AVTAR SINGHversusSTATE OF HARYANA

                      [2012) 10 S.C.R. 790


A                         AVTAR SINGH
                                v.
                      STATE OF HARYANA
               (Criminal Appeal No. 1475 of 2010)

                       OCTOBER 10, 2012
8
        [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                  IBRAHIM KALIFULLA, JJ.]

       Penal Code, 1860 - ss. 302, 325, 326, 148 and 149 -
C Murder - Common object - Allegation that armed assault by
  accused party on members of the complainant party led to
  death of PW10's father and extensive cut injuries to number
  of other persons - Evidence of injured witnesses, PWs 10, 11
  and 13 - Conviction of accused-appellants - Justification -
D Held: Justified - The whole edifice of the crime related to a
  land dispute between DW2 and PW11 - The incident occurred
  while the accused party was on way to the disputed land in
  question to harvest crop raised by PW11 - The accused party
  was the aggressor- Every member of the accused party must
E have been fully aware that having regard to the fact that
  dangerous weapons were in their possession, and that they
  had an axe to grind against PW-11, there was every likelihood
  of the offence of that magnitude being the ultimate outcome
  - The manner of causing injury on PW10's father also goes
F to show that all of them were determined to ensure that he and
  the other injured persons did not escape from their assault -
  PW10's father was hit on his head and every vital part of the
  body - Chopping of the torso of both his legs was only to
  ensure that he had no way to escape from the gruesome attack
  - When appellants proceeded towards the disputed land with
G arms such as gandasi and kirpans it amply disclosed their
  mindset to deal with the complainant party sternly against
  whom they had a definite grudge relating to the disputed land
  - Interim stay order passed against the accused party (by the
H                               790
        AVTAR SINGH v. STATE OF HARYANA                     791

civil Court in the suit filed by PW11) was extended on that very   A
date, which was a cause for prejudice against the complainant
party - Everyone amongst the accused party was standing at
the spot with a clear mindset to assault the members of the
complainant party - It was a clear case of pre-meditation and
there was common object - Plea of self-defence was wholly          B
a make-believe version - Offence found proved against the
appellants squarely fell u/s.302- Punishment imposed on the
appellants for the said offence as well as the other charges
levelled against them was fully established.

     Witnesses - Large number of witnesses - All witnesses
                                                                   c
need not be examined - Held: Where there were several
persons stated to have witnessed the incident and the
prosecution examined those witnesses who were able to
depose the nature of offence committed more accurately
leaving no room for doubt about the involvement of the             D
accused in the occurrence and the extent of their involvement
with specific overt act and also were able to withstand the
cross-examination by maintaining the sequence and the part
played as originally stated, it would be wholly irrelevant and
unnecessary to multiply the number of witnesses to repeat the      E
same version.

     The prosecution case was that the accused persons
attacked members of the complainant party with various
dangerous weapons thereby causing the death of                     F
PW10's father and serious injuries to number of other
persons. The trial court convicted all the accused under
ss.302, 325, 326, 148 and 149 IPC and sentenced them to
rigorous imprisonment for three years. In appeal, the High
Court acquitted three of the accused, A-1, A-3 and A-10            G
but confirmed the conviction of the other accused (A-2,
A-4 to A-9) i.e. the appellants, and therefore the instant
appeals.

    Dismissing the appeals, the Court
                                                                   H
    792     SUPREME COURT REPORTS               [2012] 10 S.C.R.

A        HELD:1.1. The whole edifice of the crime related to
    a land dispute between DW2 and PW11. According to
    DW-2 at the behest of PW-11 he purchased the property,
    that he had perfected the title over it, yet PW-11, under
    the guise of his continued right to possession was
B   causing hindrance to the ownership of DW-2. As the
    issue was brewing over a considerable length of time,
    prior to the year 2003, that on the fateful date it transpired
    that in the Civil Suit preferred by PW-11, the interim order
    granted earlier in favour of PW-11 by way of stay was
c   extended by the Civil Court. As per the narration of
    events, it was disclosed that the parties returned back to
    their respective homes in the village in the evening while
    PW-10, PW-11 and PW1 O's father were discussil'tg about
    the issue, one uncle of PW-10 arrived there and gave the
    information that the· accused party was proceeding
0
    towards the disputed land with the idea of harvesting the
    crops raised by PW-11. Since there was an order of stay
    existing in favour of PW-11, it was quite apparent that the
    information furnished by uncle of PW10 prompted the
    complainant party to proceed towards the land in
E   question with a view to protect their crops. The said
    conduct displayed by the complainant party who were all
    related was quite natural. Nowhere it was brought out in
    evidence that while they were proceeding towards the
    disputed land they were all armed with any dangerous
F   weapons, except lathis in the hands of two persons as
    stated by PW-11 in his oral evidence. [Paras 8, 9] [805-C-
    H; 806-A-B]
      1.2. A reading of the evidence of PWs-10, 11 and 13
G read along with the version of DW-2 as regards the
  manner of infliction of injuries amply establish to a
  considerable extent the fact about the happening of the
  occurrence on way to the disputed land in question. The
  evidence of the doctor who attended on the injured
H
        AVTAR SINGH v. STATE OF HARYANA                793


witnesses PWs-10, 11 and 13 as well as the other injured      A
persons disclosed that everyone of them suffered cut
injuries with the aid of dangerous weapon such as
gandasa, kirpan and sword. This was the sum and
substance of the manner in which the occurrence took
place where PW10's father was murdered while the other        B
injured persons were inflicted with severe injuries. [Para
10] [806-E-F; 807-A·B]

      2.1. The non-Inclusion of DW-2 in the array of
accused by the prosecution cannot be taken so very
seriously in order to doubt the whole genesis of the case     C
alleged against the appellant and the other accused.
Except referring to the name of DW-2 in the rukka, there
was no specific overt act alleged against him in regard
to his participation in the actual crime of assault or
inflicting of injuries or use of any weapon against either    D
the deceased or any other person. [Para 11] [808-A-B]

     2.2. In order to prove the guilt of the accused, the
prosecution should take earnest effort to place the
material evidence both oral and documentary which             E
satisfactorily and truthfully demonstrate and fully support
the case of the prosecution. Where there were several
persons stated to have witnessed the incident and the
prosecution examined those witnesses who were able to
depose the nature of offence committed more accurately        F
leaving no room for doubt about the involvement of the
accused in the occurrence and the extent of their
involvement with specific overt act and also were able to
withstand the cross-examination by maintaining the
sequence and the part played as originally stated, it will    G
be wholly irrelevant and unnecessary to multiply the
number of witnesses to repeat the same version. [Para
12] [809-B-E]
    Tej Prakash v. The State of Haryana JT 1995 (7) SC 561
- relied on.                                                  H
    794     SUPREME COURT REPORTS             [2012] 10 S.C.R.

