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NON- REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

                             CRIMINAL APPEAL NO.1237  OF 2008

GURJINDER SINGH .....APPELLANT.

        VERSUS

STATE OF  PUNJAB .....RESPONDENT

                                                    J U D G M E N T

ANIL R. DAVE, J.

1) Being aggrieved by the Judgment of conviction rendered by the  

High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 253-

DB of  2006 dated 1st February,  2008,  this  appeal  has  been filed  by the  

convict.  By virtue of impugned order, the appellant has been convicted for  

the offence under Section 302 of IPC and has been awarded sentence of  

imprisonment for life and to pay a fine of Rs.10,000/-, in default, to undergo  

further rigorous imprisonment for six months.  The order of conviction dated  

3rd March, 2006, passed by the Sessions Judge, Ferozepur, in Sessions Case  

No.33 of 2001 has been confirmed.

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2.      The case of the prosecution in a nut-shell before the trial court was as  under:

Sandeep  Singh  (who  has  been  referred  to  hereinafter  as  ‘the  

deceased’) was a resident of village Chhibian Wali.  He had lent a sum of  

Rs.5  lacs  to  Gurjinder  Singh-the appellant  and the  said amount  was not  

being returned by Gurninder Singh (hereinafter referred to as ‘the accused’).  

On the night of 9th June, 2001, the deceased and the accused, along with  

Jasbir Singh (PW-4) were going to village Chhibian Wali in Maruti Car No.  

PB-4-E  6699 from Muktsar.   The  deceased  was  driving  the  car  and  the  

accused was sitting next to him, whereas PW-4 was sitting on the rear seat.  

Around 10.30 p.m., when they were about one kilometer away from Canal  

Bridge, Ladhuwala, the accused asked the deceased to stop the car as he  

wanted to ease himself.  When the car was stopped, the accused stepped  

out of the car and went to  the back side of the car and thereafter came near  

the driver’s seat with his pistol and fired one shot on the right temple of the  

deceased and another shot on the neck of the deceased.  Upon seeing the  

said firing, PW-4 raised an alarm and thereupon the accused warned him  

that he would kill him also if he would not keep quiet and, thereafter, the  

accused fired on his own left arm and another shot below his own knee of  

the right leg.  PW-4 was afraid of the incident and thereafter he ran away  

from the place.  He, thereafter, telephoned his sister and his sister’s husband  

but he was advised to keep mum to save himself.  Thereafter, his sister and  

her husband, who were abroad, came to India and cremated the deceased.

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Thereafter, PW-4 went to police station along with his sister and her husband  

and narrated the incident to S.H.O. Harbans Singh (PW-13).   An FIR was  

lodged by him on 1st July, 2001 at 5 a.m. whereas the incident had taken  

place on 9th June, 2001.

3. It may incidentally be noted that before the aforesaid FIR was lodged,  

the accused had lodged an FIR being FIR No.118 on 10th June, 2001 at PS  

Sadar, Jalalabad.

4. On 10th June,  2001,  the  accused  had filed  the  FIR  before  Harbans  

Singh (PW-13) to the effect that when the accused and the deceased were  

returning to village Chhibian Wali from Muktsar in Maruti car along with PW-

4, who was sitting on the back seat of the car, around 10.30 p.m. when they  

reached near Canal Bridge, Ladhuwala, he saw a white gypsy belonging to  

Harcharan  Singh  parked  on  the  road.   Harcharan  Singh  and  two  other  

unknown persons, whom he did not know but he could identify if produced  

before  him,  stopped  the  car  of  the  deceased  and,  thereafter,  Harcharan  

Singh came near the driver’s window and fired at the deceased.  The bullets  

injured him on his neck and temple.  Those two unknown persons also fired  

at him and the bullets hit him on the upper side of the arm between shoulder  

and his elbow, then the accused and PW-4 tried to run away.  Thereafter,  

Harcharan Singh went away in his gypsy.  The accused and PW-4 had seen  

Sandeep Singh dead in the car.  Leaving PW-4 near the  dead body of the

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deceased,  he  went  to  police  station  and  lodged  the  FIR.   The  aforesaid  

version of the accused was recorded as FIR No.118 on 10th June, 2001.

