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PETITIONER:

SURJIT SINGH ALIAS GURMIT SINGH

Vs.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT28/04/1992

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

JEEVAN REDDY, B.P. (J)

CITATION:

1992 AIR 1389 1992 SCR (2) 786

1993 SCC Supl. (1) 208 JT 1992 (4) 131

1992 SCALE (1)1020

ACT:

Indian Penal Code, 1860:

Sections 34, 302, 326, 449-Accused setting up plea of

alibi-Burden of proof-Misdescriptions/omissions in FIR-

Effect of-Eye-witnesses account-Taking of-High Court setting

aside acquittal and recording conviction-Validity of.

HEADNOTE:

The appellant, who was in military service, his two

brothers and two others were charged with the offences of

criminal trespass, murdering the Sarpanch of the Village

Panchayat and causing grevious hurts to PW2. Two more ac-

cused were charged for having burnt the wheat bundles be-

longing to the deceased. The Trial Court acquitted the

appellant and two others extending to them the benefit of

doubt. Appellant's two brothers were convicted for offences

under Sections 149, 302/34 IPC and 326/34 IPC. The remaining

two accused were convicted for an offence under section 435

IPC.

On appeal, the High Court acquitted the two accused

convicted under Section 435 IPC and convicted the appellant

and his two brothers for offences under sections 449, 302/34

IPC and 326/34 IPC. The appellant has preferred the present

appeal, against his conviction and sentence of life

imprisonment as also the fine imposed on him.

The appellant contended that he was falsely implicated

in the case; that there was confusion about the names of

the accused; that he left the village in the evening at 4.00

p.m. prior to the alleged commission of offence which took

place at about 10.30 p.m. in the night. Thus the appellant

set up a plea of alibi, stating that he left the village

much prior to the alleged offence in order to join his unit

in the Military he was serving.

Dismissing the appeal, this Courts,

787

HELD : 1. The evidence of the defence witnesses did not

even remotely touch the alibi of the appellant. With regard

to the confusion about the name, the High Court observed

that it would be uncommon and unreasonable for two brothers

to be having the same name. PW2 had deposed that the appel-

lant had read only up to 4th or 5th class whereas his broth-

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er was a Matriculate and that when the appellant sought

recruitment in the Army he gave his brother's name and

utilised the matriculation certificate of his brother. He

also deposed that later when papers for verification had

come to the village the appellant had approached the de-

ceased that he should help him by telling the Enquiry Offi-

cer that he was a Matriculate. This evidence was totally

overlooked by the Trial Judge. The High Court used this

evidence against the appellant. The appellant went with the

assumed name of his brother for the reasons explained by the

prosecution in the statement of PW 2. It is noticeable that

in the appeal against his acquittal, service of the appel-

lant was effected in the name of S alias G through the

Military authorities. The High Court observed that this was

suggestive that in the force he was know as S. The appellant

having taken up a positive plea of alibi, he could prove it

from his travel papers which must have been checked and

suitably endorsed upon by the railway authorities and/or

the Army authorities on his joining his unit. The Appellant

miserably failed to discharge that burden. [792 A-F]

2. The misdescriptions/omissions in the FIR about the

number of shots fired and the absence of injuries on PW2 or

the appellant being not described as a military man is of

lesser importance. First Information Report is not an

encyclopaedia of the entire case and is even not a substan-

tive piece of evidence. It has value, no doubt, but only for

the purpose of corroborating or contradicting the maker.

Here the maker was a young woman who had lost her husband

before her very eyes. The omission or misdescription of

these details in the FIR which was recorded most promptly,

within three hours of the occurrence, would not tell on the

prosecution case or the statements of the eye-witnesses with

regard to the participation of the appellant in the crime.

He had taken a leading and prominent part in spearheading

and committing it. The High Court was right in convicting

the appellant on giving cogent reasons to demolish the

reasoning of the Trial Judge and adding thereto reasons of

its own.

