MANJIT SINGH Vs THE STATE OF PUNJAB
Bench: HON'BLE MR. JUSTICE A.M. KHANWILKAR, HON'BLE MR. JUSTICE DINESH MAHESHWARI
Judgment by: HON'BLE MR. JUSTICE DINESH MAHESHWARI
Case number: Crl.A. No.-001079-001079 / 2011
Diary number: 12728 / 2008
Advocates: KAMINI JAISWAL Vs
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1079 OF 2011
MANJIT SINGH ….APPELLANT(S)
Vs.
THE STATE OF PUNJAB ….RESPONDENT(S)
WITH
Criminal Appeal No. 1076 of 2011
JUDGMENT
Dinesh Maheshwari, J.
1. These two appeals by special leave are directed against the common
judgment and order dated 11.03.2008, as passed by the High Court of Punjab
and Haryana at Chandigarh in Criminal Appeal Nos. 373 DB of 2005 and 350
DB of 2005 with other connected matters whereby, the High Court has upheld
the judgment and order dated 28/30.03.2005 by the Sessions Judge, Barnala
in Sessions Case No. 21 of 2001, convicting and sentencing the accused-
appellants for multiple offences, including those punishable under Sections
148, 302/149, 323, 324 and 326/149 of the Indian Penal Code (‘IPC’).
2. Put in brief, the relevant background aspects of the matter are as
follows:
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2.1. The prosecution case has been that on 03.03.2001, the deceased Dalip
Singh, Rajinder Pal Singh (PW-5), Gurnam Singh (PW-6) and the complainant
Beant Singh1, all residents of Village Mehal Kalan had gone to Barnala Court
Complex in connection with the hearing in a criminal case pertaining to FIR
No. 67 of 1997, Police Station Mehal Kalan, that was adjourned. That very
day, the accused persons Manjit Singh2, Labh Singh, Avtar Singh, Bakhtaur
Singh, Sukhwinder Singh3, Prem Kumar, and Narain Datt, had also been to
the same Court Complex to attend the proceedings in a complaint case of the
appellant Manjit Singh, that was also adjourned. At about 11.15 a.m., when
Gurnam Singh, Beant Singh, Rajinder Pal Singh and Dalip Singh were about
to board their car near the cabin of typists in the Court Complex, they were
attacked by the accused persons.
2.2. It was alleged that for carrying out the assault in question, five of the
accused persons carried different weapons, where the appellant Sukhwinder
Singh as also Labh Singh and Avtar Singh were armed with kirpans; Bakhtaur
Singh was armed with kirpan and ghop; and the appellant Manjit Singh was
armed with kirch whereas Prem Kumar and Narain Datt were empty handed.
According to the allegations, with exhortation by the appellant Manjit Singh,
the accused persons carried out the assault in the manner that Labh Singh
gave kirpan blow aiming at the head of Beant Singh, who raised his hands
1 The complainant Beant Singh was examined as the first witness in the trial but he expired before completion of his statement.
2 The appellant of Cr. A. No. 1079 of 2011
3 The appellant of Cr. A. No. 1076 of 2011
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and the blow hit his right hand; the appellant Sukhwinder Singh aimed his
kirpan blow on the head of Dalip Singh but since he raised his hands, the blow
hit his right hand; Bakhtaur Singh gave a blow of ghop on the head of Dalip
Singh; Prem Kumar and Narain Datt caught hold of the arms of Dalip Singh
and Bakhtaur Singh gave another ghop blow on the head of Dalip Singh; Avtar
Singh gave a blow of his kirpan on the left leg of Gurnam Singh; Bakhtaur
Singh also gave three blows of ghop on the left cheek, back of the chest and
left thigh of Gurnam Singh; the appellant Manjit Singh gave the blows of his
kirch, hitting Rajinder Pal Singh on the right hand and on the left hand thumb;
and the appellant Sukhwinder Singh hit Gurnam Singh on the back by the
handle of his kirpan.
2.3. It was further alleged that upon such an assault, the injured raised
alarm whereupon, Amarjit Singh, Balbir Singh, Jit Singh and Gurdeep Singh
reached the spot. The injured were taken to the hospital. Upon receiving a
message from the hospital, Surinder Pal Singh (PW-9), SHO, P.S. Kotwali
went to the hospital and sought the opinion of doctor about fitness of the
injured for taking their statements; the injured Beant Singh was declared fit
and his statement was recorded at 2.30 p.m., which led to the registration of
FIR No. 56 of 2001 for the offences punishable under Sections 307, 148, 149,
120-B IPC. The statements of the injured Rajinder Pal Singh and Gurnam
Singh were also recorded. However, the injured Dalip Singh was not found fit
for making any statement; he was referred to Rajindra Hospital, Patiala; and
he was, thereafter, shifted to Dayanand College and Hospital, Ludhiana. He
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remained hospitalised until 12.03.2001 but the attempts by ASI Gulab Singh
(PW-11) to record his statement did not materialise. The injured Dalip Singh,
ultimately, expired on 12.03.2001 at 4.30 p.m.; the post mortem of his dead
body was conducted on 13.03.2001 at Civil Hospital, Ludhiana. In sequel, the
offence punishable under Section 302 was added to the FIR.
2.4. On 08.03.2001, the accused persons Bakhtaur Singh, Labh Singh and
Avtar Singh were arrested. The weapon ghop was recovered in pursuance of
the disclosure statement of Bakhtaur Singh whereas one kirpan was
recovered on the disclosure statement of Labh Singh and another kirpan was
recovered on the disclosure statement of Avtar Singh. On 14.03.2001, the
appellant Sukhwinder Singh was arrested and in pursuance of his disclosure
statement, yet another kirpan was recovered.
