TMI Blog2000 (4) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the murder, but had been released on bail. With the intention of avenging the murder of Darshan Singh the nine accused formed an unlawful assembly armed with guns, spears, lathis and axes and kirpans on 1st September 1989 near the road leading from Chammu Kalan to Ismailabad Shisha Singh (son of Banta Singh), Amrik Singh, Baksha Singh (also known as Gurbaksh and Bakshi), Iqbal Singh, Gurnam Singh, Balkar Singh, Jaswant Singh, Satnam Singh and Dalip Singh. Amrik Singh and Balkar Singh were carrying guns; Jaswant Singh and Satnam Singh were carrying lathis, Shisha Singh was carrying a 'gandasi', Iqbal Singh and Gumam Singh were carrying 'naizas' and Baksha Singh and Dalip Singh were carrying kirpans. That morning Jagjit Singh (appellant in the third appeal) and Bidhi Shankar were driving two motor-cycles with Kulwant Singh riding pillion on Jagjit's motor cycle and Raj Rani, Bidhi Shankar's mother, riding pillion on the motor-cycle of her son, Bidhi Shankar along that road. They were going to get medical treatment for Kulwant Singh and Raj Rani. They were waylaid on the road at 11.00 A.M. by the nine accused persons. Jaswant Singh (appellant in the first a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R8). A site plan was prepared. The next day, a post-mortem was conducted on the body of Kulwant Singh by Dr. P.K. Goel and Dr. K.K. Chawla. They submitted a report (Ex. PC) to the effect that death was due to hemorrhage and shock because of multiple injuries which were ante mortem and suffieiecnt to cause death in the ordinary course of nature. The injuries found were listed as follows : (1) There was an incised wound 15 cm x 3 cm on the right side of face, transversely placed starting from just near right ear going towards chin, bone deep. Muscles and sub-cotaneous tissues were infiltrated with blood. Clotted blood was present in the wound. (2) There was an incised wound in the neck cutting through and through except a flap of skin posteriorly by which head was connected with trunk. All the muscles vessels, trachea vertebral column had been cut open at the level of C3-4 vertebra. The wound was starting 6 cm behind the right ear lobule and 1 cm below it; going across below it. The front of neck to left side ending at the leve of left ear lobule four cm below it. Near the left end of the wound muscles are partially cut. Muscle and subcutaneous tissues were infiltrated with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deep over the left side of mid line of sternum over 5th intercortal space. 8. An incised elptical (sic) wound 3 cm x 