BABLE @ GURDEEP SINGH Vs STATE OF CHATTISGARH TR.P.S.O.P.KURSIPUR
Bench: SWATANTER KUMAR,RANJAN GOGOI
Case number: Crl.A. No.-000106-000106 / 2010
Diary number: 3630 / 2007
Advocates: R. D. UPADHYAY Vs
DHARMENDRA KUMAR SINHA
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.106 OF 2010
Bable @ Gurdeep Singh … Appellant
Versus
State of Chattisgarh Tr.P.S.O.P. Kursipur … Respondent
J U D G M E N T
Swatanter Kumar, J .
1. The present appeal is directed against the judgment of the
High Court of Judicature at Chattisgarh at Bilaspur dated 15th
November, 2006 wherein the High Court maintained the
judgment of conviction and order of sentence passed by the
learned Fourth Additional Sessions Judge, Durg, Chattisgarh,
convicting the appellants for an offence under Section 302 read
with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’)
and awarding life sentence to them. Though there were three
accused before the trial court, the present appeal has been
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preferred only by appellant/accused No.1, Bable @ Gurdeep
Singh. While impugning the judgment under appeal, the learned
counsel appearing for the appellant has, inter alia, but primarily
raised the following arguments:
1. The injuries found on the person of the accused have not been
explained by the prosecution. The deceased having suffered
serious injuries that are stated to have been inflicted by the
accused, could not have been in a condition to inflict any
injuries upon the person of the accused. This leads to the
conclusion that the accused had been assaulted by the
deceased before the deceased himself suffered the injury. The
injuries were admittedly found on the person of the accused.
The prosecution has failed to explain such injuries. This
failure on the part of the prosecution renders the story of the
prosecution not only improbable but unbelievable as well.
2. Assuming, though not admitting, that the incident has been
proved, the accused was entitled to the right to private defence
as he was attacked and he caused the injuries in the process of
protecting himself. Thus, the contention is that the
accused/appellant cannot be convicted under Section 302 IPC
and his conviction under Section 302/34 IPC cannot stand the
scrutiny of law.
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3. Further the appellant states that the informant Tariq Shakil,
PW1, had turned hostile. The FIR not being a substantive
piece of evidence, would discredit the entire case of the
prosecution. The Courts, in the judgments under appeal, have
failed to appreciate the evidence in its proper perspective and
hence the judgments are liable to be set aside.
4. Lastly, the dying declaration is not corroborated by other
prosecution witnesses and no details have been furnished
therein. As such the Courts could not have relied upon the
said dying declaration.
2. Before we proceed to deliberate upon the legal and factual
aspects of the case with reference to the arguments advanced, it
would be necessary to refer to the case of the prosecution in brief.
3. On 14th May, 1999 at about 10.15 p.m., when Tariq Shakil,
PW1, was sitting in his S.T.D.-P.C.O. shop situated at New
Kursipur, Gurunanak Chowk, one Guddu @ Jiten Soni, PW12,
came there and informed PW1 that the accused Sardar Bable is
quarrelling with Ishwari Verma in front of his shop. Upon
hearing this, PW1 closed his shop and went along with PW12 to
the place of occurrence. The accused Bable was carrying a sword
in his hand and was running towards them. Being frightened,
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both of them went towards a street. After sometime, there was a
noise that the accused Bable had caused injuries to Ishwari
Verma and the said victim was lying in injured condition. He was
removed to BSP Hospital, Sector 9, by his uncle Balwant Verma,
PW14, where he was admitted. Dr. A.D. Banerjee, PW2, had
examined him and declared him brought dead. A written report
in this regard was prepared being Ex.P5. The matter was reported
to Bhilai City Police Station. Even a telephonic message was sent.
Sub-Inspector, Suresh Bhagat, PW10, posted at that Police
Station registered the case under Section 174 Cr.P.C., Ex.P-22.
On the same day at about 12.15 a.m. in the night, PW1 got the
First Information Report (FIR), Ext.P-1, of the incident registered
at Police Station Kursipur and a case under Section 302 IPC was
registered. The Investigating Officer, Sub-Inspector P.N. Singh,
PW13 took up the investigation and went to the site. He prepared
the site plan, Ex.P14, seized blood-stained earth, plain earth and
a piece of chain of the watch and for that he prepared a seizure
memo Ex.P-20. He also prepared the inquest report vide Ex.P4,
in presence of the Panchas. The post mortem examination of the
body of the deceased was performed by Dr. S.R. Surendra, PW5
at 11.30 a.m. on 15th May, 1999. The post mortem report was
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submitted vide Ext.P-8 which noticed the following injuries on the
body of the deceased: -
“1. Incised wound 5 c.m. x ½ c.m. upto bone deep red colour longitudinal on anterior its and middle of scalp.
