GURJIT SINGH ALIAS GORA AND ANR.versusSTATE OF HARYANA

                          [2015] 2 S.C.R. 976


 A             GURJIT SINGH ALIAS GORA AND ANR.

                                    v.
                         STATE OF HARYANA
  B                (Criminal Appeal No.519 of 2010)

                           MARCH 10, 2015

        [JAGDISH SINGH KHEHAR AND S.A. BOBDE, JJ.]
 c          Penal Code, 1860 - s.302 rw s.34 - Murder -
       Prosecution case that appellant-accused along with his
      brother, armed with spades inflicted injuries to the victim-
       Parents of the accused exhorted their sons to commit the
      crime on account of enmity between the parties - Plea of
 0
      self defence and sudden provocation by the accused and
      his brother since the victim had injured their father - Trial
      court convicted the appellant u/s. 304 Part II, however,
      acquitted his brother - High Court convicted the appellants
. E   uls. 302 rw s. 34 - On appeal, held: Circumstances of the
      case pointed out to the commission of the crime u/s. 302 -
      High Court, after going through the entire evidence, came
      to the comet conclusion that the two blows were caused
      by accused and his brother, both armed with spade and who
 F    had been exhorted to kill the victim by their parents - It is
      accepted that the injury on the father of the accused is se/f-
      inflicted, in all likelihood - Further, there was inordinate
      delay in seeking medical attention by the father - Also the
      father refused to undergo radiological examination of the
 G    injuries and did not tell the doctor as to how and why he
      got the injuries which was wholly unnatural - Non-
      explanation of injuries not fatal to the prosecution case -
      Defence version that the appellant attacked the victim

 H                                976
·     GURJIT SINGH ALIAS GORA v. STATE OF HARYANA 977


     because the victim attacked his father with spade cannot A
     be accepted - Further, the failure to corroborate the
     existence of spade was not explained - Also statement of
     the relatives of the victim could not be disbelieved only
     because they were relatives of the deceased victim - Thus,
     the order passed by the High Court upheld.                 B

         Dismissing the appeal, the Court

           HELD: 1.1 In appeal, the High Court reassessed the
      entire evidence and came to the conclusion that it c
      cannot be said to be the duty of the prosecution in the
      circumstances to explain injuries on the person of the
      accused, GD(father) particularly, since GD neither
      offered himself for radiological examination nor had he
      disclosed the history of his injuries to the doctor. The o
      High Court opined that the non-explanation of injuries
      is insufficient to discard the case of the prosecution, if
      it otherwise inspires confidence and is worthy of
      credence. The High Court disagreed with the trial court
      and held that there is no reason to disbelieve the E
      statement of the brother of the deceased and the
      widow, only because they were near relations of ihe
      deceased. It is settled law, that the statement of a
    · relative of the deceased cannot be discarded merely on
      the ground that he or she is an interested party. [Para F
      16] (986-F-H; 987-A]

        Anwar Ali v. State of U.P (2011) 15 SCC 360; Karlik
    Malhar v. State of Bihar 1995 (5) Suppl. SCR 239 : (1996)
    1 SCC 614; Ashok Rai v. State of U.P. (2014) 5 SCC 713 G
    - referred to.

        1.2 The circumstances of the case pointed out to
    the commission of the crime under Section 302 IPC.
    There is no doubt about the occurrence having taken H
978      SUPREME COURT REPORTS               [2015] 2 S.C.R.


A place, in which JS was killed by the accused and that
  his injuries were caused by 'kassis.' There is clear
  evidence that the accused party comprised of GD, his
  wife along with their sons GS and SS who were armed
  with 'kassis.' There are two injuries made by the
B 'kassis'; on the back of the head and the other on the
  face of the deceased. The eye-witnesses accounts of
  PW13 and PW14, who were undoubtedly present, in no
  uncertain terms reveals that JS was attacked by the
  accused party i.e. GS and SS. PW14 stated that the
C accused GS gave a 'kassi' blow on the back of the head
  of JS, as a result of which he fell. Further, that the
  second 'kassi' blow was given on the right side of the
  face of JS. The inference drawn by the trial court that
  PW14 intended to name GS, as the person who also
D caused the second blow is unwarranted. The acquittal
  of SS on that ground is also not sustainable. Some
  element of confusion was sought to be created in the
  defence version by alleging, vide DW1's deposition that
  JS received the second blow because he fell after
E receiving the first blow on a 'kassi' lying beside GS,
  which cut his face on the right side. [Para 17, 18] [987-
  F-H;, 988-A-E]