2.5. In the course of investigation, the soil splattered with blood was
collected from the place of occurrence; site plan was prepared; and
statements of other witnesses were recorded. As per the FSL report, the
ghop, three kirpans and soil recovered from the place of occurrence were
found to be stained with human blood.
2.6. On 24.03.2001, while the other accused persons were charge-sheeted
for various offences but, the present appellant Manjit Singh as also Prem
Kumar and Narain Datt were allegedly found not involved in the crime and
they were kept in column No.2 by the Investigating Officer (‘IO’). After
committal of the case to the Sessions Court and after framing of charges, the
complainant Beant Singh was examined as the first witness of the prosecution
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on 11.09.2001 but his deposition remained incomplete. This very day, the
complainant Beant Singh moved an application under Section 319 of the Code
of Criminal Procedure (‘CrPC’) for proceeding against the appellant Manjit
Singh as also against the said Prem Kumar and Narain Datt, who were
summoned by the Trial Court by its order dated 19.09.2001. Thereafter,
charges were framed against all the accused persons, inter alia, for the
offences under Sections 302, 148, 326, 325, 323 IPC. The prosecution
sought leave under Section 321 CrPC to withdraw the case against the
appellant Manjit Singh and the said Prem Kumar and Narain Datt but this
prayer was declined by the Trial Court by its order dated 09.11.2002 against
which, Cr.R. No. 2413 of 2002 and C.M. No. 2248 of 2002 were filed before
the High Court that were also dismissed by the order dated 14.10.2003.
Further, the petition for Special Leave to Appeal No. 5740 of 2003 filed in this
Court was also dismissed by the order dated 17.01.2004.
3. In the trial, the prosecution examined several witnesses, including the
injured eye-witnesses Rajinder Pal Singh as PW-5 and Gurnam Singh as PW-
6; the medical officer Dr. Subhash Singla, who had initially examined the
injured persons and had prepared the injury reports, as PW-1; and Dr. Jasbir
Singh, who had conducted post-mortem on the dead body of Dalip Singh, as
PW-7.
3.1. The eye-witnesses, Rajinder Pal Singh and Gurnam Singh, PW-5 and
PW-6 respectively, gave the ocular account of the entire incident. PW-5
Rajinder Pal Singh categorically stated that the assault commenced when the
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appellant Manjit Singh instigated the other accused persons to attack the
complainant and his companions. This witness provided a detailed description
of participation and involvement of each of the accused in conformity with the
version occurring in the FIR. His testimony was corroborated on all the
material particulars by PW-6 Gurnam Singh. As noticed, the testimony of the
informant Beant Singh remained incomplete due to his demise.
3.2. The appellant Manjit Singh, while denying the allegations in his
statement under Section 313 CrPC, gave a purportedly detailed account that
the complainants were annoyed with Prem Kumar, Narain Datt and himself for
the reason that they had given evidence in the case of rape and murder of a
co-village girl KK*4, where the offence was allegedly committed by the relatives
of the complainant and the injured witnesses. We shall refer to the relevant
part of the statement made by the appellant Manjit Singh under Section 313
CrPC hereafter a little later.
3.3. In defence evidence, the accused persons got examined as many as 13
witnesses. These had been as follows: DW-1 Dr. A.K. Singla, the handwriting
and fingerprint expert in relation to the signatures of Rajinder Pal Singh on the
court summons and jail records; DW-2, Head Constable Jaswinder Singh in
relation to the fact that DW-3 was deployed as driver of the vehicle in which
the undertrials were brought to the Court Complex; DW-3 Head Constable
Jora Singh, as the alleged eye-witness to the incident; DW-4 Gurcharan Singh
Dhaliwal, Advocate who was allegedly present near the scene of crime; DW-5
4 The name of the said victim girl is not required to be mentioned and she is referred as KK* herein.
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Lakhwinder Singh, the then Superintendent of Police (D) at Barnala; DW-6
Constable Amarjit Singh, another alleged eye-witness who had intervened in
the fight that had occurred between the two groups; DW-7 Head Constable
Gurcharan Singh; DW-8 J.N. Sharma, Advocate; DW-9 Kulwant Singh,
Member Panchayat of Village Dhaner; DW-10 Manjit Singh, teacher in Govt.
High School, Wazidke Khurd; DW-11 Rajinder Kumar ALM, PSEB Mehar
Kalan; DW-12 Darshan Kumar, Head Warden, Sub-Jail, Barnala; and DW-13
Santokh Singh, Maths Teacher in Govt. High School, Wazidke Khurd.
4. In its judgment and order dated 28/30.03.2005 in Sessions Case No. 21
of 2001, the Trial Court carried out in-depth analysis of the prosecution
evidence, including the testimony of injured eye-witnesses PW-5 and PW-6
and the medical officers, PW-1 and PW-7. The Trial Court also carried out an
equally thorough analysis of the evidence adduced by the accused and, after
finding that the defence witnesses were either irrelevant or unreliable, rejected
the defence theories and found it proved beyond reasonable doubt that the
accused joined together and attacked the complainant Beant Singh and his
companions, causing various injuries to several persons and fatal injury to
Dalip Singh. The conclusion of the Trial Court in relation to the present
appellants as also cumulatively in relation to all the accused persons, as
occurring in paragraphs 45 to 48 of the judgment dated 28.03.2005, could be
usefully reproduced as under:-
“45. Accused Manjit Singh as per PW1 is proved to have caused two injuries on the person of Rajinder Pal Singh by means of Kirch and which M.L.R. Ex. PD and X-ray report
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Ex. PD/2 shows that both these injuries No. 1 & 2 are by sharp means and injury No. 3 which is reddish contusion is not attributed to any of the accused.
