's report was that Jagjit had

suffered a lacerated wound at the back of his head caused by a blunt

weapon. S.I. Surinder Singh then visited the spot, prepared inquest reports

of the dead bodies and had photographs taken of them and of the two motor

cycles. From the room where the dead bodies of Kulwant Singh and Bidhi

Shankar were found, he collected the broken pieces of the door and windows,

broken sheaths, chaddar, turban, one empty cartridge, blood, blood-stained

earth and the hair clutched in the right fist of Kulwant Singh. The two

motor-cycles were also taken into possession (Exhibits PR1 to PR8). A site

plan was prepared.

The next day, a post-mortem was conducted on the body of Kulwant Singh by

Dr. P.K. Goel and Dr. K.K. Chawla. They submitted a report (Ex. PC) to the

effect that death was due to hemorrhage and shock because of multiple

injuries which were ante mortem and suffieiecnt to cause death in the

ordinary course of nature. The injuries found were listed as follows :

(1) There was an incised wound 15 cm x 3 cm on the right side of face,

transversely placed starting from just near right ear going towards chin,

bone deep. Muscles and sub-cotaneous tissues were infiltrated with blood.

Clotted blood was present in the wound.

(2) There was an incised wound in the neck cutting through and through

except a flap of skin posteriorly by which head was connected with trunk.

All the muscles vessels, trachea vertebral column had been cut open at the

level of C3-4 vertebra. The wound was starting 6 cm behind the right ear

lobule and 1 cm below it; going across below it. The front of neck to left

side ending at the leve of left ear lobule four cm below it. Near the left

end of the wound muscles are partially cut. Muscle and subcutaneous tissues

were infiltrated with blood.

(3) There was an incised wound 2 x 0.2 cm transversely placed on the

back of left little finger over the middle phalanx. Sub cutaneous tissues

were deep.

(4) 4 MM oval lacerated wound on the lateral side of right arm 8 cm

below the accromian. The edges were blackened. A corre-sponding wound was

present on the middle side of the arm 3 MM lacerated wound a track of

infiltration is found connected with the two wounds.

(5) There was an oval lacerated wound 3 MM in size 1 cm above the left

nipple. Subcotaneous tissues were deep. The margins were blackened. Wound

was situated on the 4th rib. No pellet was found on exploration.

(6) There was oval lacerated wound 4 MM size situated 4 cm to left of

mid line just over the 9th rib. Margins were blackened. No pellets found on

exploration.

(7) There was an incised wound on the lateral side of right knee joint

6x2 cms bone deep. Subcutaneous tissues and muscles were infiltrated with

blood." A post mortem was also conducted in respect of Bidhi Shankar's body

by Dr. S. Saini. His report (Ex. PL) was that Bidhi Shankar's body had the

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following twenty injuries :

1. A large incised wound over the right side of face extending from

right ear pinna to chin. Underlying structure including bone, muscle and

blood vessel were all cut and open. The size of the wound was 8x2 inches.

Clotted blood was present in and around the wound.

2. An oblique incised wound on the upper part of the left side of for

head. It was bone deep and underlying bone was also cut. The size was 3

inches x 1/2 inch.

3. An oblique incised wound on the left side of face extending from

cheak bone down to lower mandible. The size was 4 inches x 1/2 inch. It was

muscle deep and the underlying muscles were cut

4. An incised eliptical (sic) wound on left side of upper part of

neck. It was 1/2" x 1" in size. Both endes narrow and the margin was sharp

it was 1/2 inch in breadth. Clotted blood was present around the wound.

5. An incised elptical (sic) wound horizontal on left side of the mid

line near middle of neck. It was 3 cm x 0.75 cm in size. Narrow on both end

and horizontal.

6. A small oval subcotancous deep blackish margins size 1 cm x 0.8

was present over upper part of left side of chest over 2nd intercortal

space. No track inside was found. Margins were irregular.

7. An incised elptical (sic) wound 2 cm and bone deep over the left

side of mid line of sternum over 5th intercortal space.

8. An incised elptical (sic) wound 3 cm x 1.8 cm over the left side

of lower part of chest over 9th intercortal space. On exploration wound was

going deep into lung and injuring lower part of lung.

9. An horizontal bruise 3 cm x 1 cm darkish reddish hi colour near

the enterior area of lower part of injury No. 8.

10. An incised wound on the right side and front of chest in the 5th

intercostal space in the mamerry line. It was elptical (sic) shape with

both ends narrow and was about 2 cm 0.75 cm. On exploring it was extending

upto lung and there was blood in the cavity.

