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NON­REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1560 OF 2019

PREM SINGH                                 …APPELLANT(S)   

Versus

SUKHDEV SINGH & OTHERS        …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO(S). 1561 OF 2019

J U D G M E N T

Deepak Gupta, J.

These  appeals  by the  victim as  well  as  by the  State  are

directed against the judgment dated 24.07.2013 whereby the

High Court allowed the appeal of the accused and set aside the

judgment of the trial court whereby the respondents herein were

convicted for  various offences  punishable  under  Sections  148,

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302/149 of the Indian Penal Code (IPC for short) and Section 25

of the Arms Act, and sentenced to various terms including life

imprisonment.

2. We do not intend to give detailed facts of the case.  The gist

of the case is that on 25.05.2005, accused Jagir Singh had

caused  injuries to  Palwinder  Kaur,  who  is the  sister­in­law of

Prem Singh  (PW­1).  Prem Singh  (PW­1) had gone to the milk

chilling centre at Lopoke, because his father was contesting

election being contested there.   At about 3.15 PM, Prem Singh

(PW­1), along with Major Singh (PW­2) proceeded to Civil Hospital

at Lopoke to see his sister­in­law, Palwinder Kaur.  Satinder Pal

Singh (since deceased) was already there in the Hospital.

3. When these two witnesses reached the Hospital, they found

a Tata Sumo vehicle bearing registration no. PB­02­AL­5478 was

parked outside the Hospital.   Accused Sardul Singh alias Kalu

came out of the Tata Sumo with a knife in his hand.   Accused

Sawinder Singh raised a  lalkara  (exhortation) that Satinder Pal

Singh should be killed.  Thereafter, Sardul Singh inflicted a knife

blow on the person of Satinder Pal Singh which hit both sides of

his abdomen and chest.   Satinder Pal Singh tried to run away,

but  in the meanwhile accused Sukhdev Singh, Resham Singh,

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Sawinder Singh and Swaran Singh, who were armed with rifles

came out of the sumo vehicle and fired at Satinder Pal Singh,

which hit him on the forehead, right ear, eye and back of the

head.   Thereafter, he fell down.   Prem Singh (PW­1) and Major

Singh (PW­2) raised alarm.  All the accused ran away with their

respective weapons after jumping over the boundary wall of the

Hospital, leaving behind the Tata Sumo and one motorcycle.

4. The case of the appellant is that there was a land dispute

and Jagir  Singh wanted to  take possession of the  land of the

complainant and hence the appeal.  FIR was got lodged by Prem

Singh (PW­1), at the milk chilling centre at Lopoke, because

according to him the police was present there.   Thereafter, the

police came to the Hospital.  After investigation the accused were

charged with committing murder of the deceased and other

offences.   The trial  court convicted them.   The High Court, in

appeal  acquitted them mainly on the ground that  the medical

version was totally different from that of the eye­witnesses and,

therefore, reliance cannot be placed on the eye­witnesses.

5. We may now refer to the relevant portion of the statement of

Dr. Deepak Walia (PW­13), who found the following injuries on

the deceased:­

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1. A lacerated wound with inverted margins 1 cm x 0.8 cm present center of upper eye lid, right abrasion collar around it, phtisis (sic) of right eye ball present subconjunctival hemorrage on right side.

2. A lacerated wound with inverted margins 4 cm x 2.8 cm on right side of fore head 1 cm above the right 1/3rd  of right eye brow.  Clotted blood was present.

3. A lacerated  wound  3.8  x  2.1 cm present  on right temporo parietal region 2 cm above pinna of right ear.  Margin were everted, brain matter coming out.

4. A lacerated wound 4.2 cm x 1.8 cm on right parieto occipital region with everted margins.   Clotted blood was present at the site.  Brain matter coming out.

5. An incised penetrating wound 1.5 cm x 0.5 cm on left side of chest just below nipple in anterior axillary line, muscle deep.   No infiltration of blood and no clot was present in the wound.

6. An incised penetrating wound 1.5 x 0.5 cm on left side of abdomen in the left Lumber region.   It communicated with peritoneal cavity.  No infiltration of blood in the wound.

7. An incised penetrating wound 3 cm x 1 cm obliquely placed in right hyponchondric region, it  communicated with peritonial cavity.   No infiltration of below was present in the tissue.

He recovered a bullet from inside the brain and 12 pellets.

According to him, injury nos. 3 and 4 are the exit wounds,

corresponding to the entry wounds, which are injury nos. 1 and

2.  He also states that injury 1 to 4 were antemortem and was a

result of fire arm, whereas injury nos. 5 to 7 were post­mortem,

as a result of injuries caused by sharp pointed weapon.

6. The High Court held, and in our opinion rightly so, that the

version of the eye­witnesses that knife blows were given by

accused Sardul Singh is falsified by the testimony of the doctor,

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who  clearly states that the injuries caused  by  a sharp edged

weapon were post­mortem.   This is a major discrepancy in the

statement of eye­witnesses because both the eye­witnesses claim

that the knife blows were given first by Sardul Singh and,

thereafter when Satinder Pal Singh (deceased) tried to run away,

the other accused came out from the Tata Sumo with fire arms.

7. It has been contended on behalf of the appellant that the

FIR was lodged within two hours of the occurrence and all the

accused  were  named in the  FIR  and, therefore,  no chance of

cooking up a false story arises.  It is also urged that the doctor’s

statement is contradictory and according to learned counsel for

the appellants injuries bore entry wounds.   

8. A number of authorities were cited to show that ocular

evidence should be preferred to medical  evidence.   We are not

referring to those, since in our view each case has to be decided

in its own facts.

9. In the present case the medical evidence does not support

the prosecution and we also find that there are other reasons to

discredit the prosecution witnesses.  No attempt was made by

PW­1 or 2 to take Satinder Pal Singh (deceased) inside the

Hospital for treatment.  The first reaction of close relatives would

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be to try and save their relative rather than rush to the police

station.   This is especially so when the occurrence took place in

the Hospital compound itself.  The second doubtful feature is that

instead of going to the police station the witness went to the milk

chilling centre to lodge the report.   There is no reasonable

explanation given except that since the police were present at the

milk chilling centre when the elections took place, he went to the

milk chilling centre.   He himself admits that the elections were

over at 3.30 P.M. and the occurrence is of 4.30 P.M.  Why would

he expect that the police would still be present there at the milk

chilling centre even after one hour?

10. Another aspect is that though the licensed fire arms of the

accused were seized but they were not sent to a ballistic expert

and there  is  no  forensic evidence to show that  these were the

guns actually used during the occurrence.

11. As far as the recovery of the Tata Sumo vehicle is concerned,

it is not proved to be belonging to the accused.  It belongs to some

other person and the accused have not been linked to this.

12. According to the two eye­witnesses PW­1 and 2, all the four

fire arm shots hit the deceased on the head.   According to the

doctor there were only two entry wounds.   This also belies the

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statement of the so called eye­witnesses according to whom the

accused gave four fire arm injuries on the head of the deceased.

The doctor was a prosecution witness and the prosecution cannot

be heard to say that his statement should not be relied upon.

The prosecution did not pray that the doctor be declared a hostile

witness.  Therefore, we have to go by the statement of the medical

expert.

13. In  view of the  above  discussion,  we  find no  merit in the

aforesaid appeals and the same are dismissed.   Pending

application(s), if any, shall also stand dismissed.

…………………………….J. (Deepak Gupta)

……………………………..J. (Aniruddha Bose)

New Delhi October 17, 2019