Holding

All six accused are guilty of murder and related offences under Sections 302/149, 324/149, 449 IPC and Section 27 of the Arms Act, and the High Court's acquittals are set aside.

Summary

The case concerned a violent assault on 23 May 1985 in which six accused, armed with a double‑barrel gun, gandhalis, kirpans and gandasas, attacked two men (Harbhajan Singh and Baldev Singh) and injured a third witness (Suba Singh). The trial court convicted four of the accused and acquitted two; the Punjab and Haryana High Court set aside all convictions and acquitted everyone. On appeal, the Supreme Court examined whether the testimony of close relatives (PW‑2 and PW‑3) could be rejected, whether the non‑examination of other independent witnesses undermined the prosecution, whether the lack of intervention by the victims' relatives was relevant, and whether identification at dusk was possible. The Court held that the relatives' detailed, corroborated testimony was admissible, that the failure to examine other witnesses did not discredit their evidence, and that the accused’s armed assault negated any expectation of victim protection. It further rejected the High Court’s findings on FIR delay, darkness, and suspicion, and clarified that Section 149 IPC applied to all six accused, making them liable for murder, assault and related offences. Consequently, the Supreme Court set aside the acquittals, convicted all six under Sections 302/149, 324/149, 449 IPC and Section 27 of the Arms Act, and imposed life imprisonment and fines.

Issues considered

The admissibility and reliability of testimony given by close relatives of the deceased.
Whether the non‑examination of other independent eyewitnesses defeats the prosecution's case.
Whether the failure of the victims' relatives to intervene during the assault affects the accused's culpability.
Whether identification of the accused was possible despite the incident occurring at dusk.
Whether the alleged delay in lodging the FIR invalidates the prosecution.
The applicability of Section 149 IPC to all accused in an unlawful assembly.
The conviction of the accused under Sections 302, 324, 449 IPC and Section 27 of the Arms Act.

Legislation cited

Arms Act, 1959s. 27
Code of Criminal Procedure, 1973s. 154
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 149, s. 302, s. 324, s. 449

Subjects

murderunlawful assemblySection 149 IPCeyewitness testimonyrelative witnessFIR delayidentification at nightArms Act

Judgment

A HARDEY SINGH.
v. •
HARBHEJ SINGH AND ORS.

NOVEMBER 20, I996

B [M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.]

Criminal Law :

Criminal Trial-Witness-Closely related-Evidence of-Both
C witnesses gave minute details of weapons used by accused and manner of
assaulting deceased-Their evidence corroborated from fact that
bloodstained earth seized from site ofoccurrence contained human blood-
However, one oftwo gunshot injuries not explained by these two witnesses-
He/d: Evidence of close relatives not to be rejected merely on ground that
they happened to be relatives-However, evidence of such witnesses must
D be scrutinised very carefully. In the facts and circumstances of the case,
non-explanation of one of two gunshot injuries would neither dilute their
evidence nor their presence could be doubted.

Criminal Trial-Prosecution-Independent witness-Non-examination
of-However, two relatives ofdeceased examined-Held: non-examination
E of other independent witnesses who came to place of incident could not be
ground to discredit evidence of said two eye-witnesses.

Criminal Trial-Evidence-Appreciation of-Accused armed with
deadly weapons while victims and their relatives totally unarmed-Held:
F acquittal of accused on ground ofnon-intervention of relatives ofdeceased
including eye-witnesses during assault on victims to protect them was
unsustainable.

Criminal Trial-Identification-Visibility in night-Incident took place
at 7.30 p.m. in month of May-Witnesses emphatically asserted that there
G was enough light to identifY accused-Accused known to witnesses-Held:
High Court totally wrong in recording a finding that it was a blind murder
during dark night.

Criminal Trial-Evidence-Appreciation of-Sudden assault-Eye
H witness did not describe correct distance from where gun was fired-Held:
856
HARDEY SINGH v. HARBHEJ SINGH 857

Jn a sudden assault it was difficult for eye witness to describe distance A
• from where gun was fired-Such minor discrepancy immaterial. Criminal
Procedure Code, 1973; Section 154.

FIR-Lodging of-Within 3 hours of occurrence naming accused
with all details-Held: order of acquittal of accused recorded by High
Court on ground that case against accused was framed in village with B
connivance of police lvas based on nzere surmise.

Penal Code, 1860: Sections 3241149.

Injuries-Received by eye witness-During assault-Caused by
accused-Evidence of eye witness corroborated from evidence of doctor C
and other eye witnesses---Held: in the circumstances ofthe case, the accused,
who were members ofan unlawful assembly, caused injuries to witness and
committed offence under Ss.3241149.