11. An irregular bruise 1.5 x 0.3 cm on the right side of upper part of

chest. It was darkish, in colour.

12. Another irregular bruise darkish, reddish in colour over the upper

part of the sternum. 1.5 cm xl cm.

13. A small oval lacerated wounds sub-cotaneous deep 0.5 cm x 0.5 cm in

size over the abdominal wall on right lateral side above 3 cm below the rib

margins. Margins were black and irregular. No track or pellet were found.

14. Little finger of the right head was amputated at the base margins

were clean cut. Ring finger of this hand had a bone deep incised wound,

crossing it obliquely over its breadth, and terminal phalynx of big finger

had a muscle deep incised wound covering its breadth obliquely.

15. Another incised wound over the middle right hand over its palm. It

was muscle deep and of the size of 3 cm x 0.7 cm. Both edges were narrow.

16. An oblique, long bruise over lower part of right side of the chest

and abdomen. 13 cm x 1 cm in size and darkish, reddish in colour.

17. Incised elptical (sic) wound 3.5 cm x 1.5 cm and subcotaneous

tissues deep over the middle of front of right thigh.

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18. A long incised wound over the dorsal surface of upper part of left

forearm. It was vertical and was 11 cm x 2.5 cm in size and was muscle

deep.

19. Another incised wound 2.5 cm x 1 cm, muscle deep with both ends

narrow about 9 cm above the wrist over the dorsal surface of left fore arm.

20. A transverse incised wound 2.5 cm x 0.5 cm medial to medical matlerless

over right leg. Margins were sharp. Subcutaneous tissues were deep and

infiltrated of blood around it was present"

It was also opined that death was due to hemorrhage and shock and due to

the above named injuries which were ante mortem in nature and sufficient to

cause death in the ordinary course of nature.

Shisha Singh and Baksha Singh were arrested on 5.9.89. Pursuant to

statements made by them while in police custody a Gandasi (Ex. PV) and a

Kirpan were recovered. Gumam Singh was arrested on 6.9.89. His statement

(Ex. PA) led to the recovery of a blood stained naiza blade. Dalip Singh

and Satnam Singh were arrested on 8.9.89. Dalip Singh's statement led to

the recovery of a Talwar' and Satnam Singh's statement (Ex. PO) also led to

the recovery of a Talwar. After the arrest of Balbir Singh and Iqbal Singh,

on 8.9.89 they also made disclosure statements (Ex. PJ and PK) leading to

the recovery of a gun, one empty cartridge and 4 live cartridges. It was

found that the gun in fact belonged to Iqbal Singh. Amrik Singh was

arrested on 16.9.89. His statement (Ex. PP) led to the recovery of an empty

cartridge and a gun which belonged to Mohinder Singh.

On 26.9.89 Mohinder Singh was also arrested on the ground that he had been

part of the conspiracy to murder Kulwant Singh and Bidhi Shankar (Ex. PW).

On 17.9.89 SI Surinder Singh applied for collecting hair from the beard of

Amrik Singh for comparison with the hair found clutched in Kulwant Singh's

hand. The Magistrate's order recorded Amrik's refusal (Ex. PW1).

The weapons recovered were sealed in the presence of one Chetan Dev. These

together with the various items collected from the site, were sent to the

Forensic Science Laboratory for analysis. The Laboratory reports (Ex. PZ,

Ex. PZI) stated, inter alia, that the blood found on the naizas and kirpans

was human blood and the empty cartridges had been fired from the recovered

guns. (Ex. PN).

After completion of the investigation the police submitted the charge sheet

and the case was committed to the Court of sessions for trial.

The charges as recorded by the Trial Court were that :

(i) All the accused were charged under Section 148 IPC that they were

members of unlawful assembly, in prosecution of their common object to

commit murders of Kulwant Singh and Bidhi Shankar and attempted to commit

murder of Jagjit Singh Marwah.

(ii) Balkar Singh was charged with firing a gun shot at Jagjit Singh with

intent and knowledge that his death could be caused under Section 307 IPC.

The rest of the accused were charged for the various liabilities under

Section 307 read with Section 149 of the Indian Penal Code.

(iii) Baksha Singh and Iqbal Singh were charged for the offence of

committing murder of Kulwant Singh and the rest of the accused were charged

for the offence under Section 302 read with Section 149 of the Indian Penal

Code.

