NISHAN SINGH versus STATE OF PUNJAB

15. Mrs. Manjeet Chawla, Ld. Counsel appearing on behalf of Rachhpal Singh, the appellant in Criminal Appeal No. 326 of 2007, submitted : 1) Having regard to the fact that the appellant was not arrned with any weapon and as he. is said to have snatched the knife from Pargat Singh -II, he cannot be said to have any intention to cause the murder of Resham Singh and, thus, his conviction under Section 302 of the Indian Penal Code is not sustainable. c 2) The statement of the witnesses having been recorded by the investigating officer six hours after the incident, no reliance could have been placed thereupon thereupon by the courts below. 3) All the prosecution witnesses examined in the matter being interested witnesses, the Courts below misdirected themselves by placing explicit reliance on them. 4) The effect of acquittal of Sawinder Singh having not been considered by the Courts below while appreciating the evidence brought on record by the prosecution, the impugned judgment is liable to be set aside.·

16. Mr. Kuldip Singh, learned counsel appearing on behalf of the State, on the other hand, submitted The judgment of acquittal in favour of Sawinder Singh 1. was passed by the learned sessions judge as no evidence could be brought on record against him and inasmuch as the prosecution had established that it was appellant Rachhpal Singh who caused all the injuries upon Resham Singh, there is no infirmity in the impugned judgments. 2. It is incorrect to contend that Say.1arn Singh was not examined .again after summoning of Nishan Singh. A As charges were framed on 30th November 2001 and he was exa1T1ined afresh on 5.9.2003 as PW3; the requirements of sub-section 4 of Section 319 were fully complied with. 3. In any event, keeping in view the provisions contained in Section 465 of the Code of Criminal Procedure, the judgment of conviction should not be reversed, unless a real prejudice is shown to have been suffered by the accused. c 4. Nishan Singh and Pargat Singh having been charged for commission of an offence under Section 302/34 IPC and the same having been established, it was not necessary to prove any specific overt act on the part of each of them. 5. There is nothing to show as to why the evidence of Dilbagh Singh shall not be accepted inasmuch as he suffered a brain injury and was examined by DW2 after three years of the incident.

17. Indisputably, Nishan Singh and Pargat Singh-I were named in the F.l.R. The first informant attributed overt acts to them. They had the motive to commit the offence. Offences were committed one after the other with a view to take revenge.

18. Nishan Singh however was not charge sheeted for F reasons best known to the investigating officer. PW -1 Sawinder Sing h's evidence categorically attributed the role played by him in respect of the death of Hardev Singh and causing injuries to Dilbagh Singh PW 4.

19. Deposition of PW 1 was.recorded on 12.9.2000. After G summoning Nishan Singh in terms of Section 319 of the Code of Criminal Procedure, charges were framed afresh on 30th November, 2001. He was examined in chief again on 5.9.2003 as PW3. It is, therefore, not correct to say that he was not examined in chief afresh. Requirements of sub-section (4) of H SUPREME COURTREPORTS ~ J A section 319 of Code of Criminal Procedure, therefore, have been complied with in this case. Strong reliance has been placed by Mr. Datta on a decision of this Court in Shashikant Singh v. Tarkeshwar Singh and Ors. [(2002) 3 SCR 400]. It was held therein : "The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to -1 f c have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The -safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatory to be commenced afresh and the witnesses re-heard. In short, there has to be a de nova trial against him. The provision of de nova trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not -t:: be sufficient to only tender the witnesses for the cross- examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination on the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since 'I' the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for· his being brought before the Court."

20. In that case, two separate trials were held in the sense that the examination in chief and the cross examination of the prosecution witnesses were over, when the trial restarted. It was in that factual matrix, this court laid down the afore-mentioned proposition of law . Sub-section 4 of Section 319 Cr.PC., however, must be read with the residuary provision contained in of Section 375 thereof. Complaint in regard to non compliance of statutory provisions must be made at the earliest opportunity. When a c judgment is pronounced; a case must be made out that by reason of a procedural irregularity, failure of justice has occurred. Section 465 of the Code of Criminal Procedure seeks to achieve a salutary principle.

21. What would constitute 'failure to justice' came up for D consideration before this Court in State of Madhya Pradesh v. Bhooraji & Ors. [(2001) 7 SCC 679], wherein, inter alia, it was held that: "We conclude that the trial held by the Sessions Court E reaching the judgment impugned before the High Court in appeal was conducted by a court of competent jurisdiction and the same cannot be erased merely on account of a procedural lapse, particularly when the same happened at a time when the law which held the field in the State of Madhya Pradesh was governed by the decision of the Full Bench of the Madhya Pradesh High Court." In Dr MC. Sulkunte v. State of Mysore [AIR 1971 SC 508], this Court held : "It has been emphasized in a number of decisions of this G Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation."

