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CASE NO.:

Appeal (crl.) 57 of 1996

PETITIONER:

SUKHCHAIN SINGH

Vs.

RESPONDENT:

STATE OF HARYANA & ORS.

DATE OF JUDGMENT: 24/04/2002

BENCH:

R.P. Sethi & Doraiswamy Raju

JUDGMENT:

(With Criminal A.No.58/96)

J U D G M E N T

SETHI,J.

These appeals are directed against the order of the

High Court acquitting the respondents who, upon trial, were

found guilty and convicted by the trial court for the

commission of the offence punishable under Section 302 read

with Section 34 of the Indian Penal Code. They were

sentenced to life imprisonment and a fine of Rs.10,000/-

each to be paid, on realisation, to the widow of the

deceased. It is contended that the judgment of the High

Court is perverse, based upon assumptions and conjectures,

completely ignoring the reliable legal evidence and has

resulted in miscarriage of justice which is sought to be set

right.

The occurrence in which one Raj Karan aged about 23

years was murdered, took place in Village Siwah near Panipat

in the State of Haryana. Report of the occurrence was

lodged on the same day at about 10.30 a.m. at the police

station which is 8 kms. away from the place of occurrence.

The copy of the said report was sent to the Area Magistrate

under Section 157 of the Cr.P.C. which reached the

Magistrate at 11.00 a.m.

The deceased along with his 7 other brothers was living

in the said village Siwah where they owned their lands. One

of his brother Sukhchain Singh (PW1) was a practicing lawyer

at Panipat while permanently residing in the village. The

deceased and Sukhchain Singh (PW1) were living jointly

whereas all the remaining brothers lived separately. In

their neighbourhood lived Hardwari Lal and Suraj Mal who

were in litigation with each other for partition of the

land. As Raj Karan was on visiting terms with Suraj Mal,

Hardwari Lal's nephew Bishna and his grand-son Balbir, both

accused, had conceived ill-will against Raj Karan, deceased

whom they considered as the apple of discord. On the night

intervening 2nd and 3rd of May, 1989, Sukhchain Singh

(PW1), Raj Karan, deceased and Jai Karan, cousin of PW1 were

carrying chaff loaded in a trolley from the fields of the

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village. At about 4 a.m. on 3rd May, 1989, the deceased

after loading the trolley tied it with the tractor and drove

it near their house where the chaff was to be stacked in the

adjoining rooms. Sukhchain Singh (PW1) and Jai Karan (PW2)

were coming to their house on foot by a short-cut passage

after Raj Karan had left the fields. After reaching near

the house Raj Karan started waiting for his brother and

cousin to reach. At that time both the accused persons,

armed with lathis (sticks), came out of their house, raised

a lalkara declaring that they will teach a lesson to Raj

Karan for helping Suraj Mal and finish him. They surrounded

the deceased and inflicted lathi blows on his head. The

commotion and the noise attracted the attention of Sukhchain

Singh (PW1) and Jai Karan (PW2) who saw the occurrence.

They saw Balbir and Bishna giving blows on the head of Raj

Karan as a consequence of which the injured became

unconscious and fell down on the ground. When the witnesses

raised hue and cry and sought help of the villagers, the

accused persons fled away from the spot with their lathis.

Satinder Kumar, another brother of the deceased, also

reached on the spot. All the persons present on the spot

arranged a trolley and removed Raj Karan in an injured

condition to Civil Hospital, Panipat for treatment but at

6.45 p.m. the injured succumbed to his injuries in the

Hospital. When the injured was brought to the Hospital, the

doctor had sent a note to the Police Station, Sadar, Panipat

on the receipt of which Bullan Singh, Assistant Sub-

Inspector (PW5) reached the Civil Hospital and recorded the

statement of complainant Sukhchain Singh (PW1) at 8.30 a.m.

which was later treated as First Information Report and

marked Exh. PA/3.

After completing the investigation, the accused were

sent for their trial under Section 302 read with Section 34

of the Indian Penal Code. In order to prove its case

prosecution examined Sukhchain Singh (PW1), Jai Karan (PW2),

Dr.Mahesh Parkash (PW3), Balak Ram (PW4), Assistant Sub-

Inspector Bhullan Singh (PW5), Head Constable Hanu Ram (PW6,

Head Constable Chandi Ram (PW7), Head Constable Tasveer

Singh (PW8), Sub-Inspector Mehar Singh (PW9) and Constable

Om Parkash (PW10). As earlier noticed, Sukhchain Singh (PW1)

and Jai Karan (PW2) are the eye-witnesses of the occurrence.