[792 F; 793 A, B]

3. Had the presence of the two witnesses, that is, the

wife and nephew

788

of the deceased at the scene of the occurrence been doubted,

the recovery of the weapon of offence and its connection

with the empty shells recovered at the spot would have

assumed some significance. When the two eye- witnesses are

natural witnesses of the crime, one being the wife of the

deceased, and the other being the nephew of the deceased who

had suffered grevious injuries in the occurrence and was

thus a stamped witness, not much importance is to be at-

tached to this aspect of the case. [793 D, E]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

809 of 1981.

From the Judgment and Order dated 26.3.1981 of the

Punjab and Haryana High Court in Criminal Appeal No. 1289 of

1979.

A.P. Mohanty and S.K. Sabharwal for the Appellant.

Mrs. Amita Gupta and R.S. Suri for the Respondents.

The Judgment of the Court was delivered by

PUNCHHI,J. This appeal is directed against the judgment

and order dated 26.3.1981 of the High Court of Punjab and

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Haryana in Criminal Appeal No. 1289 of 1979 whereby the

acquittal of the appellant was set aside and his conviction

recorded under Section 302/34 IPC for which he was sentenced

to life imprisonment and to pay a fine of Rs. 2000 in

default whereof further rigorous imprisonment for six

months. Besides, conviction was also recorded under Section

449 IPC and under Section 326/34 IPC for which he was sen-

tenced to rigorous imprisonment for four years and three

years, respectively, and to pay fine of Rs. 500 and 200

respectively with default sentences. The sentences were

ordered to run concurrently and the entire fine was ordered

to be paid to Jaswinder Kaur, the widow of the deceased.

The appellant was in military service. On the day of

occurrence, that is, on 13.5.78 he was in his village, Tut

Sher Singh. The prosecution case is that on that day at

10.30 p.m. he along with his brothers Gurmit Singh and Mohan

Singh and two others Sukhraj Pal Singh alias Laddi and

Kulwant Singh alias Kanti of another village scaled over the

wall of the house of Mohinder Singh, deceased, and climbed

to the roof where the deceased and his wife were lying on

their cots. The deceased was an important man of the village

being the Sarpanch of the Village Panchayat as well as being

a Director of Cooperative Bank, Jullundur. The appellant's

789

brothers and two others were said to be idle loafers,jealous

of the position of the deceased. The deceased was an eye-

sore for the accused persons,for off and on he had prevented

them from indulging in their mischievous activities. At the

time of the trespass, the appellant was said to be armed

with a pistol, his brothers armed with Kirpans and their two

companion with gandasis. They jointly raised voices towards

the deceased daring him to run away if he could as he was

not to be left alive that day. The deceased got up from his

cot and stood on his legs. Immediately the appellant fired

two shots from his pistol in quick succession which hit the

deceased. The two brothers and the two companion gave kirpan

and gandasa injuries to the deceased with their respective

weapons. Jaswinder Kaur PW 5, the widow of the deceased,

who dared not come forward by the instinct of self-

preservation, saw the occurrence and raised alarm. Thereupon

the nephew of the deceased Taljil Singh PW 2 and mother of

the deceased Kartar Kaur came on the roof. Taljit Singh PW 2

was also given injuries by the accused persons other than

the appellant. After Taljit Singh and Kartar Kaur had come

to the roof the appellant along with his companion left the

scene of the occurrence. While the deceased was being taken

care of by his family members, they also saw in a closeby

field their wheat bundles valued about Rs.20,000 to 21,000

burning. In this wheat burning two others that is Jagdish

Nahar and Mohinder Ram from two different villages Mudh and

kakar Kalan, respectively, unconnected with the other 5

accused, were accused of having committed the mischief to

burning wheat at the instance of the accused persons.

After the occurrence, the deceased was taken on a

tractor trolly to civil hospital, Shahkot, but he was found

dead by the time he reached there. Thereupon Jaswinder kaur

PW5 accompanied by her father-in-law Lal Singh came to the

police station Shahkot and gave First Information Report at

1.30 a.m. the following day. Thereupon the investigation, as

was expected, commenced and after completion thereof the

appellant and six others afore-referred to were sent for

trial before the Additional Sessions judge, Jullundur.