46. Accused Sukhwinder Singh is opined to have caused a blunt injury by the handle of the Kirpan on the person of Gurnam Singh on the back of the chest opined to be abraded contusion ad that Sukhwinder Singh is also proved to have caused injury to Dalip Singh on right hand by means of a Kripan and which injury as per M.L.R. Ex. PA which is incised wound, caused by sharp edged weapon is deemed to be simple in view of lack of evidence in this regard.
47. That there is abundant evidence to show that accused persons with a common object armed with deadly weapons have rioted while assaulting the complainant side.
48. So, from the overall evidence of the prosecution by way of ocular evidence of the eye-witnesses account, the medical evidence coupled with circumstantial evidence overwhelmingly point out towards the guilt of the accused in the commission of the offence for which they have been charged. The accused are thus held guilty and convicted as detailed below:- i) All the accused U/S 148 of IPC ii) Accused Bakhtaur Singh U/S 302 and 323 IPC iii) All the co-accused (Numb 6) of U/S 302/149 IPC and accused Bakhtaur Singh U/S 323/149 IPC iv) Accused Sukhwinder Singh U/S 324 IPC & 323
IPC v) All six co-accused of accused U/S 324/149 IPC and Sukhwinder Singh U/S 323/149 IPC vi) Accused Labha Singh U/S 324 IPC vii) All the six co-accused U/S 324/149 IPC viii) Accused Avtar Singh U/S 326 IPC ix) All the six co-accused of accused U/S 326/149 IPC Avtar Singh x) Accused Manjit Singh U/S 324 IPC xi) All the six co-accused of accused U/S 324/149 IPC Manjit Singh”
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4.1. In accordance with the conclusion aforesaid, the accused persons were
awarded varying sentences, including that of life imprisonment.
5. Against the order of conviction, the appellants and the co-accused
preferred separate appeals before the High Court and pending disposal of
appeals, the sentence awarded to the appellant Manjit Singh as also Prem
Kumar and Narain Datt were suspended. Thereafter, by an order dated
24.07.2007, the then Hon’ble Governor of Punjab, in exercise of his power
under Article 161 of the Constitution of India, granted pardon to the appellant
Manjit Singh as also to the two co-accused persons Prem Kumar and Narain
Datt; and directed that they be released with immediate effect. This order
granting pardon was also challenged before the High Court by way of writ
petition bearing No. 2147 of 2008 that was taken up for consideration together
with the appeals filed against conviction. While passing the final common
judgment and order dated 11.03.2008, the High Court, after dealing with the
contentions urged on behalf of the appellants herein and the co-accused, while
extended benefit of doubt to Prem Kumar and Narain Datt but, affirmed the
conviction of the other five accused persons, including the appellants herein
and also set aside the order granting pardon5 while observing, inter alia, as
under:-
5 This part of the common judgment dated 11.03.2008, setting aside the order passed by the Hon’ble Governor of Punjab granting pardon to the appellant Manjit Singh, was separately challenged in this Court in C.A. Nos. 2058-59 of 2011 [arising out of SLP (C) No. 11544 of 2008]. On 24.02.2011, this Court remanded the matter to the Governor of Punjab for fresh consideration in accordance with law. We were informed during the course of hearing that no fresh decision has been taken after such remand. Be that as it may, in view of the fact that the subject matter of the present appeals relates to the conviction and sentencing of the appellants, no further dilation on the matter relating to the grant of pardon is requisite herein.
9
“23. We are of the view that case of the prosecution stands fully established against Sukhwinder Singh, Labh Singh, Bakhtaur Singh, Avtar Singh and Manjit Singh, while Narain Datt and Prem Kumar are entitled to benefit of doubt.
24. PW5 Rajinder Pal Singh has fully supported the version given in the statement of Beant Singh on the basis of which, FIR was recorded. He has confirmed the role of all the accused. Occurrence took place in the broad day light. Identity of the accused was known to the witnesses. Rajinder Pal Singh is nephew of the deceased Dalip Singh. FIR was prompt. There is no improbability in the accused assaulting the deceased and the witnesses in the manner alleged. There is no serious infirmity in the evidence of PW5 Rajinder Pal Singh. His version is consistent and reliable. The assault was clearly re-mediated as five of the accused came with weapons. His version is fully supported by PW6 Gurnam Singh. Though, cross-examined at length, their testimony remained unshaken. The version of the said witnesses is duly corroborated by medical evidence. We are not in agreement with the observation of the trial Court that evidence of Beant Singh could be relied upon. Excluding evidence of Beant Singh, who died before cross- examination, does not in any way affect the case of the prosecution.
25. Reference to the statement of PW5 Rajinder Pal Singh shows that Manjit Singh raised an exhortation to the co- accused to take revenge. He was armed with a ‘kirch’. Mere non-recovery of ‘kirch’ is not by itself of any consequence once his participation in giving exhortation and causing assault is established….His role is established by medical evidence of examination of Rajinder Pal Singh PW5, who had two injuries with a sharp-edged weapon. Manjit Singh not only gave one blow but also repeated the blow to Rajinder Pal Singh. PW-5 Rajinder Pal Singh could not have made any mistake in implicating Manjit Singh. Contention that Manjit Singh was implicated on account of enmity, cannot be accepted. It is well known that enmity is a doubled edged weapon and the same reason could have provided motive to Manjit Singh. His role is specific and is duly corroborated. He was the first to initiate the assault.”