Sections 149 and 302--Accused armed with deadly weapons-Came D
along with other accused and participated in murderous assault on victims-
Held: courts be/0 w erred in not holding both accused guilty with aid of
S 149 for substantive offence under S.302. ·

The respondents-accused were convicted and sentenced under
sections 449, 302/34 and 324/34 of the Indian Penal Code, I 860 by the E
Sessions Judge. However, in appeal, the High Court set aside the
judgment and order of conviction and acquitted them. Being aggrieved
the appellants, brother and son of the deceased, preferred the present
appeal,

According to the prosecution, P.W.2 was doing some construction F
work, On the fateful night at 7,30 p.m. in the month of May, when
P.W.2 was sitting in his house, the deceased and P.W.3 came into his
house with a view to help him in the construction work, At that time
the accused persons armed with deadly weapons-double barrel gun,
Gandhali, Kirpan and Gandasas-transpassed into the house of P.W.2 G
•• and a 'lalkara' was given to teach a lesson to him and others for
causing injuries to the accused (A-1). Immediately all these accused
persons started assaulting P,W.3 on his chest. In the meantime accused
(A-I) fired a shot from his gun hitting the deceased, H, which caused
a bleeding injury upon which he fell down. Accused (A-2) then
inflicted blows from the sharp side of the gandasa on the shoulder of H
858 SUPREME COURT REPORTS [ 1996] SUPP. 8 S.C.R.

A the deceased while he was lying on the ground, accused (A-3) gave a
< .
gandasa blow from its sharp side on his right thigh: Accused (A-6)
gave a gandasa blow on his right ankle. An alarm was raised
whereupon all the accused persons fled away with their weapons.

It is the further case of the prosecution that when the accused
B persons were running away they raised a lalkara to finish the deceased,
B. Apprehending danger to the life of B, P.W.2 went in the direction
where B had gone to inform him about the first incident and also to
caution him. At that point of time B was coming back after taking
fodder in the tractor trolley. When B reached in front of the house of
A-1, he was surrounded by the accused persons. B stopped the tractor
C and tried to escape from the backside of the trolley but in the meantime
accused (A-5) gave a kirpan blow chopping off his right arm. B fell
on the fodder lying in the trolley. A-1 raised an alarm whereupon
accused (A-3) climbed upon the trolley and chopped off his leg with
a gandasa whereas accused (A-4) gave two or three blows with a
gandasa on his left arm. Accused (A-6) also gave a gandasa blow
D from its sharp side on his chest. Due to murderous assault B fell
down in the trolley with bleeding injuries. The two deceased, B and
H, succumbed to their injuries while being carried to the hospital. A
post~mortem was held and a First Information Report (FIR) was
lodged within three hours of occurrence of the incident. During the
E course of investigation bloodstained earth was collected from the place
of occurrence.

The reasons for acquittal given by the High Court were as under:-

F (i) Delay in londging the FIR.

(ii) Non-examination of independent witnesses of facts.

(iii) If P.W.2 and P.W.3 were present at the time of incident it
G would be unbelievable that they ,would not have intervened to protect
the victims. •

(iv) When the assailants went to attack B, his relatives including
eye witnesses did not go with weapons to protect him; a situation
which according to the High Court "it is not so easily acceptable in
H real life".
HARDEY SINGH v. HARBHEJ SINGH 859

(v) The witnesses could not have identified the assailants since it A
was _a dark night hence it was a case of blind murders.

(vi) The deceased were men of desperate character and had many
enemies and the respondents (accused) were named as culprits
primarily on suspicion.
B
(vii) The case against the respondents (accused) was framed in
the village after enquiries by the police.

(viii) The case diary did not disclose the names of eye witnesses,
place of occurrence or the \Veapons.
c
(ix) Medical evidence did not support the ocular account since
injury found on the dead body of H remained wholly unexplained.