      1.3 The trial court came up with an inference, which
F is different even from the defence version. It is
  appropriate to accept the judgment of the High Court,
  which, after reading the entire evidence on this point,
  came to the correct conclusion that the two blows were
  caused by GS and SS, who were both armed with
G 'kassis' and who had been exhorted to kill JS by their
  parents. The judgment of the High Court that the injury
  on GD is self-inflicted, in all likelihood is accepted. The
  inordinate delay in seeking medical attention by GD
  raised many questions. He also refused to undergo
H radiological examination of the injuries and did not tell
 GURJIT SINGH ALIAS GORA v. STATE OF HARYANA 979


the doctor as to how and why he got the injuries. GD's A
conduct appears to be wholly unnatural and it is not
possible to accept the defence version that GS attacked
JS because JS attacked his father with a 'gandasi.' The
failure to corroborate the existence of the 'gandasi,' has
not been explained. The order of conviction and B
sentence as recorded by the High Court is upheld and
the order of acquittal passed by the trial court is set
aside.(Para 19,20,21) [988-F-H; 989-A-D]

  , Chandrappa & Ors v. State of Kamataka 2007 (2) SCR C
630: (2007) 4 SCC 415; State of M.P. v. Ramesh & Anr.
2011 (5) SCR 1: (2011) 4 SCC 786; Ranjitham v. Basavaraj
& Ors. (2012) 1 SCC 414 - referred to.

     Arun Raj v. Union of India 2010 (7) SCR 1: JT 2010    o
(5) SC 1; Kapi/deo v. State of U.P. 1983 SCC (Crl) 311 -
distinguished.

                        Case Law Reference

   2007 (2) SCR 630           referred to.   Para 13       E

   2011 (5) SCR 1             referred to.   Para 13

  (2012) 1 sec 414            referred to.   Para 13
                                                           F
   2010 (7) SCR 1            distinguished. Para 13

   1983 sec (Crl) 311        distinguished. Para 13

  (2011) 15 sec 360          referred to.    Para 16
                                                           G
   1995 (5) Suppl. SCR 239 referred to.      Para 16

  (2014) 5 sec 113           referred to.    Para 16

   CRIMINAL APPELLATE JURISDICTION: Criminal
                                                           H
980         SUPREME COURT REPORTS                             [2015] 2 S.C.R.


A     Appeal No. 519 of 2010.

          From the Judgment and Order dated 24.10.2009 of the
      High Court of the States of Punjab and Haryana at
      Chandigarh in Criminal Appeal No. 511-DBA of 2001.
8
         Dr. J.P. Dhanda, Raj Rani Dhanda, Vineet Dhanda, N.
      A Usmani for the Appellants.

          Manjit Singh, B. K. Satija, AAG, Tarjit Singh, Vivekta
      Singh, Kamal Mohan Gupta for the Respondent.
c
          The Judgment of the Court was delivered by

       S. A. BOBDE, J. 1. This appeal has been preferred
  by the accused Gurjit Singh alias Gora and Surjit Singh alias
o Sukha, from the Judgment of the High Court of Punjab and
  Haryana at Chandigarh, convicting the appellants - accused
  under Section 302 read with Section 34 of the Indian Penal
  Code [hereinafter referred to as "IPC"] for the murder of
  Jagsir Singh on 17.10.1998 at about 2.15 pm at village
E Ganga (Dabwali), District Sirsa, Haryana.