2. Incised wound 8 c.m. x 1 c.m. up to bone deep red colour. Margin everted oblique anterior and right side of scalp.
3. Incised wound 3 c.m. x ¼ c.m. ¼ c.m. above left ear.
4. An abrasion 9 c.m. x ½ c.m. long below left ear.
5. An abrasion 6 c.m. x ½ c.m. neck colored below the first wound.
6. Incised wound 5 c.m. x ½ c.m. x ½ c.m. on left shoulder laterally.
7. Incised wound 1 c.m. x ½ c.m. x ½ c.m. on left shoulder anteriority.
8. Amputation middle finger from terminal phalages.
9. Ring finger also cut from terminal phalages from palmer aspect only.
10. Incised wound 8 c.m. x ½ c.m. x ½ c.m. red coloured on upper part and lateral surface of right arm.
11. Abrasion 2 c.m. x 2 c.m. red coloured on lower part and lateral surface of right upper arm.
12. Incised wound 7 c.m. x ½ c.m. x ½ c.m. lateral surface of elbow.
13. Incised wound 15 c.m. x 4 c.m. x 3 c.m. deed exposed tendon and blood vessel
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visible through wound. On lower part and medial surface of right fore arm.
14. Incised wound of 4 c.m. x 4 c.m. between right hand thumb and index finger. Bone of index finger visible through the wounds.
15. Perforated wound directed from behind, anteno laterally, 4 c.m. above the left knee joint. Wound entry cut of post medially size 4 c.m. x 3 c.m. oblique. On dissection popliteal artery is found cut.”
4. The cause of death has been recorded as unconsciousness,
which occurred prior to death and had arisen due to the injuries
caused by some pointed sharp edged weapon.
5. The accused were arrested on the basis of their disclosure
statements Exts.P-15, P-16 and P-26. Weapons used in the crime
were seized and seizure memo was prepared vide Exts.P-17, P-18
and P-27. Blood stained clothes were recovered from the accused
Bable and seizure memo Ext.P-19 was prepared. Sealed clothes
of the deceased received from the Hospital were seized and
seizure memo was prepared vide Ext.P.29. The seized articles
were sent for chemical examination.
6. It is further the case of the prosecution that the people
around the place of the incident had seen the occurrence.
Immediately thereafter, sister-in-law of the deceased, Janki,
PW11 and uncle Balwant PW14 had reached the place of the
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incident. Balwant, PW14, had enquired from the deceased as to
who were the assailants. After he gave the names, the accused
persons were arrested and they made disclosure statements, as
stated above.
7. It is noteworthy that the appellant Bable @ Gurdeep Singh
had stated that on the date of incident, he was returning after
collecting money for the milk supplied to the Thelawala at about
1-1.30 a.m. in the night. He saw Ishwari, Dalip, Dimple and Bage
quarrelling at Gurunanak Chowk. He enquired from Ishwari (the
deceased), who was his friend, as to what had happened.
Ishwari, without any provocation, abused him and inflicted injury
on his head with the sword that he was carrying. Thereupon, the
accused ran away. Dalip and Prakash saw him running away.
After some time of leaving the place, he lodged a police report of
this incident giving details of the injuries that he had suffered
and, in fact, he was medically treated and five stitches were put
on his head. According to him, he had been falsely implicated in
the present case.
8. The accused persons faced the trial and the learned Trial
Court, vide its detailed judgment dated 27th February, 2001 held
all the accused persons guilty of an offence under Section 302
read with Section 34 IPC for causing death of the deceased in
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furtherance of their common intention and sentenced them to
undergo life imprisonment. Upon appeal by the accused persons,
the High Court came to the conclusion that the oral dying
declaration was not corroborated by the FIR as the names of two
accused, namely, Pappi alias Arjun Singh and Vikky alias Vikram
were not mentioned in the latter and held that there was no legal
and clinching evidence to implicate these two accused persons
and hence the Court acquitted both of them. In relation to Bable
alias Gurdeep Singh, the High Court sustained the findings,
judgment of conviction and order of sentence passed by the Trial
Court. Legality and correctness of this judgment of the High
Court dated 15th November, 2006 has been assailed in the
present appeal.