Relying upon the testimony of the eye-witnesses, the trial

court held both the accused guilty of the offence punishable

under Section 302 read with Section 34 of the Indian Penal

Code and sentenced them to life imprisonment.

Not relying upon the testimony of PWs1 and 2, the High

Court acquitted the accused persons vide the judgment

impugned in these appeals. Feeling aggrieved by the

judgment of the High Court Criminal Appeal No.57 of 1996 was

filed by the complainant and Criminal Appeal No.58 of 1996

by the State of Haryana.

To arrive at the conclusion that PWs1 and 2 were not

the eye-witnesses of the occurrence, the High Court noted:

"PW1 Sukhchain Singh stated at the trial that he

brought his injured brother Raj Karan to Civil

Hospital, Panipat in a tractor-trolley. He was

accompanied by Satinder Kumar, Sukhdarshan alias

Sukhdev and Jai Karan; but from the medico-legal

report, it is shown that injured Raj Karan (since

deceased) was brought to the Hospital by

Sukhdarshan alias Sukhdev and none else. On the

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medico-legal report Exhibit PE, in the column

"name of relative and friend", the name of

Sukhdarshan alias Sukhdev was written. It is

again clear from the medico-legal report Exhibit

PE that the certificate to the effect that the

injured was not previously medico-legally examined

was also signed by Sukhdarshan. At the end of the

medico-legal report where it is printed as

signatures of thumb-impression of private party,

there also the name of Sukhdarshan is written.

Date of arrival and medical examination of Raj

Karan is given as May 3, 1989, 6.30 a.m. by the

Doctor. Immediately after the medical examination

of injured Raj Karan the doctor had sent ruqa

Exhibit PF to the Station House Officer, Police

Station Sadar, Panipat, which reads as under:

"To

SHO,

Sadar, Panipat

It is for your information that an

unconscious patient Mr.Raj Karan, S/o Sh.Kehar

Singh is admitted in G.H. Panipat alleged to have

been beaten up by somebody.

Kindly note and take the necessary action.

Sd/-

Doctor 3.5.1989

at 6.35 a.m."

Immediately after receipt of ruqa Exhibit PF from

the Hospital in the police station which is

admittedly at a distance of about 200 yards from

the Hospital, an entry Exhibit PF/1 in the Daily

Diary Register was made in the police station

which reads as under:

P.S. Sadar Panipat Copy of Rapat District Karnal

SI/SHO On receipt of 3.5.1989 Time

the ruqa of 6.55 a.m.

the Doctor and

Departure of

ASI

At this time a ruqa of the doctor has been

received from G.H. Hospital through the Ward

Servant with following subject.

It is for your information that unconscious

patient Mr.Raj Karan S/o Kehar Singh is admitted

in G.H. Panipat alleged to have been beaten up by

somebody. Kindly note and take the necessary

action.

Sd/-

DOCTOR

3.5.1989 6.30 a.m.

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FROM THE POLICE STATION:

On receipt of the ruqa of the doctor with the

above subject, I the ASI along with H.C. Tasvir

Singh No.1012 and Davinder Singh No.183, started

towards G.H. Panipat for recording the statement

of injured.

Sd/-

P.S. SADAR

PANIPAT

3.5.1989."

From the evidence mentioned above, one thing is,

however, clear that immediately after arrival of

injured Raj Karan, the Doctor who had conducted

medico-legal examination was informed by Sudarshan

that injured Raj Karan was beaten up by someone.