(x) The victim H must have been fired at from a very close
range and not from the distance of 25 ft. as shown in the site plan.
D
Allowing the appeal, this Court

HELD : l. l. The prosecution had examined two relatives of the
deceased (P.Ws 2 and 3 ). Merely because other independent witnesses
who came to the place of incident were not examined could not be a E
ground to discredit the evidence of these t\vo eye witnesses. The
evidence of close relatives who testified the facts relating to the
occurrence be not rejected merely on the ground that they happened
to be the relatives. However, the evidence of such witnesses must be
scrutinised very carefully. Both the witnesses (PWs 2 and 3) have
given minute details in regard to the weapons used by each of the F
accused and the manner in which they have assaulted the deceased
H. The evidence of both these witnesses was corroborated from the
fact that blood stained earth seized from the site of occurrence
contained human blood. In the facts and circumstances of the case
non-explanation of the gun shot injury by these two eye witnesses G
would neither dilute their evidence nor their presence could be
doubted. (866-GH, 867-A-C(

2. The respondents (accused) were armed with deadly weapons
as against this the victims and their relatives were totally unarmed
and in such a situation it was absurd to expect any intervention from H
860 SUPREME COURT REPORTS (1996] SUPP. 8 S.C.R.

A the relatives of the deceased and if they were to do so it would have
led to some more casualties. Hence, acquittal of the accused on ground
of non-intervention of the relatives of the deceased including the eye
witnesses during the assault on the victims to protect them is wholly
unsustainable. 1868-BCJ

B 4. The very fact the FIR was lodged within three hours of the
occurrence naming the accused with all details unmistakably proved
the involvement of the accused in the present crime. The acquittal
recorded by the High Court on the ground that the case against the
respondents (accused) was framed in the village with the connivance
of the police, is based on surmise. 1868-FGI
c
5. In a sudden assault it was difficult for an eye witness to describe
the correct distance from where the gun was fired. This minor
discrepancy would not justify to disbelieve the eye witnesses. (869-BJ

6. The eye witness had stated in his evidence that he had sustained
D injury on his person during the assault caused by the respondents
(accused). llis evidence was corroborated from the evidence of the
doctor and other eye witnesses. In the circumstances of the case, the
respondents (accused) who were members of an· unlawful assembly
caused injuries to the witness and committed an offence under Sections
E 324/149 of the Indian Penal Code, 1860. 1869-CD]

7. The accused Nos. 2 and 6 were armed with deadly weapons
and came along with other accused and participated in the murderous
assault on both the victims. The courts below had erred in not holding
both these accused guilty with the aid of Section 149 IPC for the
F substantive offences punishable under Section 302 IPC. (870-CJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
557 of 1988 Etc.

G From the Judgment and Order dated 28. I .88 of the Punjab and
Haryana High Court in Cr!. A. No. 553-DB of 1986.

Som Datta and R.L. Kohli, Prem Malhotra, R.C. Kohli, R.S. Sodhi,
P.C. Khullar, Ranbir Yadav and R.S. Suri for the appearing parties.
/

~

H The Judgment of the Court was delivered by : ·
HARDEY SINGH v. HARBHEJ SINGH [S.P. KURDUKAR, J.] 861

S.P. KURDUKAR, J. These two Criminal Appeals on obtaining A
Special Leave have been filed by the appellants challenging the legality
• and correctness of the judgment and order of acquittal dated January 28,
I 988 passed by the Punjab and Haryana High Court at Chandigarh.

(2) The prosecution had put in the challan before the Judge, Special
Court Firozepur on 14.8.1985 for trial of six accused-respondents herein B
on the following allegations:

Baldev Singh (since deceased) was the younger brother of Hardev
Singh (P.W.2) and Jaswant Singh (P.W.I). Harbhej Singh (A-1), Gurbhej
Singh (A-2), Amrik Singh (A-3) and Gurmej Singh (A-4), the respondents
herein, are the real brothers whereas Sohan Singh (A-5) and Mohan Singh C
(Ji.-6), the respondents herein, are the real brothers. The house of Harbhej
Singh (A-1) is situated adjoining the house of Hardev Singh (P.W.2).
Harbhej Singh (A-I) and Sohan Singh (A-5) are cousins. Suba Singh, the
appellant in Criminal Appeal No. 558 of 1988 is the son of Harbhajan
Singh (since deceased), whereas criminal Appeal No. 557 of 1988 is filed D
by Hardev Singh, the brother of Baldev Singh (since deceased).