22. In Central Bureau of Investigation v. VK. Sehgal & A Anr. [(1999) 8 SCC 501], it was held: "10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error or irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact "f " occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. c Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court."· It was observed : "11 .. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of providing such a filtering If check is to safeguard public servants from. frivolous or mala fic:le or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties .. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure.'~ It does not appear that even any contention was raised in H that behalf. {See also State of Haryana v. Ram Singh [2002 (1) SCR 208]}. However, in view of the factual matrix obtaining herein, it is not necessary to delve deep into the said question as in this case the statutory requirements have been complied with.

23. The Courts below have clearly noticed the supportive role Pargat Singh-I and Pargat Singh-II. They have proceeded on that basis. Whereas Pargat Singh-II was connected with the first occurrence, the appellant Pargat Singh-I was connected with the third occurrence with which we are concerned herein. c The courts below had not committed any mistake whatsoever in that behalf.

24. The fact that the injured persons were being removed to a hospital in a tractor trolley is not in dispute. It is also not in dispute that as a result of being hit by a shot fired by Nishan D Singh, the tractor dashed into the wall of Jagtar Singh's house and the got damaged. Sudagar Singh who was a Chowkidar was also injured in the incident.

25. Both the appellants herein had been named in the FIR. They were tried together. Evidently, they came at the spot with a common intention. Both of them had weapon in their hands. The prosecution witnesses had to take the injured Dilbagh Singh to the hospital by arranging a mini bus. Whereas Baljit Singh died in the hospital, PW 4 Dilbagh Singh survived .

26. The First Information Report was lodged at 8.30 p.m. by Subeg Singh. One First Information Report was lodged in respect bf all the three incidents: Three murders, as noticed hereinbefore, took place one of after the other. Some other persons also received injuries. When three instances occurred G one after the other, keeping in view the fact that each had a link with the other, it is difficult for us to know that the appellants would be falsely implicated by Subeg Singh whose son was one of the deceaseds.

27. It has not been denied or disputed that Pargat Singh- (2008] 4 S.C.R. I and Nishan Singh had a motive to commit the offence. It is true that Sudagar Singh had stated that he could ·not identify the assailants, but no reliance can be placed on the said statement that the death of Hardev Singh was caused by a gunshot injury is not denied by Sudagar Singh. He was a prosecution witness. He was given up by the prosecution presumably on the basis that he had been won over. Strangely, the Public Prosecutor did not confront him with his earlier statements. It demonstrates how poorly the c prosecution case was conducted.

28. Dilbagh Singh is an injured witness. He has given a complete account of the entire occurrence. We do not see any reason to disbelieve his testimony. He had been put to stringent cross examination. Even no suggestion was made to him that D he could not have witnessed the incidence. If it was within the knowledge of the defence that Dilbagh Singh was not in a position to speak about the occurrence, he should have been accosted therewith. He could have given an explanation. If tiis being carried to the hospital in an injured condition is accepted E and if furthermore it stands established that all injured persons were brought to the hospital together, it is difficult to accept the contention of the learned counsel that PW 4 Dilbagh Singh could not be present at the time when the occurrence took place. In his cross examination, Dilbagh Singh categorically stated that F he was fully conscious at the time of the death of Baljit Singh.

29. OW 2, Dr. Gurmanjit Rai who was examined on behalf of the defence in his deposition stated that he had examined Dilbagh Singh at 5.30 p.m on 2.7.1999 and to the said extent, he corroborated the statements PW1, Rishi Ram and PW2 Dr. G Ashok Chanana.

30. Furthermore, according to DW2, he examined Oilbagh Singh on 2. 7 .1999. How he could depose in regard to the condition of the patient as on 13th June, 1999 is not known. He H declared the injury as grievous only after he received the report 'f • of the radiologist and that of the surgeon. His right upper limb A function was found to have been impaired.