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5.1. The High Court, after examining the defence evidence as also other
material on record, rejected the defence contentions, including the plea of alibi
of the appellant Manjit Singh, in the following: “32. We do not find any merit in the contention that the death of Dalip Singh was not on account of injuries caused by Bakhtaur Singh but only on account of surgical injuries or that the injuries were not sufficient in the ordinary course of nature to cause death of Dalip Singh. It is clear that the death of Dalip Singh was on account of injuries caused by the accused Bakhtaur Singh. Intention of causing death can be clearly inferred. Sukhwinder Singh also assaulted Dalip Singh but he received injuries on the hand instead of on the head. Though, Labh Singh and Avtar Singh caused injuries to Beant Singh and Gurnam Singh respectively, they cannot avoid responsibility for the consequences, which could easily be foreseen by them in respect of injuries caused to Dalip Singh. Same is the position with regard to accused Manjit Singh. There is no reliable evidence to accept the plea of alibi raised by Manjit Singh. We have thus no hesitation in upholding conviction of Sukhwinder Singh, Labh Singh, Avtar Singh, Bakhtaur Singh and Manjit Singh.”
5.2. After upholding the conviction and the sentence of five of the accused
persons including the appellants, the High Court also examined the question of
validity of the order granting pardon to the appellant Manjit Singh and in that
regard, after a detailed survey of the case law relating to the power to grant
pardon/remission and its judicial review, found that in the present case, the
power was exercised only on the perceived public opinion that was clearly
impermissible. However, as observed hereinbefore, this aspect of the matter
needs no further dilation herein. 6. Assailing the judgment and order aforesaid, affirming their conviction
and upholding the sentence as awarded, the appellants have preferred the
present appeals.
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6.1. Learned counsel for the appellant Manjit Singh has strenuously argued
that so far this appellant is concerned, it is amply established in evidence that
he was not present at the scene of the incident in question; and has
particularly referred to the statement of DW-9 to submit that on the date of
incident, the appellant Manjit Singh was present before the said witness at
11.30 a.m. at village Dhaner, that was about 25 kms from the Barnala Court
Complex and hence, his presence at the scene of crime at 11.15 a.m. is totally
ruled out. Learned counsel has contended that the Trial Court as also the
High Court have rejected the plea of alibi without assigning cogent reasons
and the same has resulted in serious miscarriage of justice. The learned
counsel has argued that the High Court has failed to appreciate the fact that
there existed previous enmity between the family of the deceased and the
appellant herein because of which, he has been implicated in the said case. In
this regard, learned counsel has particularly referred to the fact that PW-5
Rajinder Singh is the brother of Jagraj, who was involved in the aforesaid rape
and murder case, that was keenly pursued by the appellant Manjit Singh. The
learned counsel has yet further argued that there has not been any evidence
as regards common object of the accused persons; no independent witness
has been examined; and then, no weapon of offence was recovered at the
instance of the appellant. Therefore, according to the learned counsel,
conviction of the appellant is not justified. The learned counsel has referred to
the decisions in Sikandar Singh & Ors. v. State of Bihar: (2010) 7 SCC 477
and Subal Ghorai v. State of West Bengal: (2013) 4 SCC 607.
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6.2. Learned counsel for appellant Sukhwinder Singh has submitted that
there are material contradictions in the medical evidence as also the ocular
version and in any case, the essential ingredients of Section 141 IPC, for
formation of an unlawful assembly are not established and, therefore, the
conviction of the appellant under Section 302 with the aid of Section 149 IPC
is not justified. According to the learned counsel, the only accusation against
this appellant is that he had caused simple injury on the little finger of the
deceased Dalip Singh and had used the handle of the kirpan to cause injury to
PW-5 Rajinder Pal Singh and, on these accusations, the case against this
appellant cannot travel beyond the offences of Sections 324 and 323 IPC for
which, he has already undergone imprisonment for a period of over 4 years
and 10 months. The learned counsel has referred to the decision in Govind
Singh v. State of Chattisgarh: (2019) 7 SCALE 20.
7. Per contra, learned counsel for the State has supported the conviction
of appellants with the submissions that the Trial Court and the High Court have
dealt with each and every argument raised by the appellants and the
impugned judgments do not suffer from any infirmity so as to call for
interference. The learned counsel has submitted that the appellant Manjit
Singh not only caused injuries on the person of Rajinder Pal Singh but, in fact,
instigated the accused party with exhortation prior to the assault and, in the
face of clear evidence on record, mere want of recovery of kirch used by the
appellant Manjit Singh would not exonerate him. The learned counsel has also
contended that when the accused persons, at least five of them, were armed
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with deadly weapons and assaulted the injured persons simultaneously, all the
necessary ingredients of formation of an unlawful assembly with common
object stand established. As regards the plea of alibi, the learned counsel has
submitted that this plea was never suggested to the prosecution witnesses nor
was taken in the statement under Section 313 CrPC; and the made up
witnesses produced in that regard have been duly considered and discarded
by the Trial Court and the High Court after thorough appreciation. The learned
counsel for the respondent has also relied upon a few decisions, including that
in Sahabuddin & Ors. v. State of Assam: (2012) 13 SCC 213.
8. Having heard learned counsel for the parties and having perused the
material placed on record, we are clearly of the view that both these appeals
remain bereft of substance and no case for interference at the instance of the
appellants is made out.