(3) It is alleged by the prosecution that Hardev Singh (P. W.2) was
doing some construction work at his house. On 23rd May, 1985 at about
7.30 p.m. when he was sitting in his house· alongwith Jaswant Singh and
their father Chanan Singh, Harbhajan Singh (since deceased) and Suba E
Singh (P. W.3) came to his house with a view to help him in the construction
work. At that time all the accused persons armed with deadly weapons
reached the house of Hardev Singh (P.W.2). Harbhej Singh (A-1) was
armed with a.12 bore double barrel gun, Gurbhej Singh (A-2) with a
Gandhali, Sohan Singh (A-5) with a Kirpan, and Amrik Singh (A-3),
Gurmej Singh (A-4) and Mohan Singh (A-6) were carrying Gandasas F
with them. They trespassed into the house ofHardev Singh (P.W.2) and a
lalkara was given to teach a lesson to him and others for causing injuries
to Harbhej Singh (A-I). Immediately all these accused persons started
assaulting Suba Singh (P.W,3) on his chest. In the meantime Harbhej Singh
(A- I) fired a shot from his gun hitting on the right dorsal and the pitarm G
of Harbhajan Singh causing a bleeding injury upon which he fell down.
Amrik Singh (A-2) then inflicted blows from the sharp side of the gandasa
on his shoulder and right dorsal while he was lying on the ground, Gurmej
Singh (A-3) gave a gandasa blow from its sharp side on his right thigh;
Mohan Singh (A-6) did not lag behind and also gave a gandasa blow on
his right ankle. Harbhej Singh (A-1) fired one more shot from his gun but H
862 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A it did not hit anybody. A roula was raised whereupon all the accused persons
fled away with their weapons.

(4) Coming to the second part of the incident of the same transaction,
it is alleged by the prosecution that when the accused persons were running
away tl1ey raised a lalkara to finish Baldev Singh. Apprehending danger to
B the life ofBaldev Singh, Hardev Singh (P. W.2) and Jaswant Singh hurriedly
went in the direction where Baldev Singh had gone to take fodder, to
inform him about the first incident and also to caution him. At that point
of time Baldev Singh was coming back after taking fodder in the tractor
trolley. When he reached in front of the house of A-1, he was surrounded
by the accused persons. Baldev Singh stopped the tractor and tried to
C escape from the back side of the trolley but in the meantime Sohan Singh
(A-5) gave a kirpan blow chopping off his right arm. He fell on the barseen
fodder lying in the trolley. Harbhej Singh (A-1) raised an alarm whereupon
Amrik Singh (A-3) climbed upon the trolley and chopped off his leg with
a gandasa whereas Gurmej Singh (A-4) gave two three blows with a
gandasa on his left arm. Mohan Singh (A-6) also gave a gandasa blow
D from its sharp side on his chest. Due to murderous assault Baldev Singh
fell in the trolley with bleeding injuries.

(5) Hardev Singh (P. W.2) then contacted Rajinder Singh, the Sarpanch
and informed him about the assault on Harbhajan Singh, Baldev Singh
E and Suba Singh. The three injured persons were then taken to the hospital
in a trolley. The two injured persons, namely, Harbhajan Singh and Baldev
Singh while being carried to the hospital, succumbled to their injuries. On
reaching the hospital at Mamdot, the doctor on seeing the serious condition
of Suba Singh (P. W.3) advised that he be taken to the hospital at Ferozpur
for medical treatment. Hardev Singh (P. W.2) then went to the Police Station,
F Mamdot and lodged a report, Ex-PK at 10.50 p.m. on the basis of which
a formal FIR Ex-PK/I was recorded. The special report was sent to Illaqa
Magistrate at about 1.30 a.m. on 24.5.1985.

(6) SI Puran Singh then went to the hospital at Mamdot but for want
G of light he could hold the inquest on the dead bodies. He then went to
Ferozepur hospital but there he was told by the doctor that Suba Singh
(P. W.3) was unfit to make any statement. He then returned back to civil
hospital at Mamdot and held inquest viz. Ex.PC and PF respectively on
the dead bodies of Harbhajan Singh and Baldev Singh and sent them to
the Civil Hospital, Ferozepur for post-mortem examination vide his two
H ruqqas dated 23.5.85 exhibits PB and PF. He thereafter went to the house
HARDEY SINGH v. HARBHEJ SINGH [S.P. KURDUKAR, J.] 863

ofChanan Singh and during the investigation collected blood stained earth A
from the place of occurrence vide Ex.PL. A pair of shoes, Ex.P5/I-2 was
also taken into possession therefrom vide memo Ex.PM. Two empty
ca11idges recovered fro1n the spot \Vere taken into possession vide memo
Ex.PN. A rough site plan Ex.PY was then prepared. He then recorded the
statements of various persons.
8
(7) During the course of investigation on 28.5.1985, SI Puran Singh
arrested Amrik Singh (A-3), Gurbhej Singh (A-2), Gurmej Singh (A-4)
and Sohan Singh (A-5) who were produced by Sadha Singh, the Ex-
Sarpanch. The accused then made the disclosure statements under Section
27 of the Evidence Act which led to the recovery of certain incriminating
articles. Harbhej Singh (A-1) and Mohan Singh (A-6) were arrested on C
31.5.1985 and during the investigation they also made disclosure statements
which led to the recovery of a gun Ex.P.11 along with five cartridges
Ex.P.12 to 16; a licence Ex.P.JJ and a gandasa Ex.P.17. All these articles
were taken into possession vide Ex.PKK and PLL respectively. The seized
articles were then sent to Chemical Examiner, Serologist and Director, D
Chandigarh for examination and reports. After completing the investigation
all the six respondents herein were charge sheeted for offences punishable
under Sections 148, 302/149,449,324/149 IPC. A-1 was further charged
for an offence punishable under Section 27 of the Arms Act.