The learned Trial Judge acquitted the appellant

extending to him the benefit of doubt. The learned Trial

Judge convicted the appellant's two brothers, namely, Gurmit

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Singh and Mohan Singh for offences under Section 449 IPC for

committing house trespass, 302/34 IPC for committing the

murder of Mohinder Singh deceased and under Section 326/34

IPC for causing grevious hurts to Taljit Singh PW 2. For

these charges he acquitted

790

Laddi and Kanti accused. He convicted Mohinder Ram and

Jagdish Nahar accused for offence under Section 435 IPC for

burning the wheat bundles belonging to the deceased. Suit-

able sentences were awarded to these two sets of accused.

Whereas the four convicts preferred appeals to the High

Court of Punjab and Haryana, the state of Punjab correspond-

ingly filed appeals against the acquitted ones including the

appellant. The High Court on reappraisal of the evidence

allowed the state appeal against the appellant maintaining

the conviction of his brothers Gurmit Singh and Mohan Singh.

The High Court also maintained the acquittal of Laddi and

Kanti, co-accused. The High court acquitted, however, Jag-

dish Nahar and Mohinder Ram of the charges under Section 435

IPC. The end result was that the appellant and his two

brothers stood convicted for offences under Section 449,

302/34 IPC and 326/34 IPC. It is the appeal of the appellant

alone which is before us.

The case of appellant at the trial was that he had no

cause to share the grudge of his brothers and other accused

vis-a-vis Mohinder Singh deceased. He pleaded that he was

falsely implicated and was innocent. The appellant's brother

Gurmit Singh pleaded that he had no brother with the name of

Surjit Singh. The appellant too pleaded that he was not

Surjit Singh but was Gurmit Singh. Keeping that apart he set

upon alibi and made the following statement under Section

313 Cr. P.C.:-

"I was on leave from 8.5.78 to 16.5.78. I left the

village at 4 p.m. on 13.5.78. I boarded Janta

Express train from Jullundur for old Delhi and

reached there in the morning time. From there,I

went to New Delhi and I boarded Assam Mail which

left New Delhi at about 9.30 a.m. I reached Dinapur

on 16.5.78 at 12 noon. From there I went by road to

my unit which is at a distance of 100 k.m. and

reaching there is the evening my presence was

marked there in the Military records. As my leave

was to expire on 16.5.78, I could not stay in the

village and could not have reached my unit in time,

unless I had boarded the Assam Mail, which is the

only train for that side and in order to catch

Assam Mail I was bound to catch Janta Express from

Jullundur on 13.5.78 in the evening. I am in the

Army for the last 8-9 years and visit my village,

on rare occasions only for about a month during the

entire year. I do not mix up in the village party.

As I was in the village on day preceding the

791

night of occurrence, I was falsely implicated in

this case. I am never known as Surjit Singh and my

name since my childhood is Gurmit Singh".

The Trial Judge as also the High Court had placed

implicit reliance on the statements of Jaswinder Kaur and

Taljit Singh PWs. The learned Trial Judge acquitted the

appellant on the following grounds:

(i) In the First Information Report Ex. PD Surjit

Singh appellant is not described as a military man;

(ii) The appellant had no specific grudge or enmity

with the deceased as he was living outside the

village;

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(iii) There was confusion about the names. The

investigation and the appellant had at one time or

the other named him as Gurmit Singh.

(iv) The prosecution evidence disclosed that there

were three fire shots but Jaswinder kaur PW 5 in

FIR statement Ex.PD had not mentioned about the

third fire;

(v) In the FIR hurts of Taljit Singh are not

mentioned.

(vi) The recovery of the crime pistol and car-

tridges had been effected from Gurmit Singh, the

brother of the appellant and not from the appel-

lant.

On these particulars the Trial Judge held that there

was great doubt about the participation of the appellant in

the occurrence and held him entitled to the benefit of

doubt.

