Supreme Court of India
STATE OF PUNJABversusATMA SINGH AND ORS.
- Citation
- 2009 INSC 774
- Decided
- 8 May 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The High Court erred in acquitting the accused; the trial court's conviction was correct and must be reinstated.
Summary
The State of Punjab prosecuted Atma Singh and others for an armed assault that killed the wife and son of the complainant and injured three eyewitnesses. The trial court convicted the accused under sections 302, 307, 148, 149 and 324 of the IPC and section 27 of the Arms Act. The Punjab & Haryana High Court set aside the convictions, acquitting the accused on grounds of alleged delay in lodging the FIR, delay in the special report, alleged inconsistencies between ocular and medical evidence, and doubts about the credibility of the eyewitnesses. The Supreme Court held that the FIR was lodged within a reasonable time, the delay in the special report was attributable to the investigating officer, the ballistic and medical evidence corroborated the prosecution’s version, and the eyewitness testimonies were reliable; consequently, the High Court’s acquittal was based on surmise and conjecture. The Court reversed the High Court order, reinstated the trial court’s convictions, and directed the remaining accused to surrender. The appeal was allowed.
Issues considered
- Whether the alleged delay in lodging the FIR and in delivering the special report warrants acquittal of the accused.
- Whether the apparent variance between ocular (eyewitness) evidence and medical/ballistic evidence creates reasonable doubt.
- Whether the credibility of the three injured eyewitnesses can be discarded on mere surmise.
- Whether an appellate court may interfere with a trial court's conviction when the appellate conclusions lack factual foundation.
Legislation cited
- Arms Act, 1959s. 27
- Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 307, s. 324
Subjects
armed assaultmurderIPC 302IPC 307IPC 149FIR delayeyewitness testimonyballistic evidenceappellate reviewconvictionacquittal
Judgment
(2009] 8 S.C.R. 549
•
STATE OF PUNJAB A
..... I\_, v.
ATMA SINGH AND ORS.
(Criminal Appeal No. 695 of 2001)
MAY 08,2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
·• SHARMA, JJ.]
Penal Code, 1860 - ss.302 rlw 149 and 307 rAy 149 -
Armed assault resulting in death of two persons on account c
-
of gun shot wounds and injuries to three eye-witnesses -
Conviction of accused-respondents by Trial Court- Reversed
by High Court - Propriety of - Held: On facts, not proper -
There was no reason for High Court to conclude that FIR was
registered belatedly - High Court discarded the credible D
evidence of eye witnesses on mere surmises and conjectures
- Though there should not be interference with judgment of
acquittal where the view taken is a possible view, but where
conclusions are without any foundation, there is need to
interfere with the judgment of appellate Court -On facts, E
analysis done by trial Court was appropriate and High Court
~
should not have on mere surmises and conjectures interfered ·
with the judgment of trial Court and directed the acquittal -
Appeal - Appeal against acquittal.
According to the prosecution, the respondents F
launched an armed assault on the prosecution party,
resulting in death of the wife and son of PW1 on account
of gun shot wounds and injuries to three eye-witnesses.
The trial court convicted the respondents under s.302 r/
. "
'
w s.149 and s.307 r/w s.149 IPC. The High Court set aside
the conviction primarily on ground of delay in lodging of
G
FIR, delay in delivery of special report to llaqa Magistrate
and variance between ocular evidence and medical
549 H
550 SUPREME COURT REPORTS (2009] 8 S.C.R
A evidence. Hence the present appeals. '
Allowing the appeals, the Court •
HELD: 1. The first aspect highlighted by the High
Court was purported delay in lodging the FIR. The trial
8 Court noted that there was in fact no delay and even if
there was some delay the same was satisfactorily
explained. The occurrence took place at 6.30 p.m. on
11.2.1993. FIR was lodged at about 12.00 mid night. The
explanation given to explain the so called delay was that
c two sons of PW1 were seriously injured and the first
reaction was to provide the medical facilities to them and
accordingly he took them to Amritsar, got them admitted
to the hospital and immediately thereafter the FIR was
registered. Therefore, there is absolutely no delay in
D lodging the FIR. [Para 6] [555-E-H; 556-A]
2. The trial Court noticed that if the special report
reached late it was fault of the investigating officer. There
was no reason for the High Court to conclude that the
FIR was registered belatedly. The investigating officer
E
reached immediately after the occurrence, prepared two
inquest reports, FIR number was also received and the
same was put on the inquest reports and all the papers
~
were required to be handed over to the Head Constable
(PW-9) who was deputed to take dead body to Mortuary.
