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[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1312 OF 2004
Hari Singh & Anr. ..............Appellants
Vs.
State of Uttar Pradesh .................Respondent
JUDGMENT
HARJIT SINGH BEDI, J.
This appeal arises out of the following facts:
1. The accused Hari Singh of village Suthari was running a
brick kiln on the outskirts of the village. Subsequently, one
Randhir Singh installed another brick kiln nearby. Hari Singh
and his brothers, however, did not allow Randhir Singh to run
his brick kiln effectively and ultimately Randhir Singh sold his
brick kiln to Gulab Singh deceased some three months prior to
the incident. About 15 days prior thereto, Hari Singh and his
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brother Mohar Singh clandestinely removed a large number of
bricks from Gulab Singh’s brick kiln and on being questioned
by him they told him that they would not allow his
kiln to run. On the night intervening 7th and 8th June, 1980 at
about 1.00 a.m. Gulab Singh was asleep in the verandah of
his house when Hari Singh armed with a lathi and Mohar
Singh with a country made pistol entered the house and the
latter fired a shot at Gulab Singh. On hearing the sound,
Prem Pal PW-1, the son of the deceased and Kalu @ Anand
Swarup PW-5, flashed a torch and also raised a cry attracting
Jagdish PW-6 and one Mukhara to the spot. These witnesses
also saw the accused running out of the verandah towards the
lane carrying their weapons. Prem Pal then made his way to
Police Station, Muradnagar at 5.40 a.m. and lodged the FIR at
5.45 a.m. A case under Section 302 was, accordingly,
registered against the accused. Sub-Inspector Hari Raj Singh,
the SHO of Police Station Muradnagar, along with a police
force went to the scene of occurrence whereafter Sub-Inspector
Pooran Singh recorded the inquest proceedings on the dead
body. Sub-Inspector Hari Raj Singh, however, recorded the
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statements of the witnesses and after inspecting the site,
prepared the site plan Ex. Ka.14. He also picked up a blood
stained `khes’ and a bed sheet from the bed where Gulab
Singh had been shot. The dead body was also dispatched for
its post-mortem which was carried out by Dr. M.K.Goel at 4.30
p.m. on the 8th of June 1980 and the examination revealed an
ante-mortem firearm wound of entry 3 cm x 2.5 cm on the
lower part of the left side of the chest with blackening and
tattooing around the wound. The doctor also removed 160
small pellets and three wads from the body. On the
completion of the investigation, the accused were charged for
an offence punishable under Section 302/34 of the IPC and as
they pleaded not guilty, they were brought to trial.
2. The prosecution in support of its case relied primarily on
the evidence of PW1 Prem Pal, PW-5 Kalu and PW-6 Jagdish,
PW-2 Dr. M.K.Goel, who had conducted the autopsy on the
dead body, and of PW-7 Sub-Inspector Hari Raj Singh, the
main investigating officer. The accused when questioned
under Section 313 of the Cr.P.C, denied the allegations
levelled against them and pleaded that they had been
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implicated due to party faction in the village. They also
examined Constable Satya Pal Singh as DW-1 who proved the
report lodged by Randhir Singh on the 25th May 1980 at 1.30
p.m. at Police Station Muradnagar, against Gulab Singh and
one Ramesh under Sections 504 and 506 of the IPC.
3. The trial court relying on the evidence of PW-1 and PW-5
convicted the accused for the offence punishable under
Section 302/34 and sentenced them to imprisonment for life.
An appeal was thereafter taken to the High Court. The High
Court endorsed the testimony of PW’s 1 and 5 as well as of
Jagdish PW-6, the third eye witness, whose testimony had not
been accepted by the trial court, and dismissed the appeal.