(8) The defence of the accused is that of total denial. According to E
them they have been falsely implicated due to enmity. They also denied to
have made any statement which led to the recovery of any incriminating
article. The accused pleaded that they are innocent and be acquitted. The
prosecution in support of its case examined as many as 13 witnesses of
whom two are witnesses of facts besides the formal witnesses. The defence F
also examined Dr.H.L Bhami, D.W. I. the Consulting Scientist Forensic
Science Laboratory, Chandigarh,

(9). The Learned Sessions Judge, Ferozepur, on appraisal of oral
and documentary evidence on record by his Judgment and order dated
20th September,1986 convicted Harbhej Singh (A-1), Amrik Singh (A- G
3), Gurmej Singh (A-4) and Sohan Singh (A-5) on three counts viz. (i)449
IPC; (ii) 302/34 IPC; and (iii) 324/34 IPC and sentenced each one of them
to undergo rigorous imprisonment for five years on first count; life
imprisonment and to pay a fine of Rs. I ,000 in default of payment of fine
to undergo further rigorous imprisonment for these months on second H
864 SUPREME COURT REPORTS [ 1996] SUPP. 8 S.C.R.

· A count for causing murders of Harbhajan Singh and Baldev Singh; and
rigorous imprisonment for one year for causing injuries to Suba Singh on
the third count. Harbhej Singh (A-1) was convicted under Section 27 of
the Arms Act and was sentenced to suffer rigorous imprisonment for one
year. All substantive sentences were directed to run concurrently. While
acquitting Gurbhej Singh (A-2) and Mohan Singh (A-6) learned Sessions
B Judge held that the role attributed to both of them was very minor inasmuch
as A-2 alleged to have caused a simple injury to Suba Singh (P. W.3) and
no overtact was attributed to him. As regards Mohan Singh (A-6), he
found that he alleged to have caused one injury on non-vital part of the
body of Harbhajan Singh and one simple injury to Baldev Singh. The
injuries caused by both these accused could have been caused to them by
C other co-accused. No motive was alleged against them and, therefore,
their false .implication cannot be ruled out.

(IO) The four convicted accused (A-1), (A-3), (A-4) and (A-5)
aggrieved by the judgment and order of conviction preferred a Criminal
D Appeal No. 553 DB/86 whereas the State of Punjab preferred a Criminal
Appeal No. 198-DBA/87 against the two acquitted accused (A-2) and (A-
6) to the High Court. Both the criminal appeals were heard together by the
Division Bench of the High Court and the learned Division Bench by its
judgment and order dated January 28, 1988 allowed Criminal Appeal
No.553 DB/86 filed by the four convicts and set aside the judgment and
E order of conviction and acquitted them all. The appeal filed by the State
of Punjab came to be dismissed confinning the order or acquittal. Appellant
Hardev Singh, the brother of Baldev Singh (since deceased) on obtaining
Special Leave has filed Criminal Appeal No.557 of 1988 whereas Criminal
Appeal No. 558 of I 988 is filed by Suba Singh, the son of Harbhajan
Singh (since deceased) in this Court. Since impugned judgment is common,
F both these criminal appeals are being disposed of by this judgment.