F [Para 7) [556-A-C]
3.1. The so called variance between the ocular
evidence and the medical evidence was essentially
because of the weapon that was used. The High Court
G put unnecessary stress on the use of the expression
'shot' and 'shots'. Illiterate witnesses hardly know the " ,,
difference. The exact words used by the witness are "on
receiving the fire shots the deceased (son of PW1) fell
down on the ground". Therefore, he has meant definitely
H
..
I
STATE OF PUNJAB v. ATMA SINGH AND ORS. 551
' more than one shot and not one shot. Additionally, four A
empty cartridges of 12 bore were recovered from the
place of incident. Therefore, there should not have been
one shot fired. Shots fired on wife of PW1 were clearly
from the weapon described by the prosecution as wads
and pellets were found in the wounds. The High Court B
said that there was doubt about the weapon used on
PW1 's son. Even if that be so, there was no scope for
·(
directing acquittal of the accused persons m respect of
murder of PW1's wife. [Para 8] [556-D-H; 557-A]
3.2. Coming to the question of testimony of three
c
injured eye witnesses, the trial Court noticed that their
statements were flawless and nothing has come out in
their cross examination on the basis of which any doubt
could be created about their veracity. The place was a
secluded one. The incident took place on the turning of D
the passage. The incident continued sufficiently for a
long time which was clear from the fact that many shots
were fired, resulting m the death of PW1 's son and wife
and injuries to some of the witnesses. The High Court
discarded the credible evidence of the eye witnesses on E
mere surmises and conjectures. [Paras 9 and 10] [557-8-
D]
J,
4. Though there should not be interference with the
judgment of acquittal where the view taken is a possible F
view, but where conclusions are without any foundation,
there is need to interfere with the judgment of the
appellate Court. In the instant case the analysis done by
the trial Court was appropriate and the High Court should
not have on mere surmises and conjectures· interfered
G
with the judgment of the trial Court and directed the
f
acquittal. [Paras 11 and 12] [557-G-H; 558-A-B]
CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
No. 695 of 2001.
H
552 SUPREME COURT REPORTS [2009] 8 S.C.R.
A From the Judgment & Order dated 07.11.2000 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No 406-DB 1996.
WITH
B Criminal Appeal Nos. 696-697 cf 2001.
Sushil Kumar, Kuldip Singh, R.K. Pandey, T.P. Mishra,
Meenakshi Kumar, R.P. Wadhwani and Aditya Kumar for the
Appellant.
c K.B. Sinha, Kawaljit Kochar, Kusum Chaudhary and Kt.ildip
Singh for the Respondents.
The Judgment of the Court was delivered by
D DR. ARIJIT PASAYAT, J. 1. These appeals are inter-
linked and are directed against the judgment of a Division
Bench of the Punjab and Haryana High Court. By the impugned
judgment the High Court allowed the appeal filed by the
respondents. The appeal before the High Court was numbered
E as Criminal Appeal No.406-DB of 1996. The learned Additional
Sessions Judge, Amritsar had found the accused persons guilty
of various offences. Accused Lal Singh was found guilty of
offence punishable under Section 302 of the Indian Penal
Code, 1860 (in short the 'IPC') while Dial Singh, Atma Singh, •
Sajjan Singh and Karam Singh were found guilty of offence
F
punishable under Section 302 read with Section 149 IPC.
Accused Dial Singh was also found guilty of offence punishable
under section 302 IPC while four others were found guilty of
offence punishable under Section 302 read with Section 149
IPC. All the five accused persons were guilty of offence
G punishable under Section 148 IPC. Accused Lal Singh was
found guilty of offence punishable under Section 307 IPC while •
accused Lal Singh, Atma Singh, Sajjan Singh and Karam Singh
were found guilty of offence punishable under Section 307 read
with section 149 IPC. Accused Atma Singh, Sajjan Singh and
H
STATE OF PUNJAB v. ATMA SINGH AND ORS. 553
[DR. ARIJIT PASAYAT, J.]
...
Karam Singh were found guilty of offence punishable under A
Section 324 IPC. Accused Lal Singh and Dial Singh were found
guilty of offence punishable under Section 324 read with
Section 149 IPC. Accused Lal Singh and Dial Singh were also
found guilty under Section 27 of arms act, 1959 (in short the
'Arms Act'). B
2. It is to be noted that Criminal Revision No.279 of 1997
was filed by Atma Singh and Others and it was taken up
alongwith Criminal Appeal as noted above. The High Court by
the impugned judgment held that the prosecution case suffers
from various infirmities and, therefore, allowed the appeal. c
3. Prosecution version in a nutshell as unfolded during trial
.
' was as follows:
At about 6.45 p.m. on 11.2.1993 Mal Singh (PW-1)
D
accompanied by his sons Major Singh and Bhupinder Singh
was returning to his dhani in the fields after closing the shop.