The accused were not named as the assailants

before the Doctor. Even PW1 had stated at the

trial that Sukhdarshan alias Sukhdev gave

information to the Doctor about the particulars of

the injured and PW2 Jai Karan had stated at the

trial that Sukhdarshan had made enquiries from

them as to who had caused injuries to Raj Karan

and they had told him as to who had caused

injuries to Raj Karan. It has come in evidence of

PW5 Assistant Sub-Inspector Bhullan Singh that

when he reached the Hospital at 7.10 a.m., on May

3, 1989 there was none with Raj Karan Injured

(deceased) except the Doctor. He had searched for

relations/attendants of Raj Karan, but he could

not find any. It was only at 8.30 a.m. on that

date that Sukhchain Singh (PW1) met him in the

lawn of the Hospital who was alone at that time

and he recorded his statement. It was only at

that stage that the appellants were named as

accused in this case by PW1 Sukhchain Singh, the

real brother of the deceased. Earlier to that,

neither Sukhchain Singh, the first informant nor

others including Jai Karan, Satinder Kumar or

Sukhdarshan alias Sukhdev were available to the

police in the Hospital nor any one of them had

informed the police regarding the occurrence,

though the police station was hardly 200 yards

from the Hospital (the distance of 200 yards from

the Hospital to Police Station has come in the

evidence of PW1 Sukhchain Singh). Again it is

clear from the evidence on record that Sukhdarshan

met the Doctor who prepared the medico-legal

report Exhibit PE and he did not name these two

accused-appellants as the assailants. It is

further fortified by the fact that Sukhdarshan who

was a material witness in this case and signed the

medico-legal report and had taken the injured to

the Hospital had not been produced by the

prosecution having been left over as unnecessary

and particularly so when PW1 had stated at the

trial that Sukhdarshan had given information about

the injured to the Doctor."

The High Court further found that except the alleged

bald assertions of PWs1 and 2, there was no evidence of

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transporting the chaff from the field to the house of the

complainant. The room where the chaff was to be stacked was

held to be not in possession of the complainant and in fact

leased out to Anganbadi because in one of rooms there hung a

sign-board with the words "Agan Badi Village Siwah". The

transportation of the chaff was also held to be not proved

by the High Court because of the non seizure of the tractor

trolley or the chaff by the investigating officer. As some

semi digested food was found in the stomach of the deceased,

the High Court held PWs1 and 2 to be untrustworthy as they

had consumed their food at 8.30 p.m. and the deceased was

wrongly stated to have taken his food at 10-11 p.m. The

High Court concluded that it was the case of blind murder

and the occurrence had not taken place at 4 a.m. in view of

the finding of the Doctor regarding semi-digested food in

the stomach of the deceased.

Mr.U.R. Lalit, Senior Advocate who appeared for the

accused persons supported the judgment of the High Court and

submitted that it was a fit case where this Court should not

interfere under Article 136 of the Constitution of India.

It is submitted that the view taken by the High Court, on

appreciation of evidence, was a probable view which did not

require to be substituted by another view even that view is

possible to be taken. Learned counsel also justified, on

facts, the conclusions arrived at by the High Court in the

impugned judgment.

Mr.J.P. Dhanda, the learned counsel appearing for the

State of Haryana submitted that the finding of the High

Court being perverse and based upon assumptions and

presumptions required to be rectified. He contended that in

view of the elaborate judgment of the trial court, there was

no ground or occasion for the High Court to have passed the

impugned judgment.

It is true that generally this Court does not interfere

with the finding of fact arrived at after proper

appreciation of evidence by the Courts below. But if such a

finding is perverse, based upon no evidence or based upon

such evidence which is inadmissible or is the result of

imaginative hypothesis, conjectures, illegal assumptions and

presumptions, the Court is entitled to re-appreciate the

evidence to ascertain the validity of its judgment. In

Pritam Singh v. The State [AIR 1950 SC 169] this Court held

that special leave to appeal can be granted only if it is

shown that the exceptional and special circumstances exist

to show that substantial and grave injustice has been done

and the case in question presents features of sufficient

gravity to warrant a review of the decision appealed

against. In Sadu Singh Harnam Singh v. The State of Pepsu

[AIR 1954 SC 271] it was observed that this Court does not,

by special leave, convert itself into a court of review to

review evidence for a third time. But where, however, the

court below is shown to have failed in appreciating the true

effect of material change in the version given by the

witnesses, it would be right for this Court to interfere to

avert the failure of justice. In Duli Chand v. Delhi

Administration [1975 (4) SCC 649], Ramniklal Gokuldas & Ors.

v. State of Gujarat[1976 (1) SCC 6], Mst.Dalbir Kaur & Ors.

v. State of Punjab [1976 (4) SCC 158], State of Jammu &

Kashmir v. Hazara Singh & Anr. [AIR 1981 SC 451], Ramanbhai

Naranbhai Patel & Ors. v. State of Gujarat [2000 (1) SCC

358] the scope of the appellate jurisdiction under Article

136 of the Constitution was considered in detail and

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guidelines provided for the exercise of the power. In its

latest judgment in State of Punjab v. Jugraj Singh & Ors.