{I I) Mr. R.L. Kohli and Mr. Som Datta, the Learned Senior Counsel
appearing in support of these two Criminal appeals assailed the impugned
Judgment on various grounds. It was contended that the High Court had
G totally misread the direct evidence and other materials on record. The
reasoning of the High Court while acquitting the accused is based on
sunnises and conjectures and, therefore, it is unsustainable. It was urged
that the evidence on record clearly establishes that Harbhajan Singh was
....
assaulted in front of the house ofChanan Singh. This fact finds corroboration
from various circumstances. No sustainable reasons were given by the
H High Court while rejecting the evidence ofHardev Singh (P.W.2) and the
HARDEY SINGH v. HARBHEJ SINGH [S.P. KURDUKAR, J.] 865

injured witness Suba Singh (P.W.3). It was then contended that the incident A
in question occurred on 23.5.1985 at 7.30p.m. and the First Information
Report was lodged at the earliest opportunity at I 0.50 p.m. and copy
thereof reached lllaqa Magistrate at 1.30 a.m. on 24.5.1985. The High
Court was wholly wrong in holding that there was delay in lodging the
First Information Report. Both the eye witnesses were disbelieved on flimsy
ground that they were unable to explain the second fire arm injury on B
Harbhajan Singh. It was then submitted that the Learned Sessions Judge
was equally wrong in acquitting A-2 and A-6 which order was confirmed
by the High Court. There is unimpeachable material on record to prove
that they were members of an unlawful assembly having a common object
to lay murderous assault on the victims. The trial court as also the High
Cou1i had completely misread the scope and true meaning of Section 149 C
!PC. The High Court ought to have allowed the appeal filed by the State
of Punjab against the order of acquittal of A-2 and A-6 and they should
have been convicted for the offences for which they were charge-sheeted.
Learned Counsel, therefore, urged that the appeals be allowed and the
respondents accused be dealt with in accordance with law.
D
(12) It may be stated that the State of Punjab did not file any appeal
in this Court against the impugned order of acquittal passed by the High
Court.

(13) Mr. R.S. Sodhi, the Learned Counsel for the respondents E
(accused) supported the impugned judgment of acquittal. He urged that
the view taken by the High Court is a probable one and, therefore, no
interference is called for. Both the appeals are devoid of any merit and be
dismissed.

(14) We have given our careful thought to the contentions raised F
before us. With a view to determine as to whether the view taken by the
High Court is pr0bable one, we have carefully gone through the evidence
and other materials on record. We may briefly indicate the reasons for
acquittal given by the High Court as under:-

(i) Delay in lodging the FIR. G

(ii) Non examination of independent witnesses of facts.

(iii) If P.W.2 and P.W.3 were present at the time of incident it would
be unbelievable that they would not have intervened to protect the victims. H
866 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A (iv) When the assailants went to attack Baldev Singh, his relatives
including eye witnesses did not go with weapons to protect him; a situation
which according to the High Court "it is not so easily acceptable to real
.. .
life".

(v) The witnesses could not have identified the assailants since it
B was a dark night hence it was a case of blind murders.

(vi) The deceased were men of desperate character and had many
enemies and the respondents (accused) were named as culprits primarily
on suspicion.

C (vii) The case against the respondents (accused) was framed in the
village after enquiries by the police.

(viii) DOR entry 34 dated 23.5.1985 did not disclose the names of
eye witnesses, place of occurrence or the weapons.

D (ix) Medical evidence does not support the ocular account since injury
No.6 fou~d on the dead body of Harbhajan Singh remained wholly
unexplained.

(x) The victim (Harbhajan Singh) must have been fired at from a
E very close range and not from the distance of 25 ft. as shown in the site
plan.

( 15) After going through the ocular evidence and other materials on
record we are of the considered view that every finding· recorded by the
High Court is patently wrong and unsustainable. The High Court has
F completely misread the evidence on record.

(16) Coming to the finding as regards the non-examination of
independent eye witnesses who saw the incident in question we must hasten
to add that it is completely erroneous and unmerited. The prosecution has
G examined Hardev Singh (P.W.2) and an injured witness Suba Singh (P.W.3),
although some other villagers did come at the place of incident but in our
opinion merely because other independent witnesses were not examined
could not be a ground to discredit the evidence of these two eye witnesses.
This Court time and again has emphasised that the evidence ofclose relations
who testified the facts relating to the occurrence be not rejected merely on
H
HARDEY SINGH v. HARBHEJ SINGH (S.P. KURDUKAR, J.] 867