When they were on the kacha path leading to the house of
accused Lal Singh, they were confronted by Lal Singh armed
with a DBBL gun, Atma Singh with a Gandassi, Sajjan Singh
E
with a kirpan, Karam Singh with a datar, while Dial Singh son
of Lal Singh was empty handed. On seeing Mal Singh and his
sons, the accused raised a lalkara that the opposite party
should be done to death for getting their relatives arrested by
the Batala Police. At this, Lal Singh fired a shot from his gun,
which hit Major Singh on his chest, receiving which he fell down F
on the ground. Lal Singh fired another shot which hit Bhupinder
Singh on his right arm after which he took shelter in the fields
and raised a halla. On hearing the noise, Dalip Kaur W/o Mal
Singh and his sons Mohinder Singh and Manohar Singh came
to the spot and tried to rescue them. Sajjan Singh and Atma G
~ Singh then gave one blow each to Mohinder Singh on his head,
on receiving which he fell down on the ground. Karam Singh
then gave a datar blow on the head of Mohinder Singh and
when Dalip Kaur came forward to rescue them, Dial Singh
H
554 SUPREME COURT REPORTS [2009) 8 S.C.R.
A snatched the gun from his father Lal Singh and fired a shot on
her head and she too fell down. Mal Singh and his son Manohar
Singh raised a raula on which all the accused ran away carrying
with them their weapons. Mal Singh and Manohar Singh came
forward and found that Dalip Kaur and Major Singh had
B succumbed to their injuries. Leaving Manohar Singh near the
dead bodies, Mal Singh rushed to Amritsar and got a vehicle
to take the injured sons Mohinder Singh and Bhupinder Singh
to the hospital. He however came across a police party headed
by S.I. Sal\.vant Singh (PW-13) at the bus stand ofKhalchain,
C who recorded Mal Singh's statement at 0.05 a.m. on 12.2.1993
and on its basis the formal FIR was registered at Police Station
30 minutes later with the special report being delivered to the
lllaqa Magistrate at 6.11 p.m. on 12.2.1993. Sub Inspector
Satwant Singh thereafter accompanied by the complainant and
other police officials reached village Kaleke. He examined the
0
place of incident in the presence of respectable persons of the •
village and completed the necessary formalities. He also picked
up 4 empty cartridge cases of .12 bore DBBL from the spot.
Accused Lal Singh and Dial Singh were arrested on 26.2.1993
and on the basis of the disclosure statement made by Lal Singh
E a licensed DBBL gun was duly recovered. Accused Atma
Singh, Sajjan Singh and Karam Singh were arrested on March
4, 1993 and on the basis of the disclosure statements made
by them the weapons of offence that they had been carrying ,
were also recovered. On completion of investigation charge
F sheet was filed. Since the accused pleaded not guilty, trial was
held.
In the present appeals the informant and the State of
Punjab had question the acquittal directed by the High Court.
G The High Court primarily directed acquittal on the ground that~.
there was delay in lodging the FIR and there is doubt about the
weapon used. It was also observed that there was delay in
delivery of the special report of lllaqa Magistrate. The direction
of injuries was referred to by the High Court. In that view the
H
STATE OF. PUNJAB v. ATMA SINGH AND ORS. 555
[DR. ARIJIT PASAYAT, J.]
prosecution version was held to be not acceptable. A
4. Learned counsel for the appellant submitted that the
High Court has come to contradictory conclusions. It has even
over-looked the concession made by learned counsel
appearing before the High Court that either there was delay in
B
lodging the FIR or in sending the special report to the lllaqa
Magistrate. The High Court also completely ignored the
.,,
evidence of Dr. B.R. Sharma. The High Court acquitted the
respondents on "the possibility therefore that the defence story
"' may just be correct cannot be ignored." There was no notice
c
taken of the concession made by learned counsel for the
'\
accused persons that there could be no doubt that Dalip Kaur
had died of gun shot as wads and pellets have been recovered
from her body. Unfortunately, the High Court acquitted the
I accused from the murder of Dalip Kaur also.
'
" D
5. Learned counsel for the respondents on the other hand
submitted that the High Court has analysed the evidence in
j. great detail and found the evidence of the so called eye
witnesses to be not cogent and even the evidence of Dr. S.N.
Sharma (C.W.1) did not fit in the prosecution version and in any E
event considering the limited scope of interference with the
judgment of acquittal no interference should be made.