9. Reverting to the submissions made on behalf of the
appellant, we may refer to the fact that the FIR had been lodged
upon the statement of PW1. PW1 did not completely support the
case of the prosecution and with the permission of the Court he
was declared hostile. The contention is that the case of the
present appellant would also stand equated to the case of the two
acquitted accused persons and the High Court has fallen in error
of law in not acquitting the accused-appellant as well. It cannot
be denied that the FIR Ext.P-1 was registered upon the statement
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of PW1 and he himself has not supported the case of the
prosecution, which creates a doubt in the case of the prosecution.
10. Once registration of the FIR is proved by the Police and the
same is accepted on record by the Court and the prosecution
establishes its case beyond reasonable doubt by other admissible,
cogent and relevant evidence, it will be impermissible for the
Court to ignore the evidentiary value of the FIR. The FIR, Ext. P1,
has duly been proved by the statement of PW10, Sub-Inspector
Suresh Bhagat. According to him, he had registered the FIR upon
the statement of PW1 and it was duly signed by him. The FIR
was registered and duly formed part of the records of the police
station which were maintained in normal course of its business
and investigation. Thus, in any case, it is a settled proposition of
law that the FIR by itself is not a substantive piece of evidence
but it certainly is a relevant circumstance of the evidence
produced by the Investigating Agency. Merely because PW1 had
turned hostile, it cannot be said that the FIR would lose all its
relevancy and cannot be looked into for any purpose. In the
present case, PW11 and PW14 are the two persons who had
reached the place of incident immediately after the occurrence.
They were instantaneously told by the deceased as to who the
assailants were. They have substantially supported what had
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been recorded in the FIR which further stands corroborated by
the medical evidence and the statements of other witnesses. In
these circumstances, we cannot discredit the statements of PW11
and PW14 merely because PW1 has turned hostile. Besides this,
in furtherance to the statements of the accused persons, recovery
of the weapons used in the crime was effected.
11. The dying declaration made by the deceased to PW14 cannot
be lost sight of by the Court. To the rule of inadmissibility of
hearsay evidence, oral dying declaration is an exception. The
dying declaration in this case is reliable, cogent and explains the
events that had happned in their normal course which was not
only a mere possibility but leaves no doubt that such events
actually happened as established by the prosecution. Once there
exists reliable, cogent and credible evidence against one of the
accused, the mere acquittal of other accused will not frustrate the
case of the prosecution. Where the High Court, exercising its
judicial discretion ultra-cautiously, acquitted the unnamed
accused in the FIR, there the High Court for valid reasons held
the present appellant guilty of the offence. The High Court had
recorded reasons in support of both these conclusions. [Ref.
Krishan Lal v. State of Haryana [(1980) 3 SCC 159].
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12. Thus, we find that the present appellant cannot derive any
benefit from the acquittal of the two other accused persons, with
which this Court is not concerned as the State has not preferred
any appeal against the decision of the High Court. Moreover, the
case of the prosecution is not merely based on the dying
declaration made by the deceased to PW14 but there also exist
other circumstances which support the view in favour of guilt of
the appellant, i.e., the disclosure made by the appellant and the
consequent recovery of the weapons used in the crime, the
statement of Investigating Officer, PW13, the statement of the
doctor, PW5, and, in fact, the own version of the accused in
relation to the incident.
13. In the present case, the accused had led defence before the
Trial Court and examined as many as four witnesses in support
thereof. DW4, Head Constable Manharan Yadav stated that he
was posted as a Constable at PS Kursipur outpost on 14th May,
1999. At about 22:45 hrs., the appellant Bable @ Gurdeep Singh
appeared and reported orally that while he was going in a
drunkard condition behind the Gurdwara, Ishwari met him on
the way who posed to be a dada. He along with Manpreet, who
was armed with lathi, caused injuries to both of his hands, head
and then he had come to lodge a report. In furtherance to this
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report, the accused was examined by DW1, Dr. Praveen Chandra
Agarwal, who noticed six injuries on the person of the accused
and found that injury Nos.1 to 3 had been caused by some hard
and sharp-edged weapon and injury Nos.4 to 6 were caused by
some hard and blunt weapon and all the injuries were caused
within 24 hours. The appellant is also stated to have been
smelling of liquor at that time but was not intoxicated. Further,
injury Nos.2 to 6 were simple in nature and for injury No.1, X-ray
of the skull, was advised but that also was not found to be
grievous. In view of the nature of injuries suffered, the story
advanced by the accused can hardly be believed. Where the
deceased suffered fatal injuries, the accused despite having been
assaulted by two people with lathi and weapon just suffered
simple injuries. Thus, the possibility of the injuries being self-
inflicted or having been suffered in some other way cannot be
ruled out.