A        3. As rightly pointed out by the trial Court as well as
    the High Court, if really the case sought to be pleaded at
    the instance of DW-2 as against the complainant party
    were true and he really suffered any injury at the hands
    of the complainant party, it was not known why he did
B   not pursue his complaint of such a serious nature by
    taking appropriate recourse to law. Though according to
    D\V-2 as well as the doctor who is alleged to have
    examined him who was examined as DW-3, he suffered
    extensive injuries (viz) as many as five, of which one was
C   an incised wound, there is considerable doubt and
    suspicion as regards the version spoken to by both the
    witnesses in particular about the nature of injuries
    sustained and its truthfulness. The Courts below rightly
    did not give credence to the claim of DW-2 as regards the
    injuries alleged to have been sustained by him at the
0
    hand of the complainant party. The whole evidence read
    with the evidence of DW-2 only goes to show that the
    prosecution story as placed before the trial Court which
    was appreciated while finding the appellant guilty of the
    offence alleged against them is fully justified. The role
E   played by the accused in causing the serious injuries on
    the deceased as well as on the other injured witnesses
    and other persons as found proved does not call for any
    interference. [Paras 13, 14] [809-E-H; 810-E, G-H; 811-A]

F      4. The ultimate conclusion of the Courts below in
  holding the accused were squarely responsible and by
  calling them as the party who indulged in the aggression
  cannot be found fault with. The evidence of DW-2 was
  clear to the effect that the persons who accompanied him
G carried gandasi and sottas, that three were holding
  gandasis and three were holding sottas. He also admitted
  in categorical terms that none of the five persons who
  accompanied him received any injuries except himself.
  Therefore, even going by the version of DW-2 himself
H they were armed with dangerous weapons. Therefore,
       AVTAR SINGH v. STATE OF HARYANA                     795

when they proceeded towards the disputed land with                A
arms such as gandasi and kirpans it amply disclosed their
mindset to deal with the complainant party sternly
against whom they had a definite grudge relating to the
land with reference to which the dispute was brewing for
quite a long period of time prior to the date of occurrence.      B
More so, as established before the trial Court, the interim
order passed against them by the Civil Court was
extended on that very date, which was a cause for
prejudice against the complainant party. On the other
hand, the very fact that there were extensive injuries            c
sustained by the complainant party and the death of the
deceased in the process of assault inflicted upon them
only goes to show that the plea of self-defence was
wholly a make believe version which had no legs to stand
and was rightly rejected by trial Court as well as the High       0
Court. [Paras 15, 16] [811-E-H; 812-A-C]

     5. In view of the conclusion that the accused party
was the aggressor and having regard to the possession
of dangerous weapons it was amply demonstrated that
the game play was preplanned to deal with the                     E
complainant party when they were proceeding towards
the disputed land in question. The subsequent conduct
of the appellants in having inflicted the severe injuries
and causing death of PW10's father only go to show that
it was a clear case of pre-meditation. The contention that        F
it was a sudden fight and was without pre-meditation
has, therefore, no basis at all. It is relevant to note that at
least three types of dangerous weapons apart from
Lathis were in the possession of the accused party. The
very fact that the death of PW10's father was due to the          G
cut injuries inflicted upon him and the other injuries as
noted in the body of PWs-10, 11 and 13, as well as, other
injured persons of the complainant party was clear proof
of the fact that the accused party was present at the place
of occurrence, fully prepared to attack the complainant           H
    796     SUPREME COURT REPORTS            [2012) 10 S.C.R.


A party which they were able to successfully carry out. The
  admission of DW-2 that none of the accused party was
  injured also goes to show that everyone of the accused
  party was standing at the spot with a clear mindset to
  assault the members of the complainant party. Therefore,
B it is a futile attempt on the side of the appellants n<>W to
  contend that it was a sudden fight without any pre-
  meditation. For the very same reason the contention that
  in a heat of passion in a group fight the injuries were
  inflicted cannot also be accepted. The further contention
c that the accused party did not act in a cruel manner is
  again a fact contrary to the true state of affairs which
  prevailed at the place of occurrence. Therefore, it was too
  much for the appellants to expect and contend that the
  case would fall under Exception IV to Section 300 IPC.
  The said contention has to be stated only to be rejected.
0
  [Para 18] [812-F-H; 813-A-E]