          The relationsh.ip between the parties is as follows:



F                                   MIYAN SINGH


                                         I
                     I                                         I

                GUROIALSINGH
                                                            MUKHTIAR
                     x                                       SINGH
G                SURJITKAUR

                     I                                         I
            I                  I                  I                      I

                          SURJIT SINGH       JAGSIR SINGH          MANDER SINGH
       GURJITSINGH        AUASSUKHA               x
        ALIAS GORA             x                                         x
                                             SUKHWINOER            PARAMJIT KAUR
                         KULDEEP KAUR           KAUR
H
 GURJIT SINGH ALIAS GORA v. STATE OF HARYANA 981
                [S. A. BOBDE, J.]

    2. According to the prosecution, on 17.10.1998 at about        A
2.15 p.m., Jagsir Singh left his home to go to a shop for
purchasing Zarda (chewing tobacco). His house was
adjacent to the house of the accused. Soon thereafter, his
brother Mander Singh (PW13), his wife Sukhwinder Kaur
(PW14) and Paramjit Kaur heard hot words being                     B
exchanged between Jagsir Singh (deceased) and the
accused. Mander Singh along with Sukhwinder Kaur went
out of their house to see as to what had happened. They
saw that the accused had surrounded Jagsir Singh.
Accused Gurjit and Surjit were armed with 'kassis' (spades)        C
whereas Gurdial Singh, the father of the accused and Surjit
Kaur, their mother, were unarmed. Gurdial Singh and Surjit
Kaur exhorted Gurjit and Surjit that Jagsir Singh be taught
a lesson for bringing the 'Kanungo' (revenue inspector) to
                                                                   0
the village for demarcation of their property. Gurjit then
struck Jagsir Singh on the back of his head with a 'kassi',
causing him to fall. Thereafter, Surjit also struck Jagsir Singh
on his face with a 'kassi.' Accused Surjit Kaur then dragged
Jagsir Singh towards the village lane.                             E

     3. As per the prosecution, Mander Singh (PW13), the
brother of the deceased and Sukhwinder Kaur (PW14) had
been restrained by the accused Gurdial Singh and his wife
Surjit Kaur from approaching the site where Jagsir Singh F
had been cornered by the accused brothers. Mander Singh
and Sukhwinder Kaur made frantic calls for help, thereby
attracting many people from the locality to the scene of the
incident. The accused escaped from the scene with their
weapons.                                                     G
     4. Jagsir Singh was immediately removed to the
Community Health Centre, Dabwali. The doctor there
provided first aid and referred him to the General Hospital
at Sirsa, which is at a distance of about 60 Kms, where he         H
982      SUPREME COURT REPORTS                   [2015) 2 S.C.R.


A was declared as brought dead.

       5. After completion of investigation, a report under
  Section 173 of the Code of Criminal Procedure, 1973
  (hereinafter referred to as the 'Cr.P.C.') was presented in
B court. The accused were charged under Sections 302 and
  341 read with Section 34 of the IPC. An autopsy was
  conducted by Dr. Jagdish Choudhary (PW4) along with Dr.
  Yogesh Sangwan. At the trial, the prosecution examined 15
  witnesses including Mander Singh (PW13), brother of Jagsir
C Singh (deceased) and Sukhwinder Kaur (PW14), widow of
  the deceased. After the closure of t:->e prosecution evidence,
  statements of the accused were recoroed under Section 313
  Cr.P.C., in which they denied the allegations and pleaded
  false implication. The accused examined Kuldeep Kaur
D (DW1) and Dr. Bhushan Garg (DW2) in their defence.

       6. The two parties are related by blood. Gurdial Singh
  and Mukhtiar Singh, are sons of one Miyan Singh. Mukhtiar
  Singh is father of deceased Jagsir Singh. Ttv two brothers
E were owners in possession of 2/3 share of total land
  measuring 157 Kanals and 19 Marlas situated in the
  revenue estate of village Ganga, Tehsil Dabwali, District
  Sirsa. The sons of Mukhtiar Singh i.e. the complainant party,
  believed that their uncle Gurdial Singh and his sons i.e. the
F accused party, had encroached upon their land. They had
  therefore moved an application for demarcation of the
  property. The accused were not in agreement with the
  course adopted by the complainants. Therefore, they
  cornered the deceased Jagsir Singh in front of their house
G when he was on his way to the village market. The acquitted
  accused, Gurdial Singh and his wife Surjit Kaur had
  exhorted their sons i.e. Surjit and Gurjit, to commit the
  crime.
H       7. It is significant that in defence, the accused admitted
 GURJIT SINGH ALIAS GORA v. STATE OF HARYANA 983
                [S. A. BOBOE, J.]