14. The legislative scheme contained under the provisions of
Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C.) is
to put to the accused all the incriminating material against him
and it is equally important to provide an opportunity to the
accused to state his case. It is the option of the accused whether
to remain silent or to provide answer to the questions asked by
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the Court. Once the accused opts to give answers and, in fact,
puts forward his own defence or the events as they occurred, then
the accused is bound by such statement and the Court is at
liberty to examine it in light of the evidence produced on record.
15. In the present case, the accused had opted to give an
explanation, as aforenoticed. It was for the accused to satisfy the
Court that his explanation was true and correct. Both the Courts
below have concurrently rejected the explanation offered by the
accused. On the contrary, they have found the said explanation
to be factually incorrect. It was for the prosecution to explain the
injuries on the person of the appellant as to when, how and by
whom they were inflicted as also the fact whether they were
inflicted during the occurrence in question or elsewhere? Of
course, the prosecution has not rendered any explanation as to
how the appellant had suffered these injuries but that by itself is
not sufficient to believe that the appellant is innocent and the
explanation rendered by him is established ipso facto. The onus
is still on the appellant-accused to prove that his explanation is
correct and in accordance with law. In the present case, the
accused has stated that the deceased was carrying a sword and
when he enquired from him as to why the other persons were
quarrelling with and beating him, the deceased had assaulted
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him with the sword. Firstly, if a person is assaulted with a
sword, there is hardly any likelihood of him to suffer injuries of
the kind that the appellant had suffered; secondly, in the FIR,
Ext.D-2, which he had got registered, it is specifically stated that
the injuries were caused by lathi by the deceased. Thus, there is
apparent contradiction of serious nature (as to the weapon used
in committing the said assault against the appellant). Thirdly,
the doctor (DW1) who had examined him, in his report had
nowhere noticed as to how the accused had suffered those
injuries. Even in his explanation under Section 313 Cr.P.C., the
appellant has not stated that he had consumed liquor whereas,
according to the doctor, the appellant was smelling of liquor
though he was not intoxicated. Lastly, the explanation offered by
the appellant seems to be very unnatural and opposed to normal
behavior of a human being. The appellant claims to be a friend of
the deceased and that he had asked the deceased as to why
others were quarrelling with him and had intended to help the
deceased. If that be so, no person, in his senses, is likely to
cause injuries to a well wisher, that too, with a sword. All these
circumstances show that the explanation offered by the accused
is neither plausible nor true.
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16. But, because of lodging of FIR, Ext D2, and his statement
under Section 313 of the Cr.P.C., one fact that completely stands
established and is undisputable is that the appellant was present
at the place of occurrence and also that he had a fight with the
deceased. Once these two circumstances are admitted, they fully
provide corroboration to the dying declaration, the statements of
PW11 and PW14 as also the other material evidence led by the
prosecution. If the appellant was carrying a sword and others
were carrying lathis, it is not understable as to how could the
deceased suffer as many as 15 injuries including the incised
wound, abrasions, amputation of middle finger from terminal
phalages and other serious injuries and the appellant merely
suffered six simple injuries. This itself belies the stand taken by
the appellant. In any case, the deceased could not have caused
injuries to any other person as in consequence of the assault
upon himself, he would have had no strength left to cause any
injury to others. Strangely, the accused denied all other
questions as ‘maloom nahin’ (don’t know) or ‘incorrect’ and gave
explanation which is not worthy of any credence.
17. For the reasons aforestated, we find no merit in the present
appeal and the same is dismissed.
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.…................................J. [Swatanter Kumar]
.…................................J. [Ranjan Gogoi]
New Delhi; July 10, 2012.
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