[JT 2002 (2) SC 147] this Court held:

"It is now well established that this Court does

not, by special leave, convert itself into a court

to review evidence for a third time. However,

where the High Court is shown to have failed in

appreciating the true effect and material change

in the version given by the witnesses, in such a

situation it would not be right for this Court to

affirm such a decision when it occasions a failure

of justice. The power under Article 136 of the

Constitution of India is, no doubt, extraordinary

in amplitude and this Court goes into action only

to avert miscarriage of justice if the existence

of perversity is shown in the impugned judgment.

Unless some serious infirmity or grave failure of

justice is shown, this Court normally refrains

from re-appreciating the matter on appeal by

special leave. The findings of the High Court

have to be judged by the yardstick of reason to

ascertain whether such findings were erroneous,

perverse and resulted in miscarriage of justice.

If the conclusions of the courts below can be

supported by acceptable evidence, the Supreme

Court will not exercise its overriding powers to

interfere with such a decision."

As in the medico-legal report Exh.PE, name of PW1 was

found not mentioned, the High Court presumed that he had not

accompanied the injured. Such an assumption is not

referable to any legal or factual presumption. It is in

evidence that Sukhchain Singh, accompanied by his cousin Jai

Karan and other relatives had taken the injured to the

Hospital. In the report Exh.PE in the column "Name of

relatives and friends", the name of Sukhdev Singh is

mentioned by the Doctor. Omission to mention the names of

other relatives in the said certificate cannot be attributed

to any of the prosecution witnesses. No question is shown

to have been put to PW1 as to his presence or alleged

absence at the time of preparation of medico-legal report

Exh.PE. It is neither the requirement of law nor usually

expected that names of all the relatives of the injured

should be mentioned in the medico-legal report prepared by

the Doctor in his discretion. The mention of the injured

having been beaten by somebody in the Doctor's intimation to

the police station has been used to hold that in fact by

that time the witness did not know the name of any of the

assailants and that the case was a blind murder case. The

intimation given by the Doctor was regarding the admission

of the patient in unconscious position requesting the police

to take necessary action. Mentioning of the names or

holding the inquiry regarding the occurrence was neither the

duty of the Doctor nor usually expected from him. The High

Court further held that as when Bhullan Singh, Assistant

Sub-Inspector (PW5) reached the Hospital at 7.40 a.m., he

could not find PWs1 and 2, it should be presumed that they

had not come with the injured in the hospital and thus were

not eye-witnesses. Such an assumption by the High Court is

also not referable to any legal evidence. No question was

put to PW1 as to where he was at 7.40 a.m. when Assistant

Sub-Inspector Bhullan Singh had come in the police station.

It was not unusual for a brother to search for some good

doctor or be busy in arranging better treatment for his

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injured brother. Jai Karan (PW2) had very specifically

stated "We reached in the Civil Hospital Panipat at about

6.15 a.m.. From 6.15 a.m. to 8.30 a.m. I remained in the

Hospital but during this period I had also gone for my blood

testing in the Hospital itself as it was required by the

Doctor". After admission of the patient in the Hospital if

his relations who were none else than brothers and cousin

were not found standing by the side of the injured, it

cannot be imagined, by any stretch of imagination, that they

actually had not come to the hospital and were telling

lies. Non reporting and non-mentioning the names of the

accused at the police station before 8.30 a.m. is stated to

be a reason to hold that the witnesses had not seen the

occurrence. Such a finding, apparently, appears to be

perverse as it is in the evidence that the doctor had

reported to the police about the admission of the injured in

the hospital in presence of the witnesses which justified

them to pay more attention for the treatment of the injured

and wait for the police to come. The investigating officer

had categorically stated that he did not feel the necessity

of seizing the tractor trolley or the chaff as the same was

not considered to be material evidence in the case. Be that

as it may, the failure of the investigating agency to take

steps which may have been required in strengthening to prove

the guilt, beyond doubt, cannot be made a basis to reject

the prosecution version or the statements of the eye-

witnesses. Similarly, the High Court was not justified in

holding that there did not exist any room where the chaff

was to be stacked. Shri Balak Ram, Draftsman (PW4) in his

deposition in the Court had stated that he had prepared the

site plan Exh.PJ wherein, in addition to one room shown in

Exh.PJ he had seen two more rooms at Point "X" and "X1"

marked in the said Exhibit. What persuaded the court to

hold that the complainant had no room to stack the chaff is

not borne out from the record.