the occurrence. Their version, however, has differed from A
that of the prosecution. According to them, Gurdial Singh
was digging in the street and was dumping mud along the
wall of his house. Thereafter, Jagsir Singh (deceased) came
there armed with a 'gandasi' (sharp-edged weapon) and
raised a 'Khangura' (a provocative sound made to incite B
another person). In response, Gurdial asked Jagsir Singh
why he had made that sound since he had brought him up
as a child. Jagsir Singh responded by demanding a certain
piece of land from Gurdial Singh. Thereafter, Jagsir Singh
struck Gurdial Singh with the 'gandasi' on his head. It is C
further stated, that Gurdial Singh then rushed into his house
with Jagsir Singh in pursuit. Thereafter, Jagsir Singh struck
him again with the reverse side of the weapon. Meanwhile,
Gurjit, Gurdial's son, picked up a 'kassi' and tried to save
                                                              0
his father from the hands of Jagsir Singh. In the process,
Gurjit struck Jagsir Singh on the back of his head, causing
him to fall on the sharp side of the 'kassi' which had fallen
from the hands of Gurdial Singh. Learned counsel for the
appellants thus pleaded self-defence and sudden E
provocation before us.

     8. The Doctor (PW4), who conducted the autopsy on
the dead body of Jagsir Singh, observed two incised
wounds i.e. one over the scalp extending 4 ems behind the      F
left ear and the other extending from the nasal septum to
2 ems below the right external ear. In the opinion of the
doctor, the cause of death was shock and hemorrhage as
a result of injuries to vital organs, which were ante-mortem
in nature.
                                                               G
     9. At this stage, it is apposite to notice that the injury
is said to have been caused to Gurdial Singh by Jagsir
Singh with a 'gandasi' (sharp-edged weapon). As per the
First Information Report, the incident took place at about H
984      SUPREME COURT REPORTS                 [2015) 2 S.C.R.


A 2.15 pm. At around 6.55 pm, in the evening, Gurdial Singh
  went to the Primary Health Center at Odhan and got himself
  examined by the medical officer on duty there, namely, Dr.
  Bhushan Garg (DW2). The Doctor found:

B       1. An incised wound 4 ems x 1 cm on the right parietal
        area of head and it was 6 ems above the right ear.
        Fresh bleeding was present and margins were sharp.
        The doctor advised an x-ray for this injury.

c       2. A contusion 3 ems x 1 cm on the left hand on the
        dorsal aspect at the base of left thumb and it was
        transversely placed. Severe tenderness was present.

       This doctor prepared a skiagram (an x-ray image) of
D the injuries and sent a ruqa to the Police Station, Odhan.
  Further, although this witness ruled out the injury by a
  friendly hand or by self, he did not reject the possibility of
  the injuries being self-inflicted. Significantly, this witness
  admitted in his cross-examination that the injured i.e ..
E Gurdial Singh. did not offer himself for radiological
  examination and further. he did not disclose the history of
  the injuries to him.

        10. It is equally significant that the weapon, which is
F said to have been used to cause this injury to Gurdial Singh
  i.e. the 'gandasi,' was never recovered.

       11. The Trial Court accepted the defence version in its
  entirety. It came to the conclusion that Gurjit caused an
  injury on the head of Jagsir Singh (deceased) in self-
G defence i.e. after Jagsir had attacked his uncle Gurdial
  Singh on the head with a 'gandasi.' That thereupon, Jagsir
  Singh fell face down on the 'kassi' which had allegedly fallen
  from the hands of Gurdial. The Trial Court completely
H acquitted the other accused Sukha alias Surjit Singh. The
  GURJIT SINGH ALIAS GORA v. STATE OF HARYANA 985
                 [S. A. BOBDE, J.]