6. The first aspect which has been highlighted by the High
Court was purported delay in lodging the FIR. The trial Court
noted that there was in fact no delay and even if there was some F
delay the same was satisfactorily explained. The occurrence
took place at 6.30 p.m. on 11.2.1993. FIR was lodged at about
12.00 mid night. The dead body was dispatched to the mortuary
and reached there at 1.40 p.m. Police papers reached there
at 4.40 p.m. and the special report was received at 6.11 p.m. G
/.
on 12.2.1993. The explanation given to explain the so called
delay was that two sons of Mal Singh were seriously injured and
the first reaction was to provide the medical facilities to them
and accordingly he took them to Amritsar, got them admitted
H
556 SUPREME COURT REPORTS [2009} 8 S.C.R.
A to the hospital and immediately thereafter the FIR was
registered. Therefore, there is absolutely no delay in lodging
the FIR.
7. The trial Court noticed that if the special report reached
late it was fault of the investigating officer. The High Court came
B to an abrupt conclusion that the police papers reached the
doctor at 4.40 p.m. and it was therefore apparent that the FIR
could have been registered at any time prior to that fixed ~
moment. There was no reason for the High Court to conclude
II
that the FIR was registered belatedly. The investigating officer
c reached immediately after the occurrence, prepared two
inquest reports, FIR number was also received and the same
was put on the inquest reports and all the papers were required
to be handed over to the Head Constable Daljit Singh (PW-9)
who was deputed to take dead body to Mortuary.
D
8. Coming to the so called variance between the ocular
evidence and the medical evidence it was essentially because
of the weapon that was used. The High Court put unnecessary t
stress on the use of the expression 'shot' and 'shots'. Illiterate
E witnesses hardly know the difference. The exact words used
by the witness are "on receiving the fire shots the deceased
Major Singh fell down on the ground". Therefore, he has meant
definitely more than one shot and not one shot. Additionally, four ~
empty cartridges of 12 bore were recovered from the place of
incident. Therefore, obviously there should not have been one
F
shot fired. Shots fired on Dalip Kaur were clearly from the
weapon described by the prosecution as wads and pellets were
found in the wounds. As noted above, there was clear
concession by learned counsel for the accused that in the light
of the report given by Dr. Gurmanjit Rai there could be no doubt
G that Dalip Kaur had died of gun shot wounds as wads and
~
pellets have been recovered from her body. The High Court
unfortunately did not consider the relevance of this concession.
The High Court observed that the concession had been made
rightly, but it further said that there was doubt about the weapon
H
STATE OF PUNJAB v. ATMA SINGH AND ORS. 557
[DR. ARIJIT PASAYAT, J.]
'1
used on Major Singh. Even if that be so, there was no scope A
for directing acquittal of the accused persons in respect of
murder of Dalip Kaur.
9. Coming to the question of testimony of three injured eye
witnesses the trial Court noticed that their statements were B
flawless and nothing has come out in their cross examination
on the basis of which any doubt could be created about their
. veracity. The place was a secluded one. The incident took place
on the turning of the passage. The incident continued sufficiently
for a long time which was clear from the fact that many shots
were fired, firstly by Lal Singh then by his son Dial Singh
c
resulting in the death of Major Singh and his mother Dalip Kaur
and injuries to some of the witnesses.
10. The High Court discarded the credible evidence of the
4 eye witnesses on mere surmises and conjectures. D
11. It is to be noted that during the hearing of Criminal
Appeal No.406 of 1996 a Bench of the High Court hearing the
matter on 9.9.1997, came to a tentative conclusion that opinion
of the ballistic expert should be made available to the Court and E
on 8.9.2000 the expert was examined as a court witness in the
High Court. The High Court referred to the statements of Dr.
. Rai and Dr. S.N. Sharma and without any basis the High Court
said that the evidence of Dr. Rai must be given more weightage
as he conducted the post mortem examination on the dead
F
bodies. While quoting Dr. B.R. Sharma it did not notice Table
first entry LG No. of pellets 6 diameter 9.14 mm. It was in
complete accord with the evidence of CW-1 where it is stated
that LG size is 9.14 m.m. In the opinion dated 16.12.1997 it
was noted that injuries Nos. 1, 3, 5 and 7 on the person of Major
Singh could be caused by one shot provided the same G
• cartridge is loaded with four or more of the same dimension.
Though there should not be interference with the judgment of
acquittal where the view taken is a possible view, but where
conclusions are without any foundation, there is need to interfere
H
558 SUPREME COURT REPORTS (2009] 8 S.C.R.
A with the judgment of the appellate Court.
12. In the instant case the analysis done by the trial Court
was appropriate and the High Court should not have on mere
surmises and conjectures interfered with the judgment of the
trial Court and directed the acquittal. In the result, the appeals
8
are allowed. It is to be noted that respondent No.1-Atma Singh
died on 26.9.2001. Other accused persons are directed to
surrender to custody forthwith to serve the remainder of
sentence.
C 13. The appeals are allowed to the aforesaid extent.
8.8.8. Appeals allowed.
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