(iv) Shisha Singh and Gurnam Singh, Satnam Singh and Dalip Singh were

charged with causing the death of Bidhi Shankar under Section 302 of the

Indian Penal Code and Baksha Singh, Amrik Singh, Iqbal Singh, Jaswant

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Singh, Balkar Singh and Mohinder Singh were charged for the offence under

Section 302 read with Section 149 of the Indian Penal Code for the murder

of Bidhi Shankar.

(v) Jaswant Singh was charged with having voluntarily caused hurt to Jagjit

Singh Marwah under Section 323 of the Indian Penal Code whereas the rest of

the accused for the act were charged for the offence under Section 323 read

with Section 149 of the Indian Penal Code.

(vi) All the accused were further charged that in prosecution of common

object of the unlawful assembly they had agreed to commit the murder of

Kulwant Singh and Bidhi Shankar and attempted to commit murder of Jagjit

Singh Marwah and Mohinder Singh abetted the commission of the said offence

by giving his licensed gun to his co-accused Amrik Singh to use the same

for the commission of the said offence, in prosecution of the agreement and

was charged under Section 302 read with Section 120-B IPC.

(vii) Mohinder Singh was also charged for the offence punishable under

Section 30 of the Arms Act that he having parted with the possession of his

D.BB.L. Gun on 1.9.1989 contravened the terms of the licence.

(viii) Amrik Singh was charged for the offence punishable under Section 27

of the Arms Act for making unlawful use of the gun in the commission of

murders of Kulwant Singh and Bidhi Shankar and also charged for the offence

under Section 25 of the Arms Act for having in his possession D.BB.L. Gun

along with two live cartridges without any permit or licence.

(ix) Iqbal singh was charged under Section 30 of the Arms Act that he was

licencee of single gun No. 25641/9 and by giving it to Balkar Singh, he had

parted with its possession which was punishable under Section 30 of the

Arms Act.

(x) Balkar Singh was charged for the offence punishable under Section 27 of

the Arms Act for making unlawful use of the single barrel gun for making an

attempt to commit the murder of Jagjit Singh Marwah."

The defence of Shisha Singh, Baksha Singh and Amrik Singh was self defence.

According to them, Amrik Singh was dragged into the house by Kulwant Singh

and Bidhi Shankar and that Shisha Singh and Baksha Singh in their attempt

to rescue Amrik Singh caused the injuries to Kuldip Singh and Bidhi

Shankar. All the other accused claimed that they were falsely implicated

and were not there at all.

Thirteen witnesses were examined by the prosecution, namely, Gurdeep Kaur

(PW 1), Jagjit Singh (PW 2), Dr. P.K. Goel (PW 3), Raj Rani (PW 4), Dr.

Susheel Sighal (PW 5), (who examined Jagjit Singh, Shisha Singh, Amrik

Singh and Baksha Singh) Chetan Dev (PW 6), ASI Sube Singh (PW 7), Satish

Kumar (Police Photographer) (before whom the disclosure statements of the

accused and by whom recoveries of the weapons were made, (PW 8), Dr. D.S.

Saini, (PW 9), ASI Rajmal (PW 10), Mukesh Kumar (PW 11) who drew the site

plan) Raghbir Singh (PW 12 who recorded the FIR) and SI Surinder Singh (PW

13).

The defence produced six witnesses (a) Subhash Chopra (DW 1) in support of

Iqbal' s defence that Iqbal had deposited his gun with him; (b) Dr. R.K.

Kaushal (DW 2) to testify as to the nature of gun wounds; (c) Mahesh Inder,

court official to produce an FIR filed by Shisha relating to a dispute

between one Darshan Singh and Kulwant Singh and subsequent murder of

Darshan Singh by Kulwant Singh and his associates which included Bidhi

Shankar, (d) Dr. S.K. Bhalla (DW 4) and (e) Dr. A. Allawani (DW 5) both of

whom testified as to the wounds on Amrik (f) ASI Ranga Ram (DW 6) to prove

that Dalip Singh had claimed to be an eye witness to the murder of Darshan

Singh.

The Trial Judge meticulously considered the evidence and the argu-ments and

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in an elaborate judgment found charges 1 to 6 proved against all the

accused except Mohinder Singh who was acquitted of the charge under Section

148 IPC. Mohinder Singh was however found guilty of violating Section 30 of

the Arms Act. Balkar Singh and Iqbal Singh were also found guilty of

offences under Sections 30 and 27 of the Arms Act but acquitted in respect

of the offence under Section 25 of the Arms Act as conviction under that

Section could not be done without the sanction of the District Magistrate

which had not in fact been obtained.