Acquittal of two of the accused persons
9. Before taking up other aspects of the matter for consideration, apposite
it would be to take note of one of the relevant factors that though in this case,
the accused Prem Kumar and Narain Datt were alleged to be empty handed
and were not assigned the role of causing any injury on any person but, the
Trial Court found it to be a case of common object and these two accused
persons were held guilty of the offence under Section 148 IPC as also of other
offences with the aid of Section 149 IPC. The High Court, though agreed with
the Trial Court after thorough examination of the material on record on all the
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material aspects but, as regards these two accused persons, in the concluding
part of its discussion, proceeded to extend them the benefit of doubt while
observing as under:-
“38. As regards Prem Kumar and Narain Datt, who were empty handed, they have been given the role of having caught hold of the deceased. If It can be held that they were members of the unlawful assembly, even if no overt-act is proved against them, they will be liable for the murder. However, we are of the view that in absence of tangible evidence, they ought to be given benefit of doubt.”
9.1. Though the aforesaid accused persons Prem Kumar and Narain Datt
were acquitted with benefit of doubt and their acquittal has not been
challenged but then, this fact, by itself, will not have any mitigating effect on
the prosecution case against the other five accused persons, including the
appellants. It remains trite that acquittal of co-accused per se is not sufficient
to result in acquittal of the other accused. Even if the material evidence against
all the accused persons is the same, acquittal of some of them does not lead
to a corollary that the other accused also need to be acquitted [vide Yanob
Sheikh alias Gagu v. State of West Bengal: (2013) 6 SCC 428 and Dalbir
Singh v. State of Haryana: (2008) 11 SCC 425]. If after taking the evidence
as a whole, the case in relation to the acquitted accused could be segregated
from that against the other, such other accused could nevertheless be
convicted. Noticeable it is that even as regards the said accused Prem Kumar
and Narain Datt, the High Court has not recorded a clean acquittal but has
only extended them the benefit of doubt, for no overt act of assault having
been assigned to them and they being not armed with any weapon. Even if the
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involvement of Prem Kumar and Narain Datt is considered doubtful in view of
the uncertain role assigned to them, it cannot be said that entire substratum of
the prosecution case is lost, or even whittled down.
Prosecution Case
10. We may now take note of salient features of the relevant evidence on
record.
10.1. The case of the prosecution on material accusations pivots around the
testimony of injured eye-witnesses PW-5 Rajinder Pal Singh and PW-6
Gurnam Singh. PW-5 Rajinder Pal Singh has deposed in conformity with the
initial version of Beant Singh on the basis whereof, the FIR in question came
to be registered. This witness has testified to the role of each of the accused in
the incident in question. Nothing material has come out in the cross-
examination to discredit this witness. Of course, a suggestion was made in the
cross-examination that he had gone to sub-jail Barnala on 30.09.2002 and
demanded Rs. 20,000/- from the accused persons to depose in their favour,
which he denied. A few witnesses were examined in defence evidence to
prove that this witness PW-5 did visit sub-jail Barnala. However, it is too
remote to accept that because of such a visit, the witness might have offered
false depositions by taking unlawful consideration. In fact, this very witness is
otherwise sought to be discredited by the appellants as an interested witness,
for being the brother of one of the accused persons in the said rape and
murder case, which was being pursued by the appellant Manjit Singh. This
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witness had also been one of the injured persons in the incident, having
received the blows from the appellant Manjit Singh. In the face of such a fact
situation, the suggestion by the defence, that this witness offered support to
them for unlawful consideration, could only be rejected as baseless. The Trial
Court and the High Court have concurrently found his testimony reliable; and
we find no reason to take any different view of the matter.
10.2. The narration of the incident by PW-6 Gurnam Singh has also been
consistent with the version occurring in the FIR as also that occurring in the
statement of PW-5 Rajinder Pal Singh. He had also been an injured person in
the same incident and there is nothing on record to disbelieve or discredit this
witness.
10.3. So far as the medico-legal aspect of the matter is concerned, PW-1 Dr.
Subhash Singla, who had examined the injured person immediately after the
incident, has proved the respective injury reports, inter alia, making out that
there were multiple injuries on the person of the deceased Dalip Singh
including three injuries from blunt weapon and one from sharp-edged weapon.
He also testified about Gurnam Singh having received one injury from a sharp-
edged weapon apart from other injuries; and about Rajinder Pal Singh having
sustained three injuries, two of them being from sharp-edged weapon. PW-7
Dr. Jasbir Singh conducted post-mortem on the dead body of Dalip Singh and
found haemotoma below the scalp; and on clearing haemotoma, found a
fracture. This witness testified that as per his examination, the cause of death
was haemorrhage and shock as a result of the head injury.
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10.4. The facts stand established that the deceased and the other members
of the complainant party received many and multiple injuries, including those
on the vital body parts from sharp-edged weapons (as also blunt objects). It is
also established that Dalip Singh died due to the grievous head injury. Though
he died after 9 days from the date of the incident but continuously remained
hospitalised and was never in a position to make any statement. The fact that
the injuries in question were inflicted by the accused party, with calculated and
determined assault on the complainant party, has also been duly established
on record. The concurrent findings of the Trial Court and the High Court
against the accused persons remain proper and do not appear suffering from
any infirmity.
Defence Version and Evidence
11. It would also be appropriate to take note of the features emanating
from the defence evidence. In all 13 witnesses were examined in defence.
Before taking up the relevant witnesses concerning the plea of alibi of the
appellant Manjit Singh, we may briefly refer to the other defence witnesses.