the ground that they happened to be the relatives. All that this Court has A
... ruled is that the evidence of such witnesses be scrutinised very carefully.
We have very carefully gone through the evidence ofHardev Singh (P. W.2)
and Suba Singh (P. W.3) who were consistent in their evidence as regards
the details ofassault caused by the respondents (accused). Both the witnesses
have given minute details in regard to the weapons used by each of the
accused and the manner in which they have assaulted Harbhajan Singh in 8
front of the house of Chanan Singh. They also stated that A-I fired from
his gun at Harbhajan Singh causing him bleeding injuries. They further
stated that the second shot fired by A-I missed the target. It is true that the
medical evidence does indicate two gun shot injuries. In the facts and
circumstances of the case non explanation of the gun shot injury No.6 by
these two eye witnesses would neither dilute their evidence nor their presence C
could be doubted. It is the positive case of both the witnesses that Harbhajan
•
Singh had come to the house of Chanan Singh to help him in the
construction work. There is nothing in their evidence which can persuade
us to disbelieve the story narrated as regards the assault on Harbhajan
Singh. Coming to the assault on Baldev Singh caused by the respondents
(accused), Hardev Singh (P.W.2) and Suba Singh (P.W.3) had stated that D
Baldev Singh, on noticing that the respondents (accused) were coming
towards him, left the driver's seat and went to the trolley to escape himself
from the probably attack by the accused. Harbhej Singh (A-1) gave a
lalkara and thereupon Amrik Singh (A-3) climbed up the trolley and
chopped off the leg of Baldev Singh with gandasa. Gurmej Singh (A-4) E
also climbed up the trolley and gave 2-3 blows on his left arm from the
sharp side of gandasa. Mohan Singh (A-5) also gave a gandasa blow from
the sharp side on his chest. After inflicting injuries to Baldev Singh the
accused fled away. Both these witnesses were searchingly cross-examined
by the defence but there is hardly any material brought on record to discredit
their evidence. The evidence of both these witnesses in our considered F
view unmistakably proves that the respondents (accused) who were the
members of the unlawful assembly having a common object to cause the
murders ofHarbhajan Singh and Baldev Singh did cause such bodily injuries
to them as a result thereof they met with homicidal deaths.
G
( 17) The evidence of both these witnesses find corroboration from
the fact that the blood stained earth seized from the first site of occurrence
contained the human blood. The trolley tractor was also stained with human
blood. In these circumstances we have no manner of doubt that the
respondents (accused) formed an unlawful assembly and its object was to
cause murderous assault on Harbhajan Singh and Baldev Singh. Both the H
868 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A witnesses have also testified that the respondents (accused) came together
with deadly weapons in their hands with the common object to cause such
assault.

( 18) Coming to the next ground of acquittal viz., non intervention
of the relatives of the deceased including the eye witnesses during the
B assault on the victims to protect them, in our opinion is wholly
unsustainable. Since the respondents (accused) were armed with .deadly
weapons as against this the victims and their relatives were totally unarmed
and in such a situation it was absurd to expect any intervention and if they
were to do so it would have led to some more casualties. We, therefore, do
not see any merit whatsoever in the reasoning given by the High Court in
C this behalf.

(19) The High Court was totally wrong in recording a finding that it
was a blind murder during the dark night. The incident took place at 7.30
p.m. on 23rd May, 1985 and the witnesses have emphatically asserted that
there was enough light to identify the accused. Moreover the respondents
D (accused) were know to the eye witnesses since their houses were adjacent
to the house ofChanan Singh. This finding, therefore, is totally imaginary
without any material on record.

(20) The next finding of the High Court that the deceased were
E desperate criminals having many enemies and the respondents (accused)
were roped in on mere suspicion is again unsustainable. Except the ipse
dixit of the respondents there is no material brought on record to support
this assertion. This finding of the High Court is based on no evidence and
thus illegal and cannot be sustained.

F (2 l) The further ground in support of acquittal recorded by the High
Court that the case against the respondents (accused) was framed i.n the
village with the connivance of the police, is based on mere surmise. The
very fact that the FIR was ·lodged within three hours of the occurrence
naming the accused with all details unmistakably proved the involvement
G of the accused in the present crime. Therefore, this ground is figment of
imagination on the part of the High Court. There was hardly any time to
concoct any false story against the respondents (accused).

(22) The High Court had again committed a grave error in relying
upon the DDR entry No.34 dated 23rd May, 1985 wherein the names of
H the eye witnesses, place of occurrence and the weapons of offence were
HARDEY SINGH v. HARBHEJ SINGH [S.P. KURDUKAR, J.] 869

.. not mentioned to corroborate the FIR and ocular evidence. A
(23) The finding of the High Court that A-I must have fired from a
close range and not from a distance of 25 ft. as deposed to by Hardev
Singh (P.W.2) and Suba Singh (P.W.3) is not correct. To sustain this
reasoning the High Court relied upon the evidence of Dr. Maan (P.W.l).
In a sudden assault of this nature it was difficult for an eye witness to B
describe the correct distance from where the gun was fired. This minor
discrepancy in our opinion would not justify to disbelieve the two eye
witnesses.