After convicting the accused for the offences as found, the Trial Court

considered the arguments on the quantum of punishment and sentenced Shisha

Singh, Baksha Singh and Amrik Singh for their offence under Section 302 IPC

and for the remaining accused convicted under Section 302/149 IPC to

imprisonment for life. For the other convictions different terms of impris-

onment and fines were imposed. All sentences were to run concurrently.

All the accused appealed. The High Court was of the view that the case

against Gurnam Singh, Iqbal Singh, Dalip Singh, Balkar Singh, Satnam Singh

and Mohinder Singh had not been proved and as such they were acquitted of

all charges. The High Court altered the conviction in respect of Shisha

Singh, Baksha Singh, Amrik Singh and Jaswant Singh to offences under

Sections 302/34 IPC. Jaswant Singh was held guilty under Section 323 IPC

and Shisha Singh, Baksha Singh and Amrik Singh under Sections 323/34 IPC.

Amrik Singh's conviction under Section 27 of the Arms Act was also

maintained. As far as Mohinder Singh was concerned his conviction under

Section 302/120 B IPC was set aside but his conviction and sentence under

Section 30 of the Arms Act was upheld.

Jagjit sought to prefer an appeal by way of Special Leave before this court

against the acquittals. The Special Leave Petitions against Mohinder Singh,

Balkar Singh, Dalip Singh and Satnam Singh were dismissed but granted as

far as Iqbal Singh and Gurnam Singh were concerned.

Since all the appeals are being disposed of simultaneously keeping in view

the fact that the third appeal is one against acquittal, it would be

appropriate to deal with that appeal first before assessing the evidence.

The principle to be followed by Appellate Courts considering an appeal

against an order of acquittal is to interfere only when there are

"compelling and substantial reaons" for doing so. If the order is "clearly

unreasonable" it is a compelling reason for interference (See : Shivaji

Sahabrao Bobade v. State of Maharashtra, [1973] 2 SCC 793). The principle

was elucidated in Ramesh Babulal Doshi v. State of Gujarat, [1996] 9 SCC

225 :

"While sitting in judgment over an acquittal the appellate court is first

required to seek an answer to the question whether the findings of the

trial court are palpaly wrong, manifestly erroneous or demonstrably

unsustainble. If the appellate court answers the above question in the

negative the order of acquittal is not to be disturbed. Conversely, if the

appellate court holds, for reasons to be recorded, that the order of

acquittal cannot at all be sustained in view of any of the above

infirmities it can then - and then only - reappraise the evidence to arrive

at its own conclusions."

[See also : George v. State of Kerala, (1998) Crl. L.J. 2034 (SC)].

We have found such demonstrable perversity in the decision of the High

Court, particularly in its appreciation and application of the provisions

of Sections 34 and 149 IPC.

Both sections deal with the vicarious liability of an accused for an

offence committed by another. Under Section 34 IPC "when a criminal act is

done by several persons in furtherance of the contemplation of all, each of

such persons is liable for that act in the same manner as if it were done

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by him alone" Similarly Section 149 IPC provides for the guilt of every

member of an unlawful assembly if in prosecution of a common object an

offence is committed, or which the members know would be likely to be

committed in prosecution of that object.

The similarity of the sections lies in the requirement of a common object

or intention or a pre-arranged plan in furtherance of which the act is

done. The difference lies in the degree of actual participation required in

the criminal enterprise. The nature of participation under Section 34 IPC

has been considered in the case of Ramaswami Ayyangar v. State of Tamil

Nadu, [1976] 3 SCC 779 at p. 783 :

"Section 34 is to be read along with the preceding Section 33 which makes

it clear that the "act" spoken of in Section 34 includes a series of acts

as a single act. It follows that the words "when a criminal act is done by

sereral person" in Section 34, may be construed to mean "when criminal acts

are done by several persons". The acts committed by different confederates

in the criminal action may be different but all must in one way or the

other participate and engage in the criminal enterprise, for instance, one

may only stand guard to prevent any person coming to the relief of the

victim, or may otherwise facilitate the execution of the common design.