11.1. In defence, DW-1 Dr. Atul K. Singh and DW-12 Darshan Kumar were
examined in support of the assertion that the witness Rajender Singh visited
sub-jail Barnala as per the entries occurring in Mulakat register; and DW-7
Gurcharan Singh was examined in proof of the signatures of the witness
Rajender Pal Singh on the summons EX-D-11. As noticed, nothing turns upon
this part of defence evidence.
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11.2. There had been another defence witness DW-5 Lakhwinder Singh who
was, at the relevant time, posted as Superintendent of Police (D) Barnala.
According to this witness, a complaint was filed before him to the effect that
Manjit Singh, Prem Kumar and Narain Datt were not present on the spot
during the incident in question. This witness sent a report, Ex. DA, stating the
fact that in the investigation carried out by Surendra Pal Singh, SHO Police
Station Barnala, Manjit Singh, Prem Kumar and Narain Datt were found not
present at the time of occurrence. This testimony had not only been irrelevant
but had also been totally unwarranted. As noticed, initially, the investigating
agency attempted to exonerate the appellant Manjit Singh as also the said
accused Prem Kumar and Narain Datt but the Trial Court, by its order dated
19.09.2001, did exercise the power under Section 319 CrPC for proceeding
against these persons. The prosecution even endeavoured to withdraw the
case against the appellant Manjit Singh and the said Prem Kumar and Narain
Datt but the prayer was declined by the Trial Court by its order dated
09.11.2002; and the attempts to challenge this order of the Trial Court also
failed right upto this Court. In such a position, where the opinion stated in the
investigation result qua these persons stood overruled by the judicial order, it
had been absolutely unwarranted that such an overruled opinion was sought
to be relied upon by way of the testimony of DW-5. Even if this opinion and
whatever stated in the report sent by this witness [Ex. DA] are taken on their
face value, nothing whatsoever turns upon them.
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11.3. The testimony of three other witnesses [DW- 10, DW-11 and DW-13]
examined by the defence in relation to the plea of alibi of the accused Prem
Kumar and Narain Datt is not relevant for the present purpose.
Plea of alibi of the appellant Manjit Singh
12. The main plank of the contentions on behalf of the appellant Manjit
Singh is that he was not present at the scene of crime i.e., within Barnala
Court Complex on 03.03.2001 at 11.15 a.m.; and in fact, he was with the
witness DW-9 at village Dhaner on the relevant date at 11.30 a.m. The Trial
Court, after thorough appreciation of entire record has rejected this
suggestion. The High Court has also observed that there was no reliable
evidence on record to accept this plea of alibi. Having examined the record,
we are satisfied that the Trial Court and the High Court have rightly rejected
such a baseless plea after proper appreciation of the evidence on record.
12.1 There are two fundamental, and rather fatal, shortcomings in the plea
of alibi of the appellant Manjit Singh: First, that such a plea was not even put in
suggestion to the relevant prosecution witnesses including the injured eye-
witnesses PW-5 and PW-6. Secondly, and significantly, in his own statement
under Section 313 CrPC, the appellant Manjit Singh, even while making
elaborate assertions that he was falsely implicated for having stood against the
complainant party in relation to the said rape and murder case of the daughter
20
of Darshan Singh; and while also relying upon the earlier police report where
he was sought to be exonerated and earlier attempt on the part of the
prosecution to withdraw the case against him, not even remotely stated that he
was not present at the site and that, at the relevant point of time, he was
present somewhere else. The relevant part of the statement made by the
appellant Manjit Singh under Section 313 CrPC is reproduced as under: -
"Q.19. Anything else to say? Ans. I am innocent. An enquiry in this regard was conducted by the SHO/PS kotwali, Barnala and other high officers of the police and they all agreed that the present case has falsely been got registered against me and I was placed in Column No.2. The Addl. P.P. for the State had moved an application U/s 321 Cr.P.C. for withdrawal of the case against me as the said case has been falsely registered against me but Sh. S. S. Gupta, the learned Addl. Sessions Judge, Barnala, dismissed the same and against the said order the State has filed an appeal in the Hon’ble High Court which is still pending there and the proceedings have been stayed.
The complainant party is the biggest landlord party, of Mehal Kalan town, where a police station is also there. They had murdered a girl namely KK* after raping her. Said KK* was the daughter of Darshan Singh, who was a handicapped Teacher and was a poor person. I was the eye witness in the said case and was also cited as a defence witness by the complainant party but he did not depose according to them and had spoken the truth as such, the complainant party got annoyed against him. I and Prem kumar and Narain Dutt had been pursuing the case of said KK*, who was not having any heir and in that case some persons of the complainant party were sentenced to life imprisonment. The complainant party being the big landlords have got the present false case registered against us. There was not need to catch hold an old person aged about 80 years. As per the Doctor he would have fallen on receipt of one injury only being of old age and weak physique. There was no need of catching hold him by two persons. We have no friendship or enmity with the other accused. I am innocent and have been falsely implicated in
21
the present case, by the complainant party on the strength of much money and land. I am having separate residence than the other four accused and of separate occupation.”
12.2. In defence evidence, DW-2 Sukhwinder Singh was examined to testify
that DW-3 Jora Singh was posted as driver on the vehicle in which, the
undertrials were brought to the Barnala Court Complex. The witness DW-3
stated that on 03.03.2001, he was deputed as driver on the said vehicle; that
about 11 a.m., he heard commotion and reached the spot where 4/5 persons
were causing injuries to 4/5 persons; and that the accused Narain Datt, Prem
Kumar and Manjit Singh were known to him and they were not present on the
spot. DW-6 Amarjit Singh stated that he was also on duty in the Court
Complex Barnala; that there was a fight between the parties whereupon, he
separated the parties and collected the kripans; that the accused Manjit Singh,
Prem Kumar and Narain were known to him and these persons were not
present on the spot where the fight took place. DW-4 Gurcharan Singh
Dhaliwal, Advocate, claiming himself to be an eye-witness stated that 3/4
persons caused injuries to 3/4 persons; and that he had not seen the accused
Prem Kumar, Narain Datt and Manjit Singh causing injuries to the victims. DW-
8 J.N. Sharma, Advocate stated that a letter of appreciation on the role of the
Constable Amarjeet Singh was sent to the SSP Barnala from the Bar but he
did not verify the correctness of the incident.
