AMARJIT SINGHversusSTATE OF HARYANA

                           [201 OJ 1 S.C.R. 572


A                            AMARJIT SINGH
                                        V.
                         STATE OF HARYANA
                   (Criminal Appeal No.739 of 2007)
                         NOVEMBER 18, 2009*
B
      [HARJIT SINGH BEDI AND DR. 8.5. CHAUHAN, JJ.]

         Penal Code, 1860:

c      s.302 - Murder- Conviction - Serious injuries to one of
  the accused - Not explained by prosecution - Held: Though
  every injury is not liable to be explained when the accused
  pleads a defence, but an obligation does lie on the
  prosecution to explain the presence of a serious injury - In
0 the instant case, as the prosecution has not been able to
  present an explanation as to how injuries were suffered by the
  accused and on the contrary his very presence has been
  denied, the courts below were in error in brushing aside this
  serious infirmity in the prosecution case - Conviction and
E sentence of accused set aside - Accused acquitted -
  Evidence - Injuries on accused - Not explained by
  prosecution - Effect.

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 739 of 2007.
F
        From the Judgment & Order dated 20.7.2006 of the High
    Court of Punjab & Haryana at Chandigarh in Criminal Appeal
    No. 46-DB of 2004.

                                       WITH
G
         Criminal Appeal No. 740 of 2007.

         R.S. Cheema, K.B. Sinha, Kanwaljit Kochhar, Kusum
    • Judgment Received on 6.2.2010.
H                                      572
       AMARJIT SINGH v. STATE OF HARYANA                     573


Chaudhary, D.P. Singh, Tanu, Roopansh Purohit, Rajeev Gaur,        A
'Naseem', Kamal Mohan Gupta for the Appearing parties.

     The following Order of the Court was delivered

                            ORDER
                                                                   B
      1. These appeals by way of special leave arise out of the
following facts:-

      1.1. Avatar Singh, accused, since acquitted, had taken an
unauthorised connection from the electricity main line for the C
purpose of energising his tube well situated in village Bassi
about 12 kms. away from Police Station Assandh. On 2nd .July
1998, the officials of the Electricity Department accompanied
by some police officers came to the tube well and removed the
unauthorised line and took the wire away. Avatar Singh D
suspected that Joginder Singh P.W.1, who had a Dera at a very
short distance away, had made the complaint to the Department
which had brought the officers of the Department to his Dera.
Due to this grudge, Amarjit Singh armed with a shot gun, Amrik
Singh and Kashmir Singh all sons of Jarnail Singh attempted
to stop the tractor trolley belonging to Joginder Singh P. W.1, E
while it was being driven to the fields with fertilizer. Nishan Singh
- P.W. 3 son of Mohinder Singh was driving the tractor trolley
of Joginder Singh was also accompanied by Palaram - P.W.
2 son of Fakiria one of Joginder Singh's Siris (crop-sharers).
It appears that as a fall out of this incident two applications were F
filed in Police Station, Assandh by both the groups accusing
each other of having misbehaved in the morning. The same
evening at about 4:00p.m. Joginder Singh - P.W. and his
brother Gurnam Singh deceased who were present at their
Dera in their fields. In the meanwhile Avatar Singh armed with G
a sota, Sher Singh and Amarjit Singh armed with a DBBL gun
each and Avatar Singh with gandasa came to the place in a
tractor. On reaching the Dera, Sher Singh fired a shot with a
DBBL gun on Joginder Singh hitting him on the finger of his
right hand and a second shot hit him on his right thigh. Amarjit H
    574     SUPREME COURT REPORTS                 (2010] 1 S.C.R.


A Singh also fired a shot at Gumam Singh which hit him on his
  chest instantly resulting in his immediate death. Although
  Joginder Singh thereafter attempted to snatch the gun from the
  hands of Sher Singh as a result of which, it broke into two
  pieces. This incident was witnessed by P.W. 2 Pala Ram and
B Nishan Singh - P.W. 3. Joginder Singh was removed in a
  tractor-trolley to the Sant Hospital at Assandh and on ar.count
  of his serious condition was referred to the General Hospital,
  Kamal and was admitted therein. The dead body of Gumam
  Singh was, however, left at the place of incident. Joginder
c Singh's statement, Exhibit PA was recorded in the General
   Hospital, Kamal at about 9:15a.m. on the 4th July, 1998 and
  on its basis, the formal FIR was registered at Police Station,
  Assandh, at 10:30a.m. by Sube Singh - P.W. 5, Inspector of
  Police. The police after investigation did not file a charge sheet
0 against the accused on the plea that the case that had been
  foisted on them was false. Joginder Singh thereupon filed a
  complaint Exhibit PC in the court of the Judicial Magistrate,
  Kamal, against Avtar Singh, Sher Singh, Amarjit Singh, Amrik
  Singh and Kashmir Singh for offences punishable under
  Sections 302/307/148/149 IPC on 16th July, 1998. At the trial,
E the prosecution in support of its case, relied on the evidence
  of Joginder Singh - P.W. 1, an injured witness, Pala Ram -
  P.W. 2, Nishan Singh - P.W. 3 who was an associate of the
  complainants, Dr. Raj Kumar - P.W. 4, Ram Kumar- P.W. 5,
  Dr. Shyam Wadhwa _ P.W. 6 who had carried out the medical
F examination of Joginder Singh and the post mortem on the
  dead body, Naveen Kumar- P.W. 7 and S.K. Makkar- P.W.
  8. The defendants also produced 7 witnesses in defence
  including Dr. Raj Kumar (earlier P.W. 4 now as D.W. 1) to
  depose that he had examined one Gurlal Singh on 4th July,
G 1998 at 6:45p.m. in Primary Health Centre, Assandh and had
  found him seriously injured with a dislocation of the teeth and
  a fracture of the mandible, Sahab Singh - D.W. 2 to prove the
  alibi on Sher Singh, ASI Surjeet Singh - D.W. 3 who deposed
  with regard to the two applications which were said to have
H been filed by the warring parties on the 3rd of July, 1998 after
       AMARJIT SINGH v. STATE OF HARYANA                  575