        6. Even if the accused party had a motive as against
   PW-11 (and riot PW1 O's father) that very fact was
  sufficient enough to bring the action of the accused party
E in having caused injuries on the witnesses and other
  persons as well as the cause for the death of PW10's
  father to squarely rope them in the process of their
  common object. Section 149 IPC provides that if offence
  is committed by a member of an unlawful assembly in
F commission of the object of that assembly then every
  person who at the time of committing of that offence is a
  member of that assembly would be guilty of that offence.
  It is not necessary that there should be preconcert in the
  sense of a meeting of the members of the unlawful
G assembly as to the common object; it is enough if it is
  adopted by all the members and is shared by all of them.
  In order that the case may fall under the first part the
  offence committed must be connected immediately with
  the common object of the unlawful assembly of which the
H
        AVTAR SINGH v. STATE OF HARYANA                  797


accused were members. Even if the offence committed             A
is not in direct prosecution of the common object of the
assembly, it may yet fall under Section 149 if it can be held
that the offence was such as the members knew was
likely to be committed. Therefore, applying the above said
principle, it can be safely held that everyone of the           8
members of the accused party must have been fully
aware that having regard to the fact that dangerous
weapons were in their possession, that they had an axe
to grind against PW-11, that there was every likelihood
of the offence of that magnitude would be the ultimate          c
outcome and the factum of such grave offence ultimately
brought them within the four corners of the said Section
and there was no escape from it. Therefore, the argument
that there was no common object to murder PW10's
father also stands rejected. The manner of causing injury
                                                                0
on the person of PW10's father also goes to show that
all of them were determinative of showing their might by
ensuring that he and other injured persons did not
escape from their assault and PW10's father ultimately
succumbed to the injuries inflicted upon him. The
assailants ensured that the deceased was hit on his head        E
and every vital part of the body and the chopping of the
torso of both the legs was only to ensure that there was
no way to escape for the person from the gruesome
attack. The totality of the manner in which the assailants
acted at the place of occurrence while inflicting the           F
injuries on the deceased as well as others only displayed
their united mind and effort in the fulfillment of their
objective at the spot and, therefore, there was no scope
to individualize the conduct of the assailants in order to
mitigate the gravity of the charges found proved against        G
the appellants. Therefore, the submission that at best A-
4 can alone be found guilty of the offence under Section
302, IPC or under Section 304 Part I while others may be
guilty of the lesser offence falling under Section 323, IPC
                                                                H
    798      SUPREME COURT REPORTS             [2012] 10 S.C.R.


A cannot be accepted. Having regard to the gravamen of
  the charges found proved against the appellants, there
  is no scope to bring it under Section 304 Part I IPC based
  on the submission made on behalf of the appellants.
  [Paras 19, 20] [813-F-H; 814-A-H; 815-A-E]
B
       Mizaji and Anr. v. State of U.P. AIR 1959 SC 572: 1959
  Suppl. SCR 940 - relied on.

      7. The offence found proved against the appellants
  squarely fall under Section 302, IPC and the punishment
C imposed on the appellants for the said offence as well as
  the other charges levelled against them was fully
  established, the conviction and sentence imposed on the
  appellants, therefore, do not call for any interference.
  [Para 21] [815-F-G]
D
                      Case Law Reference:
          JT 1995 (7) SC 561      relied on           Para 12
          1959 Suppl. SCR 940     relied on           Para 19
E       CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
    No. 1475 of 2010.

        From the Judgment & Order dated 27.03.2009 of the High
    Court of Punjab and Haryana at Chandigarh in Criminal Appeal
F   No. 916-DB of 2006.
                                 WITH
    Criminal Appeal No. 1476 of 2010.

      Jaspal Singh, Vipin Gogia, Jaspreet Gogia for the
G Appellant.

         Kamal Mohan Gupta, Gaurav Teotia, Mohd. Zahid Hussain,
    R.V. Kameshwaran for the Respondent.

        The Judgment of the Court was delivered by
H
        AVTAR SINGH v. STATE OF HARYANA                     799


    FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. These                  A
two appeals arise out of the common judgment dated
27.03.2009 passed in Criminal Appeal No.916-08/2006 of the
High Court of Punjab & Haryana at Chandigarh. The second
accused is the appellant in Criminal Appeal No.14 75/2010.
Accused Nos. 4 to 9 are the appellants in Criminal Appeal          B
No.1476 of 2010.

      2. According to the case of prosecution, there was a civil
suit pending as between Hansa Singh (PW-11) and Surjit Singh
S/o Kundan Singh (DW-2) at Samana (Punjab), that there was         C
also an interim order granted by the Civil Court in favour of
Hansa Singh (PW-11) as against Surjit Singh, that after hearing
was over on 09.04.2003 in the Civil Court, the complainant party
returned back home and were present at the house of PW-10
Harmesh Singh s/o Amarjit Singh in the evening. At that time,
one Desa Singh, uncle of Harmesh Singh (PW-10) came and            D
informed that some persons had gathered near the land with
reference to which the litigation was pending in the Court at
Samana and that they might harvest the crops belonging to
Hansa Singh (PW-11 ). On hearing the said information,
Harmesh Singh (PW-10) along with his father the deceased           E
Amarjit Singh, his uncle Hansa Singh, Ujagar Singh s/o
Chuman Singh, Paramjit Singh s/o Surjit Singh, Karnail Singh
s/o Phuman Singh, Surjit Singh s/o Atma Singh, Darshan Singh
s/o Surjeet Singh, Teja Singh s/o Karta Singh, Ranjit Singh s/o
Phuman Singh all residents of Bhatian village proceeded            F
towards the field of Hansa Singh at about 7.30 p.m., that when
they reached the bandh of Bhatian Dam near the lands of
Darshan Singh, the accused, namely, Kirpal Singh, Raminder
Singh s/o Arjun Singh, Mitt Singh, Resham Singh with swords
in their hands, Balbir Singh, Jagtar Singh, Fateh Singh armed      G
with gandasis, Raghbir Singh, Avtar Singh armed with barchhis
all residents of Dera Amritsaria, Shiv Majra and Kulwant Singh
s/o Surjit Singh also with a sword rushed towards them raising
a lalkara, that Kirpal Singh gave a sword blow upon the head
                                                                   H
    800      SUPREME COURT REPORTS                [2012) 10 S.C.R.