The High Court turned down all the grounds. The High

court termed the reasoning given by the Trial Judge as

implausible. What weighed with the High Court was the

presence of Surjit Singh in the village up to 13.5.78 till

4.00 p.m., whereafter he allegedly commenced his journey to

join his unit. The High Court viewed that it was for the

appellant to prove that he left the village at 4.00 p.m. on

May 13, 1978 so as to be absent at the time of the occur-

rence and then having reached his unit on May 16,1978. The

appellant had cited one Naib Subedar Waryam Singh as defence

witness but gave him up. The two defence witness cited by

792

the defence were merely formal with regard to the sending of

certain complaints in the office of Senior Superintendent of

Police, Jullundur. The evidence of these defence witnesses

did not even remotely touch the alibi of the appellant. With

regard to the confusion about the name, the High Court

observed that it would be uncommon and unreasonable for two

brothers to be having the same name. The appellant does have

a brother named as Gurmit Singh and yet strangely the appel-

lant assumes his brother's name to be Gurmit Singh. Taljit

Singh PW 2 had deposed that the appellant has read only up

to 4th or 5th class whereas Gurmit Singh was a Matriculate

and that when the appellant sought recruitment in the Army

he gave his name as Gurmit Singh and utilised the matricula-

tion certificate of his brother Gurmit Singh. He also de-

posed that later when papers for verification had come to

the village the appellant had approached Mohinder Singh

deceased that he should help him by telling the Enquiry

Officer that his name was Gurmit Singh and he was a matricu-

late. This evidence was totally overlooked by the Trial

Judge for reasons we cannot understand. The High Court used

this evidence against the appellant. The High Court had gone

on to observe, and in over view rightly, that the appellant

was known as Surjit Singh and was known as such even for the

purpose of Army records. He went with the assumed name

Gurmit Singh, for the reasons explained by the prosecution

in the statement of Taljit Singh PW 2. It is noticeable that

in the appeal against his acquittal, service of the appel-

lant was effected in the name of Surjit Singh alias Gurmit

Singh through the Military authorities. The High Court

observed that this particular was suggestive that in the

force as well he was known as Surjit Singh. The appellant

having taken up a positive plea of alibi, he could prove it

from his travel papers which have been checked and suitably

endorsed upon by the railway authorities and/or the Army

authorities on his joining his unit.The appellant miserably

failed to discharge that burden. In this situation the

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aforesaid misdescription/ omissions in the FIR about the

number of shots fired and the absence of Taljit Singh's

injuries or the appellant being not described as a military

man become of lesser importance. First Information Report is

not an encyclopedia of the entire case and is even not a

substantive piece of evidence. It has value, no doubt, but

only for the purpose of corroborating or contradicting the

maker. Here the maker was a young woman who had lost her

husband before her very eyes. The omission or misdescription

of

793

these details in the FIR which was recorded most

promptly, within three hours of the occurrence, would not

tell on the prosecution case or the statements of the eye-

witnesses with regard to the participation of the appellant

in the crime. He had taken a leading and prominent part in

spearheading and committing it. For these reasons, we are of

the view that the High Court was right in convicting the

appellant on giving cogent reasons to demolish the reasoning

of the Trial Judge and adding thereto reasons of its own.

To be fair to the learned counsel for the appellant, we

may mention that he ventured to argue that the evidence

regarding the matching of the crime bullet shells with the

pistol recovered was not convincing, more so when the .303

pistol, the alleged crime weapon, was recovered from Gurmit

Singh, co-accused. It is noteworthy that Gurmit Singh, co-

accused, stands convicted under the Arms Act for being in

possession of that pistol. This aspect of the case cannot be

a substitute to the eye-witness account or the plea taken by

the appellant. Had the presence of the two witnesses, that

is, Jaswinder kaur PW-5 and Taljit Singh PW-2 at the scene

of the occurrence been doubted, the recovery of the weapon

of offence and its connection with the empty shells recov-

ered at the spot would have assumed some significance. When

the two eye-witness are natural witnesses of the crime, one

being the young wife who would normally be in the company of

the husband at 10.30 p.m. on a summer night and the other

the nephew of the deceased who had suffered grevious in-

juries in the occurrence and was thus a stamped witness, not

much importance is to be attached to this aspect of the

case. The venture is futile.

The end result is that this appeal fails and is hereby

dismissed.

G.N. Appeal dismissed

794