The statement of PW1 could not be rejected only because

a special behaviour was expected of him on account of his

being an advocate. Non mentioning of the fact that he had

not hired a house in the town of Panipat where he was

carrying on practice could not be made a basis for rejecting

his testimony without seeking his explanation. It has come

in evidence that Village Siwah was only 8 kms. away from

Panipat and was located on the GT Road and the witness was

commuting every day.

Learned counsel appearing for the accused then brought

to our notice some alleged improvements and contradictions

in the statements of the prosecution witnesses. The trial

court dealt with those discrepancies and rightly held them

to be minor discrepancies not affecting the merits of the

case. Otherwise also the alleged improvements and

contradictions must be shown with respect to the material

particulars of the case and the occurrence. Every

contradiction or improvement, not directly related to the

occurrence, is no ground to reject the testimony of the

witnesses. The improvement and contradictions, pointed out

by the learned senior advocate have no reference to the

material particulars of the occurrence.

It has been argued in the alternative that the

introduction of lalkara in the FIR was only to attract the

provisions of Section 34 of the Indian Penal Code. We are

not impressed with this argument also. Both the accused are

proved to have inflicted the injuries on the vital part of

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the body of Raj Karan which clearly show their intention.

It is contended that the prosecution version, if accepted,

the nature of the injuries would not show the commission of

the offence punishable under Section 302 of the Indian Penal

Code. At the most accused are stated to have committed the

offence punishable under Section 326 or 304 (II) of the

Indian Penal Code. We are not impressed with this argument

in view of the injuries found on the person of the deceased.

Dr.Dilgulzar Singh, Medical Superintendent of

Civil Hospital (PW3), who conducted the post-mortem on the

dead body of Raj Karan, found the following injuries on his

body:

"1. Stitched wound on the right side of the head

starting 2 inch above the middle of the right

eye-brow going upward and medially, 7 c.m.

long T. shape from the middle of the wound

(stitched extending laterally towards the

right ear 7 c.m. long. There was swelling of

the whole right side of the head up to the

eye lid. Clotted blood was present.

2. Stitched wound just lateral to the occipital

5 c.m. long with swelling around was present.

Clotted blood was present.

3. lacerated wound on the left ear posterior at

a base 1 cm long. Clotted blood was present

in the left ear.

4. Two lacerated wound on the back of right ear

1 c.m. x c.m. each was present. Pinna was

swollen and clotted blood was present.

5. Contusion of the right arm (deltoid region) 4

inch x 1-1/2 inch red in colour and swelling

was present.

On exploration of the skull, there was a big sub

contaneous haematoma present on both side of the

skull. On right side of the skull, anteriorly 1-

1/4 inch above the right ear, there was a

depressed fracture of the skull bone of the size

of 5 inch x 4 inch. The piece of the skull bone

were fractured in multiple pieces and embedded in

the brain matter. Clotted blood was present. The

posterior part of the depressed fracture was

extending as a leniar fracture upto the occiput 4-

1/2 inch in length. Medially the fracture was

extending on left side vertically upto the root of

the left ear canal. Linear in shape and was half

c.m. wide, clotted blood was present. There was a

big sub dural haemotoma on the right side of the

skull. The membrance was lacerated at the

depressed fracture sight. Brain matter was also

lacerated. On left side subdural haemotoma was

present below the fracture sight and the clotted

blood was present. It the left middle cranial

cavity."

According to him the cause of death was injury on the brain

leading to shock and haemorrhage. Injury No.1 and its

impact leaves no doubt in our mind that the accused had

intended to cause the death of the deceased and they shared

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the common intention as both are proved to have given the

blows with lathis which they had brought with them to

inflict the injuries to the deceased. The trial court,

therefore, had rightly held the accused guilty for the

offence of murder punishable under Section 302 IPC. We

are satisfied that in the instant case the High Court

erroneously held that PWs1 and 2 were not the eye-witnesses

and that the occurrence had not taken place in the manner

they had deposed in the court. We are of the opinion that

the trial court had assigned valid and cogent reasons for

concluding that the accused persons had committed the

offence and were guilty.

Both the appeals are allowed and the judgment of

the High Court is set aside. Upholding the judgment of the

trial court, the respondents are convicted under Section 302

IPC and sentenced to life imprisonment besides paying a fine

of Rs.10,000/- each, imposed by the trial court on them. The

amount of fine, when it is realized, shall be paid to the

widow of the deceased in terms of the directions of the

trial court.

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

(R.P. Sethi)

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

(Doraiswamy Raju)

April 24, 2002