A   of Amarjit Singh, father of Harmesh Singh (PW-10) while
    Raminder Singh gave a blow of sword on the left arm of the
    deceased Amarjit Singh and Kulwant Sfngh attacked the
    deceased on his feet and Balbir Singh, Jagtar Singh and Fateh
    Singh also attacked the deceased with their weapons. Raghbir
B   Singh with his barchhi, Mitt Singh with his sword, Resham Singh
    also with a sword and Avtar Singh with a barchhi attacked
    Paramjit Singh, Ujagar Singh, Surjit Singh, Hansa Singh and
    Karnail Singh and inflicted injuries upon them. Due to the
    injuries the deceased Amarjit Singh fell down, that when the
C   complainant went running towards the place of occurrence, the
    accused party fled away from the spot with their respective
    weapons. The deceased was stated to have been taken to the
    civil hospital where he was declared dead by the doctor. The
    other injured persons were also treated at the very same
    hospital, and that the statement of PW-10 was recorded at
0
    10.35 p.m. which was forwarded to the police station at PHG,
    Guhla which came to be registered as FIR No. 51 dated
    09.04.2003. Thereafter PW-15 Sub-Inspector took up the
    investigation, inspected the place of occurrence recorded the
    statement of witnesses, collected the opinion of doctors,
E   prepared the draft sketch, collected blood stained earth from
    the place of occurrence, took steps for the arrest of the accused
    and based on the admissible portion of their confessional
    statement recovered the weapons and filed the final report
    before the Court. The case was committed to the Court of
F   Sessions where the appellants along with three other accused
    came to be charge sheeted for the offences punishable under
    Sections 148, 302, 326, 325, 324,323 read with Section 149
    IPC.

G        3. On the side of the prosecution as many as 16 witnesses
    were examined and 87 Exhibits were marked. In the 313
    questioning, the accused denied all the allegations against
    them. DWs-1 to 7 were examined on the defence side. Based
    on the evidence placed before the trial Court, all the accused
H
       AVTAR SINGH v. STATE OF HARYANA                        801
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
 were found guilty of the offences alleged against them and they      A
 were convicted and sentenced to rigorous imprisonment for six
 months and pay a fine of Rs.1000/- each for the offences under
 Section 148 IPC and in default of payment of fine to undergo
'simple imprisonment for a period of two months each, life
 imprisonment for each for the offence under Section 302 IPC,         B
 RI for three years and to pay fine of Rs.2000/- each and in
 default of payment of fine to undergo simple imprisonment for
 a period of three months for the offence under Section 326 IPC,
 rigorous imprisonment for a period of two years along with a
 fine of Rs.2000/- each and in default to undergo simple              c
 imprisonment for a period of two months each and for the
 offence under Section 325 IPC rigorous imprisonment for a
 period of one year along with a fine of Rs.2000/- each and in
 default to undergo simple imprisonment for a period of two
 months each. All the sentences were to run concurrently.
                                                                      D
     4. Aggrieved by the conviction and sentence imposed, all
the appellants preferred an appeal and the High Court while
confirming the conviction and sentence imposed on the
appellants held that the offence alleged against Raghbir (A 1),
Mitt Singh (A-3) and Resham Singh (A-10) was doubtful and             E
on that ground acquitted them of all the charges levelled against
them. Being aggrieved of the above conviction and sentence
imposed on the appellants and the confirmation of the same
by the High Court, the appellants have come forward with this
appeal.                                                               F

     5. Learned counsel at the very outset fairly submitted that
the appellants go along with the story of the prosecution to
considerable extent in the sense that the filing of the Civil Suit
by PW-11 as against Surjit Singh in the Court at Samana was           G
true, that it related to the lands in village Marori, that the suit
was admittedly pending on the date of occurrence, namely,
09.04.2003, that on that evening the occurrence took place.
Learned counsel also contended that the presence of three of
the accused as well as Surjit Singh at the place of occurrence        H
    802      SUPREME COURT REPORTS                 [2012] 10 S.C.R.

A was true. The said three accused were Kirpal Singh (A-4),
  Raminder Singh (A-5) and Kulwant Singh (A-9). Learned
  counsel would, however, strongly urge that the prosecution
  tampered with the records inasmuch as in the complaint itself,
  which was preferred by PW-10, there was a specific reference
B to the presence of Surjit Singh, nevertheless there was no
  reference to him in the FIR and he was not charge-sheeted and
  the injuries sustained by him were not specifically explained.
  According to the learned Senior counsel the Civil Suit preferred
  by PW-11 ended in a failure, that the name of Surjit Singh (DW-
C 2) was duly recorded in the revenue records as owner of the
  lands in question and that the accused party were the sufferers
  at the hands of the complainant party and though a complaint
  was preferred at the instance of Surjit Singh (DW-2), the
  prosecution failed to take appropriate action in that regard.

D         6. According to learned Senior counsel, the accused party
    when tried to defend themselves from the attack of the
    complainant party they might have suffered the injuries and the
     prosecution failed to project the case in the proper direction.
     By referring to the non-examination of the other injured persons,
E    namely, Jagtar Singh, Paramjit Singh, Surjit Singh and Karnail
    Singh, the learned senior counsel submitted that there was not
    enough evidence to support the case of the prosecution.
    Learned senior counsel argued that when Harmesh Singh (PW-
    10) met Investigation officer PW-15 at the hospital at 9 p.m.
F   when he was by the side of the dead body, there was no proper
    explanation for the registration of the FIR after 1 hour and 35
    minutes, inasmuch as, the police station is just across the
    hospital. Learned Senior counsel also contended that when
    there was no reference to the name of the accused, namely,
G   Raghbir Singh (A-1), Mitt Singh (A-3) and Resham Singh (A-
    10) in the record and specific reference to Surjit Singh (DW-2)
    the inclusion of A-1, A-3 and A-10 in the FIR and non-arraying
    of DW-2 as the accused would only go to show that it is a clear
    case of tampering of the records and consequently the case
H   of the prosecution should not be believed. Learned senior
       AVTAR SINGH v. STATE OF HARYANA                      803
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
counsel ultimately submitted that it was a sudden fight without    A
any pre-meditation, that in a group clash there were 11 persons
on the side of the complainant party and six on the side of
accused party in a heat of passion and as there was no cruel
attack and in the circumstances when the above factors were
proved or at least probabilized there is a great doubt whether     B
Section 149 would apply. The learned Senior counsel would
contend that there was no pre-meditation and there was no
motive and if at all there was any motive, it might be against
PW-11 while the deceased Amarjit Singh was totally
unconnected to the dispute relating to the land and any attack     c
on the said deceased Amarjit was so sudden, there was no
common object in the alleged murder of the deceased Amarjit
Singh. As far as the injuries caused on others are concerned,
it was contended that those injuries were all minor injuries and
in the circumstances, the conviction could at best be for an
                                                                   0
offence under Section 304 Part I IPC as against Kirpal Singh
(A-4) and under Section 323, IPC as against others. Learned
senior counsel would, therefore, contend that whatever
sentence has been suffered by the appellants would be
sufficient punishment and they are entitled to be released
                                                                   E
forthwith.