(24) Cominr, to the injuries inflicted on Suba Singh (P.W.3), who
had stated in his evidence that he had sustained the injuries on his person c
during the assault caused by the respondents (accused), it need be noticed
that he was treated at Ferozepur Hospital. His evidence finds corroboration
from the evidence of Dr. A.S. Mann (P. W. I), Medical Officer, Civil
Hospital, Ferozepur who testified to these injuries. It is true that the same
were superficial. The evidence of Suba Singh also finds corroboration
from the evidence ofHardev Singh (P.W.2). In view of this evidence we D
see no hesitation to conclude that the respondents who were members ·of
an unlawful assembly caused injuries to Suba Singh and committed an..
·offence punishable under sections 324/149 !PC.

(25) The defence has examined Dr. H.L. Rahmi (D.W.I) who claimes E
to be the Consulting Forensic Scientist New Delhi. We have gone through
the evidence and the same in our opinion is tailor made to suit the defence.
After going through the reports of the Chemical Examiner Ex. PNN and
the FSL Ex. PQQ produced by the prosecution and the evidence of Dr.
H.L. Bahmi (D. W. I) we are satisfied that the reports of the Chemical
Examiner and FSL are more credible and we accept the same and reject F
the evidence of Dr. H.L. Bahmi (D.W.I).

(26) It also needs to be mentioned that the learned trial judge in
paragraph 44 of his judgment has referred to various recoveries at the

--· instance of some of the respondents and in particular recovery of 12 bore G
gun (Ex.Pl I) from Harbhej Singh (A-1). The trial court accepted the
prosecution evidence in respect of these recoveries and held that these
various recoveries corroborated the evidence of two eye witnesses.
Surprisingly, the High Court had not touched this evidence at all which in
our opinion is a serious error on its part. We accept the evidence of various
recoveries made during the course of investigation, which in unmistakable H
870 SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.

A terms, corroborates the evidence of two eye witnesses. 1 •

(27) Coming to the acquittal of accused Nos.2 and 6 by the trial
court against which the State of Punjab had filed an appeal to the High
Comt and the same was dismissed-in our opinion the learned Sessions
Judge had completely misunderstood the scope of Section 149 !PC. The
B only reason given by the learned trial Judge was that there was no material
on the record to prove that they caused any serious injuries to the two
victims. It was further observed that no specific role was attributed to
these two accused. In our opinion this finding is against contrary to the
evidence on record in asmuch as both these accused were the members of
the unlawful assembly and did have the common object as it was implicit
c in their action i.e. they were armed with deadly weapons; came along with
other accused and participated in the murderous assault on both the victims.
The trial court and the High Court had erred in law in not holding both
these accused guilty with the aid of Section 149 !PC for the substantive
offences punishable under Section 302 !PC. The order of acquittal passed
D by the trial court and on appeal affirmed by the High Court thus cannot be
sustained for the reasons recorded hereinabove.

(28) In the result the Criminal Appeal No. 558 of 1988 is allowed.
The order of acquittal passed by the trial court and affirmed by the High
Court in respect of A-2 and A-6 is quashed and set aside. The order of
E acquittal passed by the High Court in respect of Harbhej Singh (A-1),
Amrik Singh (A-3), Gurmej Singh (A-4) and Sohan Singh (A-5) is also
quashed and set aside and all the respondents (A-I to A-6) are held guilty
for the offence punishable unC:er Sections 302/149 of the Indian Penal
Code for committing the murders of Harbhajan Singh and Baldev Singh
F and each one of them is sentenced to suffer imprisonment for life on two
counts and to pay a fine of Rs. 1,000 each in default further rigorous
imprisonment for three months. Respondents (A-I to A-6) are also
convicted under Section 449 of the Indian Penal Code and each one of
them is sentenced to suffer RI for five years. Respondents (A-I to A-6)
are also convicted under Sections 324/149 of the India! Penal Code for
G causing injuries to Suba Singh and each one is sentenced to suffer RI for "- -
one year. Harbhej Singh (A-1) is also convicted under Section 27 of the
Arms Act and sentenced to suffer RI for one year. The substantive sentences
of respondents (A-I to A-6) are directed to run concurrently. The
respondents (A-I to A-6) who are on bail shall surrender to their bail
H bonds forthwith to serve out the remainder of their sentences.
HARD EV SINGH v. HARBHEJ SINGH [S.P. KURDUKAR, J.] 871

(29) In view of our order passed in Criminal Appeal No.558 of 1988 A
no separate order is called for in Criminal Appeal No. 557 of 1988, which
stands disposed of.

V.S.S. Appeal allowed.