Paragraph numbers below are the court’s original numbering, recovered from the source text.
2. Several arguments have been raised by Mr. R.S. Cheema and Mr. K.B. Sinha, the learned senior counsel for the appellants. It has been argued that the fact that some incident C had happened on the morning of 2nd July was clear from the statements – Exhibits DE and DD, the two applications that had been filed by the two warring parties in the police station. It has also been submitted that the fact that Amarjeet Singh was indeed in the police station in the evening had been found correct to be in the investigation made by Inspector Prem Singh DW 5 and it was on that basis that the prosecuting agency had declined to file a challan against the accused. It has further been pleaded that there was absolutely no reason whatsoever as to why the alibi given by Sher Singh appellant duly supported by some of the staff in the PSEB office where he stood posted and was residing with his family had been disbelieved as he had been present in the morning at 7:30a.m. on the day of the incident and again at about 3:30p.m. the same afternoon and that it would have been impossible for him to have visited village Bassi, committed the murder and returned to his place of posting at village Ghannori 17 kms. away. It has finally been submitted that in any case there was absolutely no explanation for the injuries that had been suffered by Gurlal Singh and as this onus had not been discharged by the prosecution an inference could rightly be drawn that the defence version was the correct one. For the last submission, Mr. Cheema has placed reliance on Lakshmi Singh v. State of Bihar (1976) 4 sec 394.
3. Mr. Roopansh Purohit, the learned State counsel has, A however, pointed out that there was absolutely no reason to disbelieve the statement of the three prosecution witnesses, more particularly, for the reason that Joginder Singh had been injured and P.W. 2 Pala Ram was an independent witness. He has further submitted that there was no evidence to suggest that B Gurlal Singh had suffered the injuries in the same incident in which Gurmnam Singh had been killed and Joginder Singh had been injured as there was no contemporaneous record to show this fact and further that Gurlal Singh had made absolutely no effort to make a statement to the police giving his version of c the events or after he had reached Assandh on 3rd July, 1998 at 6:20p.m. It has further been pleaded that Gurlal Singh was a handicapped person and it would not have been impossible for him to have fired two shots as suggested by him in his defence.
4. We have heard the learned counsel for the parties in extenso and gone through the record as well.
5. To our mind, the basic issue which would arise in this case is the inference that is to be drawn from the non· E explanation of the injuries of Gurlal Singh. He had first been examined by Dr. Rajinder Kumar, D.W. 1 of the C.H.C., Assandh on 3rd July, 1998 at 6:45p.m. And had found the following injuries:- "2 upper incisors were missing and fresh bleeding was present from the sockets mucosa was congested and the lower jaw teeth were malaligned and were bleeding."
6. He further deposed that the injuries were subject to x- ray at the General Hospital, Kamal at 9:00a.m. on 4th October, G 1998 and the mandible was found fractured and the injuries were all grievous in nature. This evidence is further reinforced by the statement of D.W. – 8 – Dr. Munish Madan of the Post Graduate Institute of Medical Education and Research, Rohtak, who yet again deposed to the very serious nature of injuries of H Gurlal Singh. The learned counsel for the State has, however, AMARJIT SINGH v. STATE OF HARYANA referred to the fact that the trial court was somewhat uncertain about Gurlal Singh's presence at the place of incident but on the contrary we find that the High Court has given a positive finding (contradicting the trial court} that Gurlal Singh was indeed present at the site of murder. We are, therefore, of the opinion that an obligation lay on the prosecution to explain as to how Gurlal Singh received such serious injuries.
It will be seen that P.Ws. 1, 2 and 3 have been categoric in denying any injury to Gurlal and P.W. – Joginder Singh went so far as to deny Gurlal Singh's place of residence although he was living with his father in a Dera only half a kilometre away from his own c Dera. P.W. 3- Nishan Singh, on the other hand, admitted that Gurlal Singh was a resident of the Dera but he denied that any injury had been suffered by him. It is true, as contended by the learned State counsel, that every injury is not liable to be explained when the accused pleads a defence but but contrarily an obligation does lie on the prosecution to explain the presence of a serious injury. In assessing a similar situation, this Court has said in Lakshmi Singh and Others (supra}:- "It seems to us that in a murder case, the non- explanation of the injuries sustained by the accused at about ;the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: · 1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; 2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their G evidence is unreliable; 3. that in case there is a defence version which explains the injuries on the person of the accused c [2010) 1 S.C.R. it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima (surpa) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweights the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises."
7. We are, therefore, of the opinion that as the prosecution has not been able to present an explanation as to how injuries had been suffered by Gurlal Singh and on the contrary his very presence has been denied the ratio of the observations in the above quoted judgment would apply to the facts of the present AMARJIT SINGH v. STATE OF HARYANA case. Equally, the prosecution story that Gurlal Singh being an amputee would have been unable to handle a shotgun, cannot be accepted. Gurlal Singh in his testimony as D.W. – 6 stated that he had lost his left hand in an accident but had been fitted with an artificial one which he could use with dexterity. He emphatically denied that he could not use a gun effectively on account of his handicap. Moreover, experience tells us that even the absence of an arm does not completely make an amputee incapable of using a shot gun.
8. There is yet another circumstance which would, to some C extent, go to the aid of the appellants. Gurlal Singh was prosecuted as a consequence of his own statement for the injuries that he had caused to Gurnam Singh and Joginder Singh. In that case, the present P.Ws. Joginder Singh, Pala Ram and Nishan Singh also appeared as prosecution witnesses but they stuck to the version given in these present D proceedings and disowned any criminal act qua Gurlal Singh as a consequence of the position taken by them, Gurlal Singh too was acquitted by the trial court for the injuries he claimed to have caused to Gurnam Singh and to Joginder Singh. No appeal has been filed by the State challenging the acquittal of E Gurlal Singh.
9. In view of what we have held above, we deem it unnecessary to go into the question of alibi or any other issues raised by Mr. Cheema and Mr. Sinha.
10. We, accordingly, allow these appeals, set aside the conviction of the appellants and order their acquittal. The appellants are stated to be in jail. They shall be released forth with if not required in any other case. R.P. Appeals allowed.