       7. As against the above submissions learned counsel for
the State pointed out that the names of Raghbir Singh (A-1),
Mitt Singh (A-3), Resham Singh (A-10) do find a place in the
record as could be seen from Page 3 Volume Ill, that rukka was     F
written at 10.30 p.m. and FIR was registered at 10.35 p.m. and,
therefore, there was no question of false case or any delay in
the registration of the FIR. The learned counsel drew our
attention to the order of the Civil Court extending the stay on
09.04.2003 available at pages 207 to 213 of the original           G
records to contend that the dispute with regard to the land and
its right of possession was very much in controversy on the date
of occurrence as between the parties and as per the version
of PW-10 the issue relating to the land was as between his
uncle PW11 and Surjit Singh who were fighting for the land in      H
    804      SUPREME COURT REPORTS                [2012] 10 S.C.R.

A the Civil Court and the deceased Amarjit Singh being the father
  of Harmesh Singh (PW-10) was closely related to Hansa Singh
   (PW-11) and consequently he was also fully interested in the
  claim of Hansa Singh (PW-11) over the land in question and
  that the submission of the counsel for the appellai:it to the
B contrary cannot, therefore, be accepted. Learned counsel for
  the State contended that immediately after the occurrence at
  7.30 p.m. the deceased was taken to the hospital where he was
  declared dead by the doctor and the version found in the rukka
  was found in the FIR and, therefore, there was no question of
c any falsification in the case of the prosecution. Learned counsel
  submitted that the case of the prosecution was supported by
  the injured eye witnesses and, therefore, it was not necessary
  for the prosecution to multiply witness when the eye witnesses
  fully supported the case of the prosecution. It was, therefore,
  contended that the non-examination of Desa Singh, the uncle
0
  of Harmesh Singh (PW-10) who gave the information that the
  accused party were proceeding towards the disputed land with
  an idea to harvest the crops never caused any dent in the case
  of the prosecution. In other words, according to the learned
  counsel even in the absence of Desa Singh's evidence, the
E case of the prosecution stood proved. Learned counsel further
  contended that the injuries inflicted upon the deceased as found
  proved based on the evidence of the doctor in the post mortem
  report established the intention of the accused to cause the
  death of the deceased and the injuries sustained by others were
F also severe though they survived the attack. Learned counsel
  pointed out that none of the accused party sustained any
  injuries and, therefore, the theory of private defence was a futile
  stand. According to the learned counsel, the complainant party
  were unarmed while the accused were armed heavily, that the
G complainant party were not the aggressors while the accused
  party were found to be aggressors by the Courts below was
  true and in those circumstances when the plea of self defence
  failed, the charge under Sections 148 and 149, IPC stood fully
  proved. He also contended that the very fact that the appellants
H were armed with deadly weapons and caused the death of the
        AVTAR SINGH v. STATE OF HARYANA                        805
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

deceased, the offence under Sections 148 and 149 were made            A
out and there was no requirement of pre-medication and pre-
planning for the offence under Sections 148 and 149 to be
made out. The common object as made out on the spot was
sufficient to support the conviction imposed on the appellants
for the offence under Section 302 IPC as well as under Sections       B
323, 324 and 325 read with Sections 148 and 149 IPC. The
learned counsel, therefore, contended that no interference is
called for.

      8. Having heard learned counsel for the appellant as well       C
as counsel for the State and having bestowed our serious
consideration to the judgment impugned in these appeals, as
well as, that of the trial Court and the material papers placed
before us, at the outset, when we examine the whole edifice of
the crime, we find that it related to the disputed land situated
in village Marori (Punjab) as between Surjit Singh (DW-2) and         D
Hansa Singh (PW-11 ). According to DW-2 at the behest of PW-
 11 he purchased the property, that he has perfected the title
over it, yet PW-11, under the guise of his continued right to
possession was causing hindrance to the ownership of DW-2.
As the issue was brewing over a considerable length of time,          E
prior to the year 2003, that on the fateful date it transpired that
in the Civil Suit preferred by PW-11 in the Court of Samana,
the interim order granted earlier in favour of PW-11 by way of
stay was extended by the Civil Court. As per the narration of
events, it was disclosed that the parties returned back to their      F
respective homes in the village in the evening while Harmesh
Singh (PW-10), Hansa Singh (PW-11) and the deceased
Amartjit Singh were discussing about the issue, one Desa
Singh, the uncle of Harmesh Singh (PW-10) arrived there and
gave the information that the accused party was proceeding            G
towards the disputed land with the idea of harvesting the crops
raised by Hansa Singh (PW-11 ). Since there was an order of
stay existing in favour of PW-11, it was quite apparent that the
information fu'rnished by Desa Singh prompted the complainant
                                                                      H
    806      S)JPREME COURT REPORTS               [2012] 10 S.C.R.


A   party to proceed towards the land in question with a view to
    protect their crops.