Such a person also commits an "act" as much as his co-participants actually

committing the planned crime, in the case of an offence involving physical

violence, however, it is essential for the application of Section 34 that

the person who instigates or aids the commission of the crime must be

physically present at the actual commission of the crime for the purpose of

facilitating or promoting the offence the commission of which is the aim of

the joint criminal venture. Such presence of those who in one way or the

other facilitate the execution of the common design, is itself tantamount

to actual participation in the "criminal act". The essence of Section 34 is

simultaneous consensus of the minds of persons participating in the

criminal action to bring about a particular result."

The' emphasis is on physical presence, and promotion or facilitation of the

crime.

As far as section 149 IPC is concerned in addition to the common object,

merely being a member of an unlawful assembly within the meaning of Section

141 IPC may be sufficient. As held in Lalji v. State of U.P., [1989] 1 SCC

437.

"Once the case of a person falls within the ingredients of the section the

question that he did nothing with his own hands would be immaterial. He

cannot put forward the defence that he did not with his own hand commit the

offence committed in prosecution of the common object of the unlawful

assembly or such as the members of the assembly knew likely to be committed

in prosecution of that object. Everyone must be taken to have intended the

probable and natural results of the combination of the acts in which he

joined. It is not necessary that all the persons forming an unlawful

assembly must do some overt act. When the accused persons assembled

together, armed with lathis, and were parties to the assault on the

complainant party, the prosecution is not obliged to prove which specific

overt act was done by which of the accused. This section makes a member of

the unlawful assembly responsible as a principal for the acts of each, and

all, merely because he is a member of an unlawful assembly. While overt act

and active participation may indicate common intention of the person

perpetrating the crime, the mere presence in the unlawful assembly may

fasten vicariously criminal liability under Section 149. It must be noted

that the basis of the constructive guilt under Section 149 is mere

membership of the unlawful assembly, with the requisite common object or

knowledge.

[See also State of A.P. v. Thakkadiram Reddy & Ors., [1998] 6 SCC 554.]

The High Court accepted the statement of Jagjit Singh to the effect that

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all the nine accused including Gurnam Singh and Iqbal Singh being armed,

way-laid the two motor cycles, that Jagjit was struck on the head by

Jaswant Singh, that Shisha Singh hit Bidhi Shankar with the 'gandasi', and

that all the accused chased the fleeing Kulwant Singh and Bidhi Shankar and

broke open the door of the house in which they had taken shelter.

The High Court also accepted the evidence of Raj Rani, the mother of Bidhi

Shankar (PW4). This is what was said about her testimony :

"Now coming to the testimony of Raj Rani (PW 4) she has reiterated the

prosecution version as given by Jagjit Singh (PW2). She too was cross-

examined at length but the defence counsel could not elicit anything which

could favour the defence and discredit the prosecu-tion."

The specific evidence given by Raj Rani was that Gurnam Singh and Iqbal

Singh armed with naizas along with the other accused not only way laid

them, but were present when Shisha Singh inflicted a gandasi blow on the

head of Bidhi Shankar and Jaswant Singh hit Jagjit with a lathi. She had

also said that all the accused chased the two victims shouting that the

enemies would not be spared, and that all the accused excepting Balkar

Singh who stood guard outside, entered the room after the door was broken

and that after the accused left, she found Bidhi Shankar and Kulwant Singh

were both dead with multiple injuries on their bodies.

The High Court also accepted the evidence of Gurdeep Kaur (PW 1) in

no uncertain terms when it said :

if

"Gurdeep Kaur (PW 1) in whose house the occurrence had taken place was

cross-examined at length but nothing material could be extracted from her

testimony which could shatter her credibility or would throw any doubt

about her presence at the place."

Again at another place it was reiterated :

"She did not deviate from the prosecution version despite a searching

cross-examination. She with-stood the test of cross-examination."

Now Gurdeep Kaur had testified :

"I had seen from the adjoining room that Bakshish Singh and Iqbal Singh

accused grappled with Kulwant Singh and attempted to throw him on the

ground but he was resisting their that attempt. Amrik Singh started loading

his gun to fire at Kulwant Singh but Iqbal Singh intervened and stopped

Amrik Singh from loading the gun and added that Kulwant Singh would be

killed in the same manner as his father was killed. Kulwant Singh then had

caught the beard of Amrik Singh and they grappled with each other. Jaswant

Singh also joined the accused to over power Kulwant Singh and Baksha Singh

with kirpan severed the head of from the body. Iqbal Singh, Jaswant Singh

and Baksha Singh had also caused injuries to Kulwant Singh."

She had also categorically asserted :

"Bidhi Shankar was attacked by Dalip Singh, Shisha Singh, Gurnam Singh &

Satnam Singh and had killed to death with Kirpan and Naiza and Gandasi."