31. Reliance has been placed on Prem Sagar v. Dharambir & Ors. [(2004) 1 SCC 113] by Mr. Datta to contend that Section 34 of the Indian Penal Code is not attracted. We are not in a position to agree with the said submission. Both Pargat Singh-I and Nishan Singh came together; at least one of them armed with a fire arm. One of them exhorted and another fired. It is accepted by the defence that at least one person was killed and two other were injured in the said firing. Evidently, more than one sr.ot was fired. c

32. The question is as to whether common intention was formed for commission of an offence or not and it depends upon the fact of each case. It was in the factual scenario obtained therein, this court in Prem Sagar (Supra) opined that the accused was not proved to be linked in the manner so as to bring the applicability of Section 34 of the Indian Penal Code. The common intention of the accused persons was not found to be present therein, when the incident took place, in the backdrop of the facts of the said case. It was submitted that the court should be slow to interfere with a judgment of acquittal. {See Suresh & Anr. v. State of UP [(2001) 3 SCC 673] followed in Rotash v. State of Rajasthan [2006 (13) SCALE 186]}. Reliance has also been placed on State of Haryana v. Ram Singh [(2002) 1 SCR 208] wherein this Court held : "While it is true that the law is well settled in regard to the issue that in an appeai against conviction for the offence of murder Supreme Court would be rather slow to intervene G in the event of there being a concurrent finding of fact but it is equally settled that in the event the finding, which suffers from the vice of perversity of any fundamental rules or even a definite procedural injustice going to the root of the prosecution case question of the Apex Court being 52-0 slow in intervention would not arise." We have herein proceeded on applying the principles laid down therein.

34. So far as the case of Rachhpal Singh is concerned, it B may be true that no independent witness was examined. But that by itself is not sufficient to disregard the statements of the prosecution witnesses totally. PW3 Swaran Singh and PW 4 Dilbagh Singh were the c eye-witnesses. Both the Ld. Trial Judge as also the High Court considered their depositions in great details. No contention has been raised that the said findings are in any way perverse or not in conformity with the evidences or record.

35. One of the accused may be acquitted as the D prosecution witness might not have attributed any overt act to him. But it is well settled that acquittal of one accused itself would not lead to the conclusion :that the entire prosecution case was false. In Sukhdev Yadav & Ors. v. State of Bihar [(2001) 8 SCC E 86), this Court held : "It is now well-settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence." It was further held by this Court while relying upon appabhai & Anr. v. State of Gujarat [1988 Supp.1 SCC 241 ], that G discrepancies which do not shake the basic version of the prosecution case may be discarded.

36. The deceased Resham Singh suffered as many as four injuries. The folllwing injuries have been shown in the autopsy report: 1) "An oblique incised wound 4 x 1.2 cm with clotted blood was present on the front and right side of chest, 7.00 cm below and medical to right nipple at 4 O' clock position. 2) An oblique incised wound 4.3 x 1.00 cm with clotted blood was present on the left infra scapular region. 3) An oblique incised wound 3 x 1.2 cm with clotted blood was present on the back and left side of the chest, 7.00 cm below and medical to injury no.2. 4) A slashed incised wound 3.5 x 2.8 cm with clotted blood was present on the posterior lateral aspect of right wrist."

37. The injuries were inflicted on the vital parts of the body and some of them were sufficient in the ordinary course to cause death or likely to cause death, Part II of Section 304 of the Indian Penal Code shall have, thus, no application in this case. Rachhpal Singh might have been unarmed, but with a view to inflict injury on the deceased, he snatched the knife which was being carried by Pargat Singh-II. Dilbagh Singh saw the entire occurrence. He examined himself as PW 4. If a person snatches a weapon carried by someone else and brutally kills another, it cannot be said that he did not have any intention to cause death. Whether the accused had any intention to kill the deceased must be judged upon taking into consideration the fact situation obtaining in each case. {See Harendra Nath Mishra & Ors. v. State of Bihar [JT 2002 (10) SC 157] relying upon Suresh (supra); Ramashish Yadav v. State of Bihar [(1999) 8 SCC 555]; Gajjan Singh v. State of Punjab and Pandurang [(1976) 3 SCC 391]; Tukia and Bhil/ia v. The State of Hyderabad [(1955) 1 SCR 1083]}. [See also Rotash (Supra)] .

The matter has been considered in some details by Vivian Bose J, in Virsa Singh v. State of Punjab [AIR 1958 SC 465] wherein it was opined : c "In considering whether the intention was to inflict the injury H c found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there· was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convict, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense; the kind of enquiry that 'twelve good men and true' could readily appreciate and understand." {See also Hari Yadav v. State of Bihar [2007 (14) SCALE 656]} 38. For the reasons above mentioned, there is no merit in these appeals, which are hereby dismissed. E S.K.S. Appeals dismi~sed.