        9. The said conduct displayed by the complainant party
  who were all related was quite natural. Nowhere it was brought
  out in evidence that while they were proceeding towards the
8
  disputed land they were all armed with any dangerous weapons,
  except lathis in the hands of Teja Singh and Ranjit Singh as
  stated by PW-11 in his oral evidence. On the other hand, even
  according to Surjit Singh, DW-2 he along with his son Kulwant
  Singh and other son Tarsem Singh, Amar Singh, cousin Kirpal
C Singh and other accused were going towards the said land and
  thereby admitted the factum of the correctness of the
  information alleged to have been received by the complainant
  party about their proceeding towards the land for harvesting the
  crops. He further went on to depose thatwhen they had gone
D on Killa towards the West through the bandh, the complainant
  party pounced upon the whole lot of them but caused injuries
  only to him. There is further admission 19 the effect that their
  party also caused injuries to the complaimJnt party with the rider
  that such causing of injuries was by way of self defence. He
E fairly admitted that while he recei\(_ed lot of injuries, the
  complainant party also received injuries.

         10. A reading of the evidence of PWs-10, 11 and 13 read
  along with the version of DW-2 as regards the manner of
F inflicti()n of injuries amply establish to a considerable extent the
  fact about the happening of the occurrence on the way to the
  disputed land in question near the bandh apparently referring
  to Bhatian bandh which has been specifically mentioned by the
  prosecution witnesses. While on the one hand, according to the
G prosecution, the complainant party was proceeding towards the
  land with a view to protect the crops from being harvested by
  the accused party, as per the version of DW-2, at the point
  where both the parties met at Bhatian bandh, a clash occurred
  in which casualties were the death of the deceased Amarjit
  Singh apart from injuries sustained by Hansa Singh (PW-11),
H
       AVTAR SINGH v. STATE OF HARYANA                    807
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Jagtar Singh, Paramjit Singh Surjit Singh S/o Atma Ram,          A
Karnail Singh and Harmesh Singh son of the deceased Amarjit
Singh. The evidence of the doctor who attended on the injured
witnesses PWs-10, 11 and 13 as well as the other injured
persons disclosed that everyone of them suffered cut injuries
with the aid of dangerous weapon such as gandasa, kirpan and     B
sword. This was the sum and substance of the manner in which
the occurrence took place where Amarjit Singh was murdered
while the other injured persons were inflicted with severe
injuries. In that process, none of the assailants suffered any
injuries except DW-2 whose grievance was quite independent       c
of the genesis of the crime alleged against the appellants.

       11. Learned counsel for the appellant in the forefront
submitted that having regard to the specific reference made in
the rukka about the presence of Surjit Singh but yet not being
made a party to the crime and non-consideration of the D
grievance of the said Surjit Singh with reference to the extent
of injuries sustained by him which according to him were
 inflicted upon him by the complainant party, the prosecution
case was not truthful, tampering of the whole case with a view
to pin down the appellants and the other accused by fabricating E
the evidence. Learned counsel for the State in his submission,
however, pointed out that there could not have been any false
case fastened on the appellants inasmuch as the rukka which
was prepared at 10.30 p.m. at the hospital was received at the
police station and thereafter the law was set in motion by F
registering the FIR without any loss of time. According to
learned counsel, the rukka was written at 10.30 p.m. and the
FIR was registered at 10.35 p.m. wherein the entire allegations
brought out in the rukka were duly carried out and in the said
circumstances, there was no basis at all for submission made G
on behalf of the appellants alleging false case foisted against
the appellant. We find force in the said submission of learned
counsel for the State. As far as non-inclusion of Surjit Singh
(DW-2) as an accused or as a witness is concerned, though
in the first blush, it may appear as though some deliberate H
    808       SUPREME COURT REPORTS                  (2012] 10 S.C.R.

A attempt was made at the instance of the prosecution to
  suppress certain vital factors, on a close scrutiny, we find that
  except referring to the name of Surjit Singh in the rukka, there
  was no specific overt act alleged against him in regard to his
  participation in the actual crime of assault or inflicting of injuries
B or use of any weapon against either the deceased or any other
  person. Therefore, the non-inclusion of Surjit Singh in the array
  of accused by the prosecution cannot be taken so very seriously
  in order to doubt the whole genesis of the case alleged against
  the appellant and the other accused.
c       12. Learned counsel further submitted that though the
  prosecution would claim injuries on several persons of the
  complainant party, the other persons who were stated to have
  been injured or were present at the place of occurrence were
  not examined. In this context, it will be relevant to refer to the
D decision of this Court reported in Tej Prakash v. The State of
  Haryana [JT 1995 (7) SC 561] wherein this Court held that all
  the witnesses of the prosecution may not be called and it is
  sufficient if witnesses who were essential to the unfolding of the
  narrative on which the prosecution is based must be called by
E the prosecution. The legal position has been stated in
  paragraph 18 as under:

          "18. In support of his contention that serious prejudice was
          caused to the appellant by non-examination of Phool Singh
F         who, had been cited by the prosecution as one of the
          witness, Mr. Ganesh relied upon Stephen Senivaratne v.
          The King, AIR 1936 P.C. 289, Habeeb Mohammad v. The
          State of Hyderabad, 1954 (5) SCR 475 and the State of
          UP and another v. Jaggo Alias Jagdish and others 1971
          (2) SCC-42. The aforesaid decisions can be of little
G
          assistance to the appellant in the present case. What was
          held by the Privy Council and this Court was that
          witnesses who were essential to the unfolding of the
          narrative on which the prosecution is based must be
          called by the prosecution whether the effect of their
H
       AVTAR SINGH v. STATE OF HARYANA                         809
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
     testimony is for or against the case for the prosecution         A
     and that failure to examine such a witness might affect a
     fair trial. It was a/so observed that all the witnesses of the
     prosecution need not be called. In the present case, the
     witnesses who were essential to the unfolding of the
     narrative had been examined."                                    B

                                              (Emphasis added)

      The law on this aspect can be succinctly stated to the
effect that in order to prove the guilt of the accused, the
prosecution should take earnest effort to place the material          C
evidence both oral and documentary which satisfactorily and
truthfulfy demonstrate and fully support the case of the
prosecution. Where there were several persons stated to have
witnessed the incident and the prosecution examined those
witnesses who were able to depose the nature of offence               D
committed more accurately leaving no room for doubt about the
involvement of the accused in the occurrence and the extent of
their involvement with specific overt act and also were able to
withstand the cross-examination by maintaining the sequence
and the part played as originally stated, it will be wholly           E
irrelevant and unnecessary to multiply the number of witnesses
to repeat the same version.