  Trial Court concluded that Surjit had no role to play because A
  Sukhwinder Kaur, Jagsir Singh's widow, stated in her
· deposition that Gurjit had struck Jagsir Singh on the head
  with the 'kassi.' The second 'kassi' blow, however, was given
  on the right side of the face of Jagsir Singh. Because she
  had not mentioned the nanie of the person who had given B
  the second blow on the face of the deceased, the Trial Court
  concluded, that the witness attributed the second blow also
  to Gurjit.

     12. The Trial Court seems to have attached no C
 importance to the fact that the recovery of the weapon (the
 'kassi) was made at the instance of the accused Surjit
 Singh. This was simply dismissed as highly improbable.

      13. The learned counsel for the appellants, Dr. J.P. D
 Dhanda, placed reliance on Chandrappa & Ors v. State
 of Karnataka (2007) 4 SCC 415, State of M.P. v. Ramesh
 & Anr (2011) 4 SCC 786 and Ranjitham v. Basavaraj &
 Ors (2012) 1 SCC 414 to submit that in an appeal against
 acquittal, interference by the Appellate Court is not E
 warranted in the absence of perversity in the judgment of
 the Trial Court. These judgments do not help the cause of
 the appellants because the High Cot• ' has given clear and
 cogent reasons to show that the jud~ment of the Trial Court
 was perverse and not based on the evidence on record.       F

      Further, Dr. Dhanda relied on Arun Raj v. Union of
 India JT 201 O(5) SC 1; and Kapildeo v. State of U.P. 1983
 SCC (Crl) 311 to show that the offence committed by the
 appellants fell within the scope of Section 304 Part II of IPC G
 and not under Section 302 of IPC. It is pertinent to note
 that in Arun Raj (supra) this Court had rejected the defence
 of grave and sudden provocation and convicted the
 appellant under Section 302 of IPC. Whereas in Kapildeo
 (supra) this Court altered the conviction from Section 304 H
986        SUPREME COURT REPORTS                [2015) 2 S.C.R.


A     Part I to Section 304 Part II of IPC. The circumstances in
      the above cases were entirely different from the present
      case.

       14. We might state at this stage itself that upon reading
B of the evidence of Mander Singh (PW14), it cannot be said
  that Sukhwinder Kaur (PW13) stated that the second 'kassi'
  blow was given on the right side of the face of Jagsir Singh
  to mean that the second blow was also caused by Gurjit
  Singh alias Gora. The Trial Court also seems to have
C missed the defence version, according to which Jagsir
  Singh received the second injury from the 'kassi' because
  he fell on the ground where the 'kassi' was lying, and not
  because Gurjit Singh caused it, vide the deposition of
  Kuldeep Kaur (DW1), wife of Surjit Singh.
D
       15. As stated above, the Trial Court acquitted Surjit
  Singh completely and also Gurjit Singh of the charge under
  Section 302 IPC, accep~ing the defence version that Gurjit
  attacked deceased Jagsir Singh only to save the life of his
E father - Gurdial Singh, who had allegedly been injured by
  Jagsir Singh. The Trial Court convicted Gurjit Singh under
  Part II of Section 304 IPC.

       16. In appeal, the High Court reassessed the entire
F evidence and came to the conclusion that it cannot be said
  to be the duty of the prosecution in the circumstances to
  explain injuries on the person of the accused, Gurdial Singh,
  particularly, since Gurdial neither offered himself for
  radiological examination nor had he disclosed the history
G of his injuries to the doctor. The High Court opined that the
  non-explanation of injuries is insufficient to discard the case
  of the prosecution, if it otherwise inspires confidence and
  is worthy of credence. The High Court disagreed with the
  Trial Court and held that there is no reason to disbelieve
H the statement of Mander Singh, the brother of the deceased
 GURJIT SINGH ALIAS GORA v. STATE OF HARYANA 987
                [S. A. BOBDE, J.]