the incident early that morning Inspector Prem Singh - O.W. 5 A
who had investigated the murder and deposed that on
investigation it had been found that the case was false and as
a consequence thereof a challan had not been filed against the
accused who are now facing prosecution O{l account of the
complaint and D.W. 6 - Gurlal Singh the injured, witness who B
stated that he along with some of the accused\ had been
present in the police station till about 3:00p.m. on the 3rd July,
1995 but on the directions of his father, he had decided to return
home to look after the cattle taking his father's gun along with
him and as he was on his way to the Dera, he saw Joginder c
Singh and Gurnam Singh standing outside armed with lathis
and that as he had got down from the tractor he had been
assaulted by them which resulted in the breaking of his teeth
and mandible and that at this stage he had picked up the gun
from the tractor and shot at Gurnam Singh and Joginder Singh
                                                                   0
in his self-defence. He further stated that notwithstanding the
injuries caused to him Joginder Singh went on wielding lathi
blows breaking the gun into two pieces. He further stated that
after this incident he had reached the police station Assandh
on his tractor and reported the matter to the police and had
ultimately been sent to the Primary Health Centre for his E
medico-legal examination. He further stated that he had been
referred to the General Hospital, Kamal and further to the Post
Graduate Institute of Medical Education and Research, Rohtak
on account of his serious injuries. The defence also produced
D.W. 8 - Dr. Munish Madan, a Lecturer in the Dental College F
of the Post Graduate Institute of Medical Education and
Research, Rohtak, who confirmed the existence of very serious
injuries to the teeth and mandible of Gurlal Singh and that he
had been treated in the Institute for about 2 months.
                                                                  G
      1.2. The trial court, however, relying on the evidence of
P.Ws.1, 2 and 3 convicted all the accused under Section 302/
149 etc. and sentenced them to undergo a sentence of life
imprisonment for murder etc. In reaching its conclusions, the
trial court observed that not only was the prosecution story as   H
    576      SUPREME COURT REPORTS                  (2010] 1 S.C.R.


A given by the complainants fully proved on facts but the defence
   version given by Gurlal Singh was not worthy of belief for the
   primary reason that it was impossible to come to a firm
  conclusion with regard to the fact that the injuries had been
   suffered by Joginder Singh, Gurnam Singh and Gurlal Singh in
B the same incident and the defence story that Gurlal Singh had
  fired two shots in self-defence causing a fatal injury to Gurnam
  Singh and1,Serious injuries to Joginder Singh could not be
  believed ,as Gurtal Singh was physically handicapped and was,
  therefore, not in a position to use his weapon in an effective
c manner. The trial court also concluded the story given by him
  that the gun that he had used had been broken on a persistent
  attack by the opposite party could not.be believed as the injuries
  caused to him were so severe which precluded the possibility
  that he could not have caused the injuries to Joginder Singh
0 and   Gurnam Singh thereafter. The trial court also rejected the
  alibi set forth on behalf of Sher Singh as the evidence was not
  conclusive and it was possible that Sher Singh could have
  committed the crime and then rushed to Ghannori, his place of
  posting which was only about 17 kms. away. The trial court,
E accordingly, accepted the prosecution version in toto.

        1.3. The matter was thereafter taken in appeal by all the
  accused before the High Court. The High Court made very
  significant observations completely upsetting the conclusions
  drawn by the trial court and whereas the trial court had
F expressed its doubt as to the presence of Gurlal Singh at the
  place of the murder and as to the manner under which the
  injuries had been suffered by him, the High Court gave a
  conclusive finding that Gurlal Singh had been present at the
  place of occurrence and had received injuries in the incident
G in which Gurnam Singh had been killed. The High Court,
  however, accepted the evidence of P.Ws. 1,2 and 3 and
  rejected the circumstantial evidence with regard to the breaking
  of the weapon as propounded by the defence and observed
  that in such matters the possibility of false implication could not
H be ruled. The Court then dissected the evidence yet further and
       AMARJIT SINGH v. STATE OF HARYANA                   577


held that the presence of Avtar Singh, Amrik Singh and Kashmir A
Singh had to be ruled out whereas Amarjeet Singh and Sher
Singh had undoubtedly been present as they were the ones
who had caused the injuries to Gurnam Singh and Joginder
Singh. The appeal qua the first three was allowed and
dismissed qua the last two It is in this situation that the matter B
is before us after the grant of special leave.

      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 D
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 E
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 F
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 G
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,
                                                                  H
    578      SUPREME COURT REPORTS               [2010] 1 S.C.R.

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.
D       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
F         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                    579


referred to the fact that the trial court was somewhat uncertain    A
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     B
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
                                                                    0
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         E
    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         F
            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
                                                                    H
    580       SUPREME COURT REPORTS                    [2010) 1 S.C.R.


A                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
B
          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,
c         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
D         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
E         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
F         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."
G
        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
H
       AMARJIT SINGH v. STATE OF HARYANA                    581


case. Equally, the prosecution story that Gurlal Singh being an     A
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      B
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.                                 F

     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.