Thus the accepted evidence was that there was an unlawful assembly of all

the accused, which, with the common object or premeditated plan of

murdering Kulwant Singh and Bidhi Shankar, waylaid chased and attacked them

resulting in their death. All the elements of both sections 149 and 34 IPC

were there.

Although each case must be decided on its own facts, a somewhat similar

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situation arose in State of Haryana v. Tek Singh, [1999] 4 SCC 682. In that

case

"They came all of a sudden armed with the deadly weapons and attacked the

victims, who rushed to take shelter in house. In such a fact situation,

some contradictions as to who assaulted whom, with what weapon and whether

it was by the sharp edge or blunt side of the gandasa are bound to be

there, particularly when the blows are given in quick succession, it would

be against the ground reality to expect the eye witnesses to depose exactly

on which part of the body the blow landed. In these circumstances, even if

there is some exaggeration with regard to the infliction of blows, it would

hardly be a ground for rejecting their testimony. It may be futile to

expect an exact description of the details of the attack on the victims by

each accused from the window of one of the deceased who witnessed the

dastardly act or from eyewitnesses. The accused were known to the widow and

the witnesses. Their names were disclosed immediately. Hence, the presence

of the accused at the scene of offence was established. They all were armed

with deadly weapons and came together. In such a situation, when the

presence of the accused who were armed with deadly weapons is established

beyond doubt, Sections 148 and 149 IPC would come into operation and they

would be liable for the offences."

In the case before us the High Court found the ingredients of both section

34 EPC and of Section 149 IPC were proved as far as all the accused were

concerned, when it said :

"It can well be interred that the accused on coming to know that Jagjit

Singh and Bidhi Shankar had started on their motorcycles towards

Ismailabad, premeditated and collected near the house of Darshan Singh and

in order to take revenge of the murder of Darshan Singh brother of Shisha

Singh, accused all of them in prosecution of the common object which was to

kill Kulwant Singh and Bidhi Shankar did commit the murder of both of

them."

This should have been sufficient to hold all the accused guilty under

Sections 34 and 149. And yet the High Court acquitted Gurnam Singh and

Iqbal Singh on the ground that :

"Their participation in the commission of the crime does not stand proved.

According to Gurdeep Kaur (PW-1), Iqbal Singh and Gurnam Singh accused were

armed with Neza. However, the Doctors, who performed autopsy on the dead

bodies of Kulwant Singh and Bidhi Shankar did not find any injury caused by

Neza. Therefore, their participation in the crime is not free from doubt.

Consequently, the conviction of Iqbal Singh and Gurnam Singh accused is set

aside."

In other words what the High Court did was look for evidence that Gumam

Singh and Iqbal Singh had actually struck the blows on the victims. This

conclusion is not only contradictory to its own finding but is based on an

erroeous interpretation of the provisions of both Section 34 and 149 FPC as

authoritatively laid down. The order of the High Court acquitting Gurnam

Singh and Iqbal Singh therefore cannot stand.

We may now consider the evidence to see whether the guilt of Shisha Singh,

Baksha Singh, Amrik Singh, Gumam Singh and Iqbal Singh has been

established.

A fact which has not been disputed either by the complainant or the

'accused and which both sides have called in aid of thek respective cases

is that it all started with a dispute over a 'Bara' between Kesar Singh and

Darshan Singh on the one side and Kulwant Singh (deceased) on the other.

According to the accused, because of this enmity, Darshan Singh was

murdered by Kulwant Singh and his associates including Bidhi Shankar. In

fact both Kulwant Singh and Bidhi Shankar were charged with Darshan Singh's

murder. All the accused are either relatives of Darshan or Kesar: Shisha

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Singh, Baksha Singh and Amrik Singh were Darshan's brothers: Gurnam Singh

and Iqbal Singh were Darshan's sons and Jaswant Singh is Kesar's son.

According to the prosecution this enmity provided the motive for the

commission of the crime by the accused. According to the defence it

provided the motive for Kuldip Singh and Bidhi Shankar not only to initiate

the attack on Amrik Singh but also to falsely implicate the other accused

of the cirme. Both the courts below have accepted the version of the

prosecution and we see no reason to differ with thek assessment of the

evidence in this regard.