5. After the aforesaid FIR was filed, Harbans Singh (PW-13), the S.H.O.  

went to the place of offence and prepared inquest report Ex.P.2 and took  

possession of three empty cartridges and blood stained handkerchiefs, blood  

stained glasses and one empty cartridge below the driver’s seat and one  

bullet of .32 bore weapon.  He also recorded statement of PW-4 on 1st July,  

2001.     

6. As per the report of Forensic Science Laboratory (FSL) Ex. P.51, the  

cartridges which had been received from the spot of the offence were fired  

from 7.65 mm pistol and the blood which was found from the pieces of glass  

was human blood of Group ‘B’.

7. On 2nd July, 2001, investigation of the offence had been taken over by  

sub-Inspector Kuldeep Singh (PW-12) and he had arrested the accused on  

the same day.  On 3rd July, 2001, the accused was interrogated and at his  

instance (statement Ex.P-46),  the pistol from which the bullets were fired  

was recovered from a place half a kilometer away from the culvert of a canal  

near village Ladhuwala.

8. Post mortem of the body of the deceased was conducted by Dr. Rajesh

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Kumar Sharma (PW-1) on 10th June, 2001, and it was found that there was a  

lacerated punctured wound on the right temporal region and there was a  

lacerated  punctured  wound on  the  right  side  of  the  middle  of  the  neck.  

There  was  a  dark  black  area  around  both  the  wounds.   A  lacerated  

unpunctured wound on the left side of his neck and behind the left ear lobe  

was also found.  The fourth injury on the deceased was on the back of the  

neck at the level of C6 Vertebra and 3 cm. away from the middle of the left  

side of the neck.  The cause of death was shock and hemorrhage due to  

injuries to brain and neck.  The injuries were sufficient to cause death in the  

ordinary course of nature.

9. At the time of trial, the accused denied the allegations levelled against  

him.   It  was  his  case  that  PW-4  had  planned  the  murder  and  he  had  

conspired with Harcharan Singh, with whom the accused had animosity.

10.  After examining the witnesses and upon perusal of the evidence, the  

trial court passed an order of conviction dated 3rd March, 2006.

11. Being aggrieved by the order of conviction, the aforestated appeal was  

filed before the High Court by the accused which has been dismissed and,  

therefore, the present appeal has been filed.

12 The High Court  confirmed the conviction  believing the  story  of  the  

prosecution.  The High Court agreed with the reasons assigned by the trial  

court  for  convicting  the  accused  and  the  High  Court  also  came  to  the

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conclusion that there was sufficient evidence to show that the accused had  

committed the offence.  Recovery of the pistol, self inflicted injury, presence  

of the accused at the place of the offence and other evidence convinced the  

High Court that the order of conviction passed by the trial court was just and  

proper and it dismissed the appeal.

13. Mr. Jaspal Singh, learned senior counsel, appearing on behalf of the  

accused-appellant, submitted that the order of conviction recorded by the  

trial court and confirmed by the High Court is not sustainable.  His main  

submission was to the effect that there was delay in filing the FIR on the part  

of the prosecution witness (PW-4).  Had the story narrated by PW-4 been  

correct, he would have immediately rushed to the police station to file the  

FIR but he waited for around 20 days for filing the FIR and the said delay has  

not been sufficiently explained by PW-4.

14. The learned counsel also submitted that the pistol had been recovered  

from a public  place.   It  was found from a place which was about half  a  

kilometer  away from a bridge of  Ladhuwala Uttar  and on a katcha path.  

Moreover,  the  pistol  belonged  to  Jagtar  Singh  (PW-9)  and  not  to  the  

accused.  There was sufficient evidence to show that the owner of the pistol  

was PW-9 as established from the record and, therefore, the recovery of the  

pistol  could  not  have  been a  ground  for  conviction  of  the  accused.   He  

further added that it was not established that the accused had purchased the  

pistol because no receipt for Rs. 90,000/- had been produced in evidence.

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Moreover, according to him, there was no identification of the pistol.   He  

further submitted that the parents of the deceased had not been examined  

by the prosecution, though, as per version of PW-4, he had talked to the  

parents of the deceased after the offence had been committed.  According to  

him, the FIR filed by PW-4 contained a story which was not correct. There  

was no reason for PW-4  to be afraid of anyone and yet he did not lodge the  

FIR for a long period of about 21 days.  By not examining the parents of the  

deceased,  according  to  the  learned  counsel,  there  was  suppression  of  

material witnesses by the prosecution.