      13. As rightly pointed out by the trial Court as well as the
High Court, if really the case sought to be pleaded at the
instance of DW-2 as against the complainant party were true           F
and he really suffered any injury at the hands of the complainant
party, it was not known why he did not pursue his complaint of
such a serious nature by taking appropriate recourse to law.
Though according to DW-2 as well as the doctor who is alleged
to have examined him who was examined as DW-3, he                     G
suffered extensive injuries (viz) as many as five, of which one
was an incised wound, we find considerable doubt and
suspicion as regards the version spoken to by both the
witnesses in particular about the nature of injuries sustained and
its truthfulness. We say so because admittedly while the              H
    810      SUPREME COURT REPORTS                 [2012) 10 S.C.R.


A   occurrence had taken place on 09.04.2003 between 7 to 7.30
    p.m. according to the doctor (viz) DW-3, DW-2 approached the
    hospital at Guhla only at 4.10 p.m. on 10.04.2003 where he
    stated to have subjected himself for medical examination. DW-
    3 in his evidence admitted that on 10.04.2003 he was posted
B   at PHC, Guhla on emergency duty. The photocopy of MLR is
    Exhibit DX along with X-ray dated 12.04.2003 by way of Exhibit
    DA and intimation alleged to have been sent to Guhla Police
    station on 10.04.2003 as Exhibit DY placed before the Court
    to support the claim of medical evidence. In the cross
C   examination, DW-3 tacitly admitted that he had no document
    to show that he was on emergency duty at Guhla hospital on
    10.04.2003. He, however, claimed that the assignment of duty
    by way of roster would be available in the office of SMO Guhla
    but no steps were taken at the instance of DW-2 or DW-3 to
D   exhibit the said document in order to show that DW-3 was
    really on duty on 10.04.2003 at PHC Guhla which was not his
    regular place of duty as a doctor. Therefore, the cumulative
    consideration of the factum of DW-2 stated to have gone to the
    hospital only on the next day evening, namely, 10.04.2003 at
    4.10 p.m. the extent of doubt about the factum of such medical
E   examination held on the person of DW-2 by DW-3 rightly
    persuaded the Courts below not to give credence to the claim
    of DW-2 as regards the injuries alleged to have been sustained
    by him at the hand of the complainant party. Therefore, the
    submission made on behalf of the appellants by making
F   reference to the said factor in order to doubt the case of the
    prosecution to hold that the whole case was fabricated by
    tempering the records does not appeal to this Court.

        14. Once we steer clear of the said hurdle relating to the
G case projected against the appellants and the other accused
  and when we see the whole evidence read with the evidence
  of DW-2 himself, it only goes to show that the prosecution story
  as placed before the trial Court which was appreciated while
  finding the appellant guilty of the offence alleged against them
H is fully justified. In the result, therefore, the role played by the
       AVTAR SINGH v. STATE OF HARYANA                       811
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
accused in causing the serious injuries on the deceased as well      A
as on the other injured witnesses and other persons as found
proved does not call for any interference.

      15. If once that conclusion is irresistible, the only other
question to be considered is the plea of self-defence which was      8
argued on behalf of the appellant. In this context, the conclusion
of the trial Court in holding that it was the accused party who
had attacked the complainant party and thereby the complainant
party cannot be held to be aggressors was perfectly justified.
The trial Court has also noted that the issue was relating to the    C
land situated at place Marori. The trial Court also noted that
when the two groups happened to clash and from among the
two groups, the members of the group of the complainant party
were only the sufferers inasmuch as several of them sustained
injuries and everyone of them suffered cut injuries which injuries
were demonstrated before the Court by the medical evidence           D
in uncontroverted terms that they were caused by either gandasi
or kirpan or sword and the injuries sustained by the deceased
Amarjit Singh which was the cause for his death as opined by
the medical evidence while at the same time none of the
persons in the accused party sustained any injury, the ultimate      E
conclusion of the Court below in holding the accused were
squarely responsible anc;f by calling them as. the party who
indulged in the aggression cannot be found fault with. The
evidence of DW-2 was clear to the effect that the persons who
accompanied him carried gandasi and sottas, that three were          F
holding gandasis and three were holding sottas. He also
admitted in categorical terms that none of the five persons who
accompanied him received any injuries except himself.
Therefore, even going by the version of DW-2 himself they were
armed with dangerous weapons. Therefore, when they                   G
proceeded towards the disputed land with arms such as
gandasi and kirpans it amply c:fisc/osed their mindset to deal
with the complainant party sternly against Whom they had a
definite grudge relating to the land with reference to which the
dispute was brewing for quite a long period of time prior to the     H
..       812      SUPREME COURT REPORTS               [2012] 10 S.C.R.


     A date of occurrence, namely, 09.04.2003. More so, as
       established before the trial Court, the interim order passed
       against them by the Civil Court was extended on that very date,
       namely, 09.04.2003 which was a cause for prejudice against
       the complainant party.
     B
             16. On the other hand, the very fact that there were
       extensive injuries sustained by the complainant party and the
       death of the deceased in the process of assault inflicted upon
       them only goes to show that the plea of self-defence was wholly
       a make a belief version which had no legs to stand and was
     C rightly rejected by trial Court as well as the High Court. We,
       therefore, do not find any substance in the said submission of
       the learned counsel.

             17. Learned counsel was stressing to a very great extent
     D that it is a case of extending self-defence and, therefore, the
       case would fall under first part of 304, that Section 149, IPC
       would not apply to any of the appellants while they may be liable
       for their individual offences.