We have also noted the concurrent finding of fact that the accused being

armed had accosted the victims while they were travelling on motorcycles

from Chammu Kalan to Ismailabad. Both Courts accepted the evidence of

Gurdeep (PW1), Jagjit (PW2) and Rajrani (PW4) as being consistent, cor-

roborative and credible. Even if one excludes the presence of the other

accused whose acquittals by the High Court were not interfered with by this

Court, the remaining six accused formed an unlawful assembly within the

meaning of Section 141 IPC. Their object in forming the assembly was to

murder Bidhi Shankar and Kulwant Singh. This premeditation is evidenced not

only by thek foregathering on the road with deadly weapons but also by thek

subsequent conduct commencing with the lathi blow to Jagjit Singh by

Jaswant Singh and the gandasi blow to Bidhi Shankar by Shisa Singh and

followed by the concerted chase of the victims and forcible entry into the

house where the victims had taken shelter and finally leaving the site

after the murder, together.

"Prior concert and arrangement can, and indeed often must, be determined

from subsequent conduct, as for example, by a systematic plan unfolding

itself during the course of the action which could only be referrable to

prior consent and pre arrangement, or a running away in a body or a meeting

together subsequently."

[See : Pandurang v. State of Hyderabad, ATR (1955) SC 216.]

That the murders took place in the room where the bodies' were found has

not been disputed. The blood stained floor, the photographs and the site

plan which were proved substantiate this. Evidence of the broken door

corroborates the forcible entry.

The accused Gurnam Singh, Iqbal Singh and Jaswant Singh say that they were

falsely implicated, but they led no evidence either oral or documen-tary to

show that they were elsewhere. Even the High Court accepted mat these

accused were present at the scene of me murders. The evidence shows further

that they actively participated in me cirme. Apart from the oral testimony

of the prosecution witnesses is the unimpeachable medical evidence of the

doctors who conducted the post mortems and the recovery of the weapons from

the places indicated by the accused all of which sufficiently prove their

involvement in the crime.

As far as Gurnam Singh and Iqbal Singh are concerned they were carrying

naizas. A naiza is a spear or pike - like weapon causing invisible wounds.

The High Court mis-read the evidence of doctors when it said that "the

doctors did not find any injury caused by Neza". The post mortems showed

several deep incised wounds on both the deceased. The doctors did not say

that the injuries could not be caused by naizas. What they had said was

that the incisions could have been caused by a sharp weapon "including a

gandasi or a kirpan". The word "including" indicates that it could have

been some other sharp weapon.

The Trial Court in fact found :

"The injury No. 3 which was incised would 2 x 0.2 cm on the person of

Kulwant Singh, injury no. 4 which was 1/2 x 1/4" eliptical wound injury no.

7 which was incised eliptical wound 2 CM and bone deep on the person of

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Bidhi Shankar, Keeping in view the size of the injuries (they) could

possibly to the result of Neza blow."

In fact the narrowness and depth of the incised wounds as indicated in the

Post Mortem Reports supports the Trial Court's finding. The naizas

recovered consequent upon the disclosure statements made from the places

indicated by Gurnam Singh and Iqbal Singh were found by the Forensic

Science Laboratory to be covered with human blood. No explanation was given

by either of these accused as to this telling circumstance which indicated

their participation in the crime.

As far as Jaswant Singh is concerned, that he formed part of the armed

group which intercepted the victims and initiated the assault by striking a

blow on Jagjit Singh's head is established by the evidence of Jagjit Singh

himself, and Rajrani. That Jagjit Singh's wound could have been caused by a

lathi blow is corroborated by the evidence of Dr. Sushil Singhal. Jaswant

Singh's complicity in the attack of the victims continued when he along

with the other accused chased the victims as they fled to take shelter.

This would be sufficient to hold him guilty under Sections 149 and Section

34 IPC. In addition his actual participation in the killing was seen and

testified to by Gurdeep Kaur. Gurdeep Kaur's evidence was that Jaswant

Singh facilitated

the killing of Kulwant Singh not only by beating him but also by helping

the other accused to overpower him. It is true that in cross examination

Gurdeep Kaur said "I do not know who of the accused had caused injuries to

whom of the deceased as I had seen all the accused causing injuries to the

deceased" but this does not detract from evidence of participation of

Jaswant Singh in the murder of the deceased. The effect of this seeming

contradiction is considered in greater detail in connection with Shisha

Singh, Baksha Singh and Amrik Singh. The medical evidence of bruises is

consist-ent with the finding of lathi blows and has been so stated by the

doctors who conducted the post-mortems.