15. He further submitted that the statement made by the accused leading  

to  the  recovery  of  the  pistol  had  not  been  produced  in  the  evidence.  

According  to  him,  only  memo,  which  is  in  the  nature  of  the  secondary  

evidence, was produced and, therefore, recovery of pistol  could not have  

been believed by the trial court.  According to him, even the memo, which  

revealed that in presence of ‘witnesses’ the pistol was recovered, was not  

correct  because,  in fact  there was only one witness when the pistol  was  

recovered. According to him, at the time of making a recovery memo, there  

were policemen who were not examined and there was no justifiable reason  

for not examining those policemen.   He further submitted that recovery of  

certain cartridges-bullets from the car have not been explained though only  

two  bullets  had  been  fired  at  the  deceased,  more  number  of  bullets-

cartridges had been found and there was no explanation with regard to those  

bullets-cartridges.   He  further  submitted  that  there  were  certain

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discrepancies with regard to number of parcels containing bullets-cartridges  

sent to the Forensic Science Laboratory (FSL).

16. For the aforestated reasons, according to the learned counsel, there  

were defects in the investigation and there was no conclusive evidence that  

the accused had committed the offence. He also cited several judgments so  

as to  substantiate his submissions.  He, therefore, submitted that the order  

of conviction be quashed and set aside.

17. On the other hand,  the learned public prosecutor appearing for the  

State submitted that there was proper investigation and upon appreciation of  

evidence adduced before the trial court, the trial court rightly convicted the  

accused.   According  to  the  learned  counsel  appearing  for  the  State,  the  

discrepancy, if any, with regard to identification of the pistol or the memo of  

recovery  were  so  insignificant  that  it  would  not  lead  to  any  serious  

consequences.  According to him, the prosecution had established the case  

against  the  accused  and  there  was  no  reason  to  set  aside  the  order  of  

conviction.    He had replied to all  the submissions made by the learned  

counsel appearing for the accused.

18. We have  heard  the  learned  counsel  at  length  and  have  also  gone  

through the relevant evidence.  We have also carefully gone through the  

judgments cited by the  learned counsel appearing for the accused and we  

do find that the said judgments support the legal submissions made by him.

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Upon perusal  of  the impugned judgment and judgment  of  the trial  court  

along with evidence, we are of the view that the order of conviction passed  

by the trial court and confirmed by the High Court is just and proper for the  

reasons  set  out  hereafter.   In  our  opinion,  the  trial  court  has  rightly  

appreciated the evidence and the High Court has also confirmed the order of  

conviction  for  justifiable  reasons,  duly  incorporated  in  the  judgment  and  

order  confirming the conviction.   

19. So far as the delay in filing the FIR is concerned, there appears to be  

substance in what has been stated by PW-4.  Every human being would not  

react  in  the same manner when he sees commission of  an offence.    A  

person might be bold enough to catch the offender or he might run away  

and someone might never inform the police.  Looking to the behaviour of  

PW-4, we think that though there was delay in filing the FIR  of about 20  

days, there is truth in the version given by him in the FIR.  The version given  

by him in the FIR is  correct  and his  behaviour  also  appears to be quite  

possible.  Possibly PW-4 was afraid as he was threatened by the appellant as  

stated by him and also because he had seen the offence being committed  

before him and for that reason he did not dare to go to the police station  

immediately but he talked to the parents of the deceased on telephone.  It  

has come in evidence that the parents of the deceased asked him to await  

till their arrival and thereafter he gathered courage to file an FIR only after  

having discussion with them.   The parents of  the deceased came to his

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place and gave him necessary courage and strength to tell the truth before  

the  police  authorities.   Though there  was delay  in  filing  of  the  FIR,  the  

contents of the FIR are not incorrect.

20. The story put forward by the accused in his FIR does not appear to be  

correct.  On the contrary, we find truth in the FIR filed by PW-4, because the  

injuries inflicted upon the accused prima facie appear to be self  inflicted.  