and Sukhwinder Kaur, the widow, only because they were         A
near relations of the deceased. It is settled law, that the
statement of a relative of the deceased cannot be discarded
merely on the ground that he or she is an interested party.
In Anwar Ali v.State of U.P., (2011) 15 SCC 360, this Court
rightly observed that once the prosecution has been able       B
to prove its case by leading admissible and cogent evidence
with reference to statements of the witnesses, the same
cannot be brushed aside merely on the ground that the
wit:1esses are relatives of the deceased. In Kartik Malhar
'I. State of Bihar, (1996) 1 SCC 614, this Court held that     C
even a close relative who is a natural witness cannot be
regarded as an interested witness. The term "interested"
postulates that the witness must have some direct interest
in having the accused somehow or the other convicted for
                                                               0
some animus or for some other reason. More recently, this
principle was upheld in Ashok Rai v. State of U.P., (2014)
5 SCC 713, whereby this Court clearly stated that the
evidence of interested witnesses is not infirm. The High
Court has also disagreed with the Trial Court that the fight   E
took place at the spur of the moment and the accused had
not conspired with each other to commit the crime, since
there was no evidence to that effect.

    17. Having considered the entire matter, we are of the     F
view that the circumstances of the case point out to the
commission of the crime under Section 302 IPC, as
observed earlier.

     18. There is no doubt about the occurrence having
taken place, in which Jagsir Singh was killed by the accused G
and that his injuries were caused by 'kassis.' There is clear
evidence that the accused party comprised of Gurdial Singh,
his wife Surjit Kaur along with their sons Gurjit Singh and
Surjit Singh. Gurjit and Surjit were armed with 'kassis.' There H
988      SUPREME COURT REPORTS                 [2015] 2 S.C.R.


A are two injuries made by the 'kassis'; on the back of the
  head and the other on the face of the deceased, Jagsir
  Singh. The eye-witnesses accounts of Mander Singh
  (PW13) and Sukhwinder Kaur (PW14), who were
  undoubtedly present, in no uncertain terms reveals that
B Jagsir Singh was attacked by the accused party i.e. Gurjit
  Singh and Surjit Singh. Sukhwinder Kaur has stated that
  the accused Gurjit gave a 'kassi' blow on the back of the
  head of Jagsir Singh, as a result of which he fell. Further,
  that the second 'kassi' blow was given on the right side of
C the face of Jagsir Singh. The inference drawn by the Trial
  Court that Sukhwinder Kaur intended to name Gurjit Singh,
  as the person who also caused the second blow is
  unwarranted. The acquittal of Surjit Singh on that ground
  is also not sustainable. Some element of confusion was
0
  sought to be created in the defence version by alleging, vide
  Kuldeep Kaur's (DW1) deposition that Jagsir Singh received
  the second blow because he fell after receiving the first blow
  on a 'kassi' lying beside Gurdial Singh, which cut his face
E on the right side.

      19.The Trial Court has come up with an inference,
  which is different even from the defence version. We
  consider it appropriate to accept the Judgment of the High
F Court, which, after reading the entire evidence on this point,
  came to the correct conclusion that the two blows were
  caused by Gurjit Singh and Surjit Singh, who were both
  armed with 'kassis' and who had been exhorted to kill Jagsir
  Singh by their parents, Gurdial Singh and Sukhwinder Kaur.
G       20. We also agree with the Judgment of the High Court
  that the injury on Gurdial Singh is self-inflicted, in all
   likelihood. Gurdial Singh was said to have gone to the
  Primary Health Centre, Odhan at around 6.55 pm, even
H though the incident had taken place at around 2.15 pm. The
 GURJIT SINGH ALIAS GORA v. STATE OF HARYANA 989
                [S. A. BOBDE, J.]

inordinate delay in seeking medical attention raises many A
questions. In addition, he also refused to undergo
radiological examination of the injuries and did not tell the
doctor as to how and why he got the injuries. Gurdial
Singh's conduct appears to be wholly unnatural and it is not
possible to accept the defence version that Gurjit Singh B
attacked Jagsir Singh (deceased) because Jagsir attacked
his father with a 'gandasi.' As observed earlier, the failure
to corroborate the existence of the 'gandasi,' has not been
explained.
                                                              c
    21.For the aforesaid reasons, the appeal is dismissed.
The order of conviction and sentence as recorded by the
High Court is upheld and the order of acquittal passed by
the Trial Court is set aside.
                                                              D
Nidhi Jain                                Appeal dismissed.
                                                                  I
                                                                   \