The Court observed that though all the three eye witnesses
had been subjected to a gruelling cross-examination they had
withstood the same and not crumbled thereunder. The Court
also found that the suggestion that the accused had been
falsely roped in, was not acceptable for the simple reason that
the FIR had been lodged within a short time in the facts and
circumstances of the case. It was pointed out that the
incident had happened at about 1.00 a.m. of the night
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intervening 7th and 8th of June 1980 and as per the statement
of PW-1, the family members had been completely shattered
by what had happened and that PW-1 had left for Police
Station, Muradnagar 11 km. away on foot and lodged the
report at 5.45 p.m. The Court, accordingly, observed that the
very manner in which the FIR had been lodged spoke volumes
about its authenticity. The Court also rejected the argument
that as the special report had allegedly been delivered late, it
appeared that the FIR had been ante-time, as being without
substance. The appeal was, accordingly, dismissed. The
present appeal was filed by the two accused. During the
pendency of the appeal, however, Mohar Singh has passed
away. The appeal of Mohar Singh is, accordingly, disposed off
as having abated under Section 394 of the Cr.P.C. We are,
accordingly, called upon to examine only the appeal pertaining
to Hari Singh.
4. Mr. Jaspal Singh, the learned senior counsel, has raised
primarily one argument during the hearing of this matter.
He has pointed out that as per the evidence of Prem Pal and
Kalu, PWs., they had been fast asleep at some distance from
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the deceased when the fatal shot had been fired at him and as
the accused had immediately run away into the street, it
appeared that their identification could not have been made.
It has been emphasized that the prosecution story that the
accused had been identified by these two witnesses in the light
of a torch, could not be believed as the site plan prepared by
the ASI did not indicate so and as there was no evidence to
show that any torch had been taken into possession by the
investigating officer. It has also been pleaded that Jagdish
was sleeping in his house some distance away at point “E” in
the site plan and as such it would have been difficult for him
to have got up and to have seen the accused running away
within such a short time.
5. These arguments have been strongly refuted by the
learned counsel for the State. He has been pointed out that
the factum of the torch had been mentioned by Prem Pal not
only in the FIR but even by the other witnesses in their
statements under Section 161 of the Cr.P.C. and merely
because the torch had not been taken into possession by the
ASI would not lead to the inference that no torch had, in fact,
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been available. It has been pleaded that the FIR having been
registered promptly spoke volumes of the prosecution story.
6. We have heard the arguments advanced by the learned
counsel for the parties very carefully. PW-1 has very
categorically stated to the business rivalry that existed
between the accused and the deceased and their conflicting
interests as both the kilns were in close proximity to each
other. It has also come in the prosecution evidence that the
accused had been holding out threats to the deceased and it
appears that the threat had been carried out on the day in
question. We have also perused the site plan Ex.Ka. 14 and
the same is, indeed, revealing. Point “A” in the site plan is the
place where the deceased Gulab Singh had been shot and
killed. Point “BB” is the place where Prem Pal and Kalu PWs.
had been lying asleep. This shows that while running away,
the accused had passed within an arms length of these two
witnesses. The site plan also marks the route that the
accused took while escaping from the murder site and it
shows that after firing the shot at point “A” the two accused
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had skirted and run past point “BB”, across the door of the
residence of Jagdish at point “E” and then to the rasta
adjoining the chabutra of the house of Ram Singh. It is true,
that as per the evidence on record, the night of the murder
was a moonless one but we have no reason to doubt the
testimony of the eye witnesses when they say that they had
identified the accused in the torch light, more particularly as
both the parties belonged to the same village and were well
known to each other. We are of the opinion that merely
because the torch had not been taken into possession by the
ASI would not mean that the statements of the eye witnesses
were not credible. We find, also, that the spontaneity of the
FIR giving all relevant details fortifies the prosecution story.
The prosecution story is that the accused had fired at the
deceased with a country made pistol from a very close range.
The doctor PW-2, who had conducted the post-mortem
examination found one wound of entry about 3 cm x 2.5 cm
with blackening and charring and also recovered 160 pellets
and three wads from inside the dead body. The medical
evidence clearly suggests the use of such a weapon from
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almost point blank range. There is, thus, no merit in the
appeal. It is, accordingly, dismissed.
…………………………….J.
(Harjit Singh Bedi)
…………………………….J.
(Chandramauli Kr.Prasad)
New Delhi,
Dated: December 16, 2010