     E        18. We have considered the plea of self-defence in detail
       and have found that there was no acceptable basis for the said
       claim and once the theory of self-defence stands rejected, we
       find no scope to apply the submission that the case would fall
       under Section 304 Part I and that too exclusively as against A-
     F 4 Kirpal Singh alone and not others. Having regard to our
       conclusion that the accused party was the aggressor and
       having regard to the possession of dangerous weapons it was
       amply demonstrated that the game play was preplanned to deal
       with the complainant party when they were proceeding towards
       the disputed land in question while meeting them at the bandh
     G at Bhatian. The subsequent conduct of the appellants in having
       inflicted the severe injuries and causing death of the deceased
       Amarjit Singh only go to show that it was a clear case of pre-
       meditation. The contention that it was a sudden fight and was
       without pre-meditation has, therefore, no basis at all. It is
     H relevant to note that at least three types of dangerous weapons
       AVTAR SINGH v. STATE OF HARYANA                       813
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
apart from Lathis were in the possession of the accused party.       A
The very fact that the death of the deceased Amarjit Singh was
due to the cut injuries inflicted upon him and the other injuries
as noted in the body of PWs-10, 11 and 13, as well as, other
injured persons of the complainant party was clear proof of the
fact that the accused party was present at the place of              B
occurrence, namely, the Bhatian bandh fully prepared to attack
the complainant party which they were able to successfully carry
out. The admission of DW-2 that none of the accused party was
injured also goes to show that everyone of the accused party
was standing at the spot with a clear mindset to assaultthe          c
members of the complainant party. Therefore, it is a futile
attempt on the side of the appellants now to contend that it was
a sudden fight without any pre-meditation. For the very_ same
reason the contention that in a heat of passion in a group fight
the injuries were inflicted cannot also be accepted. The further
                                                                     0
contention that the accused party did not act in a cruel manner
is again a fact contrary to the true state of affairs which
prevailed at the place of occurrence. Therefore, it was too much
for the appellants to expect and contend that the case would
fall under Exception IV to Section 300 IPC. The said contention
has to be stated only to be rejected.                                E

     19. Once the claim of absence of pre-meditation is
rejected, only other submission was that the appellants, if at all
they were aggrieved, it was only against PW-11 Hansa Singh
and the deceased Amarjit Singh unfortunately fell a prey in the      F
process and, therefore, there was no common object involved
in order to attract Section 149, IPC. Again this was a
submission which was one in desperation. Even going by the
submission of the learned counsel if the accused party had a
motive as against Hansa Singh (PW-11) that very fact was             G
sufficient enough to bring the action of the accused party in
having caused injuries on the witnesses and other persons as
well as the cause for the death of the deceased Amarjit Singh
to squarely rope them in the process of their common object.
Section 149 provides that if offence is committed by a member        H
    814       SUPREME COURT REPORTS                 [2012) 10 S.C.R.

A of an unlawful assembly in commission of the object of that
  assembly then every person>who at the time of committing of
  that offence is a member of that assembly would be guilty of
  that offence. In this context, it will be worthwhile to refer to the
  earliest decision on this subject reported in Mizaji and Anr. v.
B State of UP. - AIR 1959 SC 572 wherein this Court has held
  as under:-

          "6. This section has been the subject matter of
          interpretation in the various High Courts of India, but every
          case has to be decided on its own facts. The first part of
c         the section means that the offence committed in
          prosecution of the common object must be one which is
          committed with a view to accomplish the common object.
          It is not necessary that there should be preconcert in the
          sense of a meeting of the members of the unlawful
D         assembly as to the common object; it is enough if it is
          adopted by all the members and is shared by all of them.
          In order that the case may fall under the first part the
          offence committed must be connected immediately with
          the common object of the unlawful assembly of which the
E         accused were members. Even if the offence committed
          is not in direct prosecution of the common object of the
          assembly, it may yet fall under Section 149 if it can be
          held that the offence was such as the members knew was
          likely to be committed ........... "
F
                                                  (Emphasis added)

       20. Therefore, applying the above said principle, it can be
  safely held that everyone of the members of the accused party
  must have been fully aware that having regard to the fact that
G dangerous weapons were in their possession, that they had an
  axe to grind against Hansa Singh (PW-11), that there was
  every likelihood of the offence of that magnitude would be the
  ultimate outcome and the factum of such grave offence
  ultimately brought them within the four corners of the said
H Section and there was no escape from it. Therefore, the
       AVTAR SINGH v. STATE OF HARYANA                       815
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
argument that there was no common object to murder Amarjit          A
Singh also stands rejected. The manner of causing injury on the
person of Amarjit Singh also goes to show that all of them were
determinative of showing their might by ensuring that the
deceased and other injured persons did not escape from their
assault and the deceased ultimately succumbed to the injuries       B
inflicted upon him. The assailants ensured that the deceased
was hit on his head and every vital part of the body and the
chopping of the torso of both the legs was only to ensure that
there was no way to escape for the person from the gruesome
attack. The totality of the manner in which the assailants acted    c
at the place of occurrence while inflicting the injuries on the
deceased as well as others only displayed their united mind
and effort in the fulfillment of their objective at the spot and,
therefore, there was no scope to individualize the conduct of
the assailants in order to mitigate the gravity of the charges
                                                                    0
found proved against the appellants. Therefore, the submission
made by learned senior counsel that at best Kirpal Singh (A-
4) can alone be found guilty of the offence under Section 302,
IPC or under Section 304 Part I while others may be guilty of
the lesser offence falling under Section 323, IPC cannot be         E
accepted. Having regard to the gravamen of the charges found
proved against the appellants, we do not find any scope to bring
it under Section 304 Part I IPC based on the submission made
on behalf of the appellants.

     21. As held by us earlier the offence found proved against     F
the appellants squarely fall under Section 302, IPC and the
punishment imposed on the appellants for the said offence as
well as the other charges levelled against them was fully
established, the conviction and sentence imposed on the
appellants, therefore, do not call for any interference. The        G
impugned judgment cannot be assailed, the appeals fail and
the same are dismissed.

8.8.B.                                     Appeals dismissed.