Looking to the nature of bullet injuries suffered by the accused, it is very  

clear  that  he  was  shot  from a  very  close  range.   The  said  fact  can  be  

revealed from the presence of burn injuries - black area around the wound of  

the bullet.  Had it been fired from a distance, the presence of burn injuries or  

dark  marks around the wound would not have been there.  When a weapon  

is fired from a close range, normally gun powder which comes along with the  

bullet  makes  dark  burn marks  around the wound.   Both wounds  on the  

accused are having such black marks which would not have been there if, in  

fact, he had been shot from a distance as the burnt gun powder does not go  

much far from the muzzle of the weapon.  Presence of dark burn marks  

around the wound shows that the bullet injury had been inflicted from a very  

close distance. Such burn marks would not have been there if in fact he had  

been running away from the car. Thus, the story put forward by the accused  

in his FIR about his being shot by another person does not appear to be  

correct.

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21. With regard to recovery of the pistol, the learned counsel is right that  

the pistol was recovered from a public place but it was recovered from the  

place which could not have been easily located by anyone and, therefore, the  

accused cannot get benefit which the learned counsel wanted him to get.  

From the memo of recovery, it is clear that the pistol had been  hidden by  

digging earth under a plant of Sarkanda about half a kilometer away from  

bridge of Ladhuwala Uttar.  Thus, it is very clear that the pistol had been  

hidden by digging earth under the plant of Sarkanda about half a kilometer  

away  on  the  eastern  katcha  path  from  bridge  of  Ladhuwala  Uttar  and,  

therefore, in our opinion, the recovery cannot be said to be from a place  

which could have been easily accessible to anyone.

22. With regard to recovery memo, the mistake committed in writing the  

word  ‘witness’ or ‘witnesses’ can not be said to be so material  so as to  

adversely affect the case of the prosecution.  In our opinion,  such trivial  

mistakes should not give any benefit of doubt or any sort of benefit to the  

accused.   In  fact,  the  recovery  was  made  in  presence  of  Ajaib  Singh,  

Assistant Sub Inspector and Balbir Singh, Head Constable.  It is also not  

correct  that  the  memo  of  recovery  was  not  produced  before  the  Court.  

Exhibit  P.46,  which  reveals  the  fact  about  the  statement  made  by  the  

accused in relation to pistol incorporates the entire statement made by the  

accused.   Therefore,  the said document  itself  incorporates  the statement  

made by the accused.  Moreover, simply because the recovery was in the

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presence of policemen would not adversely affect the prosecution case.  A  

police officer can be a reliable witness if the court finds him to be a truthful  

person and in that event there is no harm in relying upon his statement.  In  

the circumstances, we do not find anything objectionable if the pistol had  

been recovered in the presence of policemen.

23. With regard to ownership of the pistol, it has been established by the  

prosecution that for a sum of Rs.90,000/- the accused had purchased the  

pistol on 29-5-2001 whereas the offence had been committed on the night of  

9th June, 2001.  Thus, the pistol had already been purchased by the accused.  

It is also pertinent to note that intimation with regard to the sale of the pistol  

had also been given by the seller of the pistol Jagtar Singh (PW-9) to the  

licensing authority and the said fact was established by P.W.8 who is working  

in  the  office  of  the  D.C.,  the  Licensing  authority.   Moreover,  a  sum  of  

Rs.90,000/- was paid by the accused for purchase of the pistol which had  

been used in the offence.   Thus, with regard to ownership and possession of  

the pistol, the prosecution has proved beyond any doubt that the accused  

was not only owner of the pistol in question but was also having possession  

thereof.  It is also in evidence that the bullets which had caused injury to the  

deceased were fired from the said pistol.  Mere non-production of a receipt  

issued by Jagtar Singh (PW-9) would not make case of the prosecution weak  

as it has been duly established that the pistol was sold to the accused.

24. From the aforestated discussion and upon perusal of the evidence, we

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are satisfied that the trial court as well as the High Court, while confirming  

the order of conviction, are not in error and the order of conviction deserves  

to be confirmed.  The appeal is, therefore, dismissed.

            ...............................................

J  

                                              (Dr. MUKUNDAKAM  SHARMA)

                                                              ................................. .......J.                                                      (ANIL R. DAVE) New Delhi February 18, 2011