As far as Shisha Singh, Baksha Singh and Amrik Singh are concerned, they

admitted they were there but pleaded self defence. The accused claimed that

both the Trial Court and the High Court had erred in relying on the

evidence of Gurdeep Kaur as she was not an independent witness and

particularly when her statements at the trial had not been made earlier

when interrogated by the police under Section 161 of the Code of Criminal

Procedure. It is also submitted that neither Jagjit (PW 2) nor Raj Rani (PW

4) had seen the commission of crime and that although Gurdeep Kaur in her

evidence had referred to the presence of two other eye witnesses namely

Omkar Nath and Som Nath neither them had been called as witnesses.

It would be unfair to the Courts below to hold that they had merely relied

on the evidence of Gurdeep Kaur. They had considered the evidence of all

the witnesses including the material and medical evidence particularly the

wounds on the victims and concluded that the charges under Section 3027 34,

323/34 IPC were established. Besides the place of occurrence being inside

the residence of Gurdeep Kaur it was natural that she should be present.

Section 161(2) of the Code requires the person making the statements 'to

answer truly all questions relating to such case, put to him by such

officer....". It would, therefore, depend on the questions put by the

police officer. It is true that a certain statement may now be used under

Section 162 to contradict such witness in the manner provided by Section

145 of the Indian Evidence Act, 1872. Previously, the law was as enunciated

in Tehsildar Singh and Another v. The State of Uttar Pradesh, [1959] 2 SCR

875: as "omissions, unless by necessary implication be deemed to be part of

the statment, cannot be used to contradict the statement made in the

witness-box."

Now the Explanation to Section 162 provides that an omission to state a

fact in the statement may amount to contradiction. However, the explana-

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tion makes it clear that the omission must be a significant one and

'otherwise relevant" having regard to the context in which such omission

occurs and whether any omission amounts to a contradiction in the

particular context shall be a question of fact.

Reading Section 161(2) of the Criminal Procedure Code with the Explanation

to S.I62, an omission in order to be significant must depend upon whether

the specific question, the answer to which is omitted, was asked of the

witness. In this case the Investigating Officer, PW 13 was not asked

whether he had put questions to Gurdeep Kaur asking for details of the

injuries inflicted or of the persons who had caused the injuries.

As already noted Gurdeep Kaur's testimony in this regard was believed by

both Courts. Both the trial Court as .well as the High Court were of the

view that although Gurdeep Kaur had not given to the Police particulars of

who had caused which injury she had not deviated from the actual occurrence

and the manner in which it had happened. This Court has also held that "an

incident where a number of persons assaulted three persons at one and the

same time with different weapons, some contradictions as to who assaulted

whom and with what weapon were not unlikely, and such contradictions could

not be made a ground to reject the evidence of eyewitnesses, if it was

otherwise reliable. See : Satbir v. Surat Singh, [1997] 4 SCC 192. Both the

Courts below have also come to the conclusion as a matter of fact that the

omissions were not contradictions in the particular context. There is no

reason for us to interfere with this concurrent finding of fact.

In any event, the viciousness and extent of the injuries inflicted on the

victims compared with the injuries suffered by Shisha Singh, Baksha Singh

and Amrik Singh belies the plea of self defence. Kulwant Singh's head was

virtually severed from his body. Both bodies bore deep slash wounds,

incised wounds gunshot wounds and extensive bruising. On the other hand Dr.

Sushil Singhal (PW 5) who examined Shisha Singh had only found a wound

between the left thumb and forefinger (Ex. DD). He also testified that he

had examined Baksha Singh and found one wound on the left forearm (Ex. DE).

Even the defence witnesses (DW5 and DW6) said that Amrik Singh had suffered

cuts and lacerations. Furthermore, the plea was taken by these accused for

the first time in their statements recorded under Section 313 of the Code

of Criminal Procedure Finally, no such plea of self-defence was put in

cross-examination to any of the prosecution witnesses. The High Court, in

the circumstances, rightly rejected the plea of self-defence as an

afterthought.

For all these reaons, we allow the appeal of the complainant by setting

aside the order of acquittal and restoring the decision of the Sessions

Court and dismiss the appeals filed by Shisha Singh, Baksha Singh, Amrik

Singh and Jaswant Singh. Consequent upon our allowing the complainant's

appeal, all the appellants are also convicted under Section 302/449 IPC. If

any of the accused is on bail he shall surrender to his bail bond and be

taken into custody forthwith to serve out the sentences imposed upon him.