12.3. As regards plea of alibi of the appellant Manjit Singh, the direct witness
examined in the matter had been DW-9 Kulwant Singh, said to be a member
22
of the Panchayat. This witness stated that on 03.03.2001, at 11.30 a.m., the
appellant Manjit Singh came to his house in village Dhaner along with a lady
member regarding the level of a street, and he had gone with them to the
spot. According to the witness, the appellant Manjit Singh was not perplexed
at that time. This witness expressed ignorance if on 03.03.2001, Manjit Singh
had appeared in a case pending in the Court of JMFC Barnala. This witness
did not make any application to the Panchayat or to the higher authority
regarding the alleged false implication of the appellant Manjit Singh. The
conduct of this witness DW-9 and most of the other witnesses examined in
defence in relation to the plea of alibi, to say the very least, had been queer
and too unnatural to inspire any confidence.
12.4 The witnesses DW-3 Jora Singh and DW-6 Amarjit Singh were admittedly
serving in police establishment as Head Constable and Constable
respectively. From their testimony, this much is apparent that an occurrence
indeed took place on the given date, at the given time, and at the specified
place i.e., the Court Complex Barnala. They allegedly intervened in the fight
between two factions. It sounds rather strange that despite being the eye-
witnesses to the incident and being the police personnel themselves, neither
they took care to report the matter to the police station immediately nor the IO
could take their statements and cite them as prosecution witnesses. The
conduct of DW-4 Gurcharan Singh Dhaliwal, Advocate had been equally
unnatural. If he was the eye-witness to the incident in the Court Complex,
there was no reason that being a law professional, he would not have reported
23
the matter or would not have been examined by the IO. Curiously, DW-4
attempted to suggest that 3/4 persons caused injuries to 3/4 persons while
DW-6 stated that 4/5 persons were causing injuries to 4/5 persons. This
discrepancy in the number of persons involved is not without significance. The
intention of DW-4 had clearly been to tone down the gravity of offence and to
avoid the figure of “5” so as to take the case away from Section 149 IPC. In
any case, mere suggestion in the negative by these persons that they did not
see the three accused persons Manjit Singh, Prem Kumar and Narain Datt on
the spot does not displace the cogent and trustworthy evidence adduced by
the prosecution. The Trial Court and High Court have rightly discarded these
witnesses as being wholly unreliable.
12.5. In the given set of facts and circumstances, where the plea of alibi was
not put in suggestion to the relevant prosecution witnesses; and, in his own
statement under Section 313 CrPC, the appellant Manjit Singh, did not state
that he was not present at the site at the relevant point of time and he was
present somewhere else, this plea could only be rejected as a crude
afterthought and nothing else. In the given circumstances, the witness DW-9,
Kulwant Singh could only be said to be a made-up witness, who was lately
introduced to somehow make out a case of the presence of the appellant
Manjit Singh at a different place at the relevant point of time. Such a witness
could not have been accepted for want of the basis of such a plea by way of
cross-examination of the prosecution witnesses as also by way of specific
assertion in the plea of the appellant Manjit Singh in his statement under
24
Section 313 CrPC. Apart that there is no supporting material in relation to the
assertion so made by this witness, it is also noteworthy that when the
appellant was keenly pursuing the said rape and murder case of the village girl
and the matter was fixed in the Court on 03.03.2001, there was every reason
for him to be present in the Court Complex where the hearing was to take
place. Viewed from any angle, the plea of alibi, as put forward by the appellant
Manjit Singh, remains hollow and could only be rejected.
Other contentions
13. The other contention on behalf of the appellant Manjit Singh that his
connectivity with the crime is not established for want of recovery of weapon of
offence has only been noted to be rejected. As noticed, the IO in the first place
did make recoveries on the disclosure statements of other four accused
persons. As regards the appellant Manjit Singh, the IO chose to proceed in the
direction that he was innocent and was falsely implicated. That seems to be
the fundamental reason for the IO not making any attempt for recovery of the
weapon of offence used by the appellant Manjit Singh. However, this omission
has no adverse bearing on the prosecution case, where involvement of the
appellant Manjit Singh rather as the leader of the assembly, who started the
assault with exhortation and then participated in the assault, stands
established beyond doubt.
13.1. Further, there is hardly any force in the suggestion that the appellant
Manjit Singh was falsely implicated for enmity. In the circumstances of this
25
case, if anything of so-called enmity is to be taken into consideration, the same
equally operates against the appellant and his companions, as admittedly, the
appellant was keenly pursuing the aforesaid case of rape and murder and the
complainant party was comprising of the persons related with the accused in
the said case. The factor of enmity would only lend support to the prosecution
case towards the object and motive of the assembly to attack, assault and
cause hurt to the members of the complainant party.
13.2. Likewise, the submission about want of independent witnesses in
support of prosecution case is also baseless. There is no rule that in every
criminal case, the testimony of an injured eye-witness needs corroboration
from the so-called independent witness(es). When the statement of injured
eye-witness is found trustworthy and reliable, the conviction on that basis
could always be recorded, of course, having regard to all the facts and
surrounding factors. In the present case, the reliable evidence of the injured
eye-witnesses cannot be discarded merely for the reason that no independent
witness was examined.
Unlawful assembly and rioting with deadly weapons
14. It has been vehemently argued on behalf of both the appellants that the
essential ingredients of Section 141 IPC for the formation of unlawful assembly
with the common object having not been established, the conviction of the
appellants with the aid of Section 149 IPC is not justified.
26
14.1. The relevant part of Section 141 IPC could be usefully extracted as
under:-
“141. Unlawful assembly.- An assembly of five or more persons to designated an “unlawful assembly”, if the common object of the persons composing that assembly is-
xxx xxx xxx
Third.- To commit any mischief or criminal trespass, or other offence; or
xxx xxx xxx
Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”
14.2. Section 149, rendering every member of unlawful assembly guilty of
offence committed in prosecution of common object reads as under:-
“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.”
14.3. We may also take note of the principles enunciated and explained by
this Court as regards the ingredients of an unlawful assembly and the
vicarious/constructive liability of every member of such an assembly. In the
case of Sikander Singh (supra), this Court observed as under:-
“15. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in
27
prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.
*** *** ***
17. A “common object” does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view and their number is five or more and that they act as an assembly to achieve that object. The “common object” of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.
18. In Masalti v. State of U.P.: AIR 1965 SC 202 a Constitution Bench of this Court had observed that: (AIR p. 211, para 17)
“17. … Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such
28
as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.”
14.4. In the case of Subal Ghoral (supra), this Court, after a survey of
leading cases, summed up the principles as follows:-
“52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses “First”, “Second”, “Third”, “Fourth” and “Fifth” of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable for the commission of that
29
offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly. 53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution.”
14.5. We need not expand on the other cited decisions because the basic
principles remain that the important ingredients of an unlawful assembly are
the number of persons forming it i.e., five; and their common object. Common
object of the persons composing that assembly could be formed on the spur of
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the moment and does not require prior deliberations. The course of conduct
adopted by the members of such assembly; their behaviour before, during,
and after the incident; and the arms carried by them are a few basic and
relevant factors to determine the common object.
14.6. The facts of the present case, as established by the prosecution, makes
it clear that on the relevant date i.e., 03.03.2001 and at the relevant time i.e.,
11.15 a.m., at least five of the accused persons, including the present
appellants were present at the Barnala Court Complex. The members of the
complainant party purportedly came to the very same Court Complex to attend
the hearing of the aforesaid rape and murder case of the village girl in which,
their kiths and relatives were the accused persons and the case was being
pursued by the appellant Manjit Singh. It is also established that when the
persons related with the complainant party were about to board their vehicle,
the accused persons attacked them with weapons. Significantly, the attack on
the complainant party was triggered with exhortation by the appellant Manjit
Singh to avenge the rape and murder of the village girl in the expressions “Aj
Eh Bach Ke Naa Jaan KK* Da Badla Lai Kay Rahenge”6. This clearly brings
out the motive for the attack as also the object of the assembly. Moreover, the
blows hurled by the accused persons on the members of the complainant
party had been of wide range, sufficient force and chosen aims. The appellant
Manjit Singh himself had given two blows to the witness PW-5 on either of his
hands. Labh Singh gave kirpan blow on the head of Beant Singh. The
6 That would translate nearly as: “Let them not escape today; KK* shall be avenged.”
31
appellant Sukhwinder Singh aimed the first blow on Dalip Singh but hit the
right hand of the victim. The appellant Sukhvinder Singh caused yet another
injury to PW-6 Gurnam Singh by the handle of his kirpan. These were apart
from the repeated blows by the accused Bakhtaur Singh on the head of the
deceased Dalip Singh with his ghop and then three blows to PW-6 Gurnam
Singh. That apart, Bakhtaur Singh also gave the blow of his kirpan on the left
leg of Gurnam Singh. It is beyond the pale of doubt that the accused persons
had acted in concert and the object had clearly been to ensure causalities
amongst the members of the complainant party. On the applicable principles,
we have no hesitation in concluding that the accused persons did constitute
an unlawful assembly; did indulge in rioting in the Court Complex with deadly
weapons; and did cause grievous bodily injuries to members of the
complainant party. The deceased Dalip Singh was attacked rather repeatedly
by the members of this unlawful assembly and he sustained grievous injury on
the head that proved fatal. The background aspects as also the conduct of the
accused persons at and during the incident leaves nothing to doubt that each
of the member of this assembly remains liable for the offence committed by
himself as also by every other member of the assembly.
15. Before concluding, we may point out that in the case of Govind Singh
(supra), as relied upon by the learned counsel for the appellant Sukhwinder
Singh, the incident occurred in the sudden quarrel and in spur of moment
where the appellant picked up chimney lamp and threw it on his daughter who
died because of burn injuries sustained in the incident. In the given fact
32
situation, this Court converted the conviction from Section 302 IPC to that
under Section 304 Part-II IPC and reduced the sentence of imprisonment to
the period already undergone. We are unable to find any applicability of this
decision to the facts of the present case.
Conclusion
16. Accordingly, and in view of the above, these appeals fail and are,
therefore, dismissed. The appellants shall surrender before the Court
concerned within a period of four weeks from today and shall serve out the
remaining part of their respective sentence(s).
...............................................J. (A.M. KHANWILKAR)
..............................................J. (DINESH MAHESHWARI)
New Delhi, Date: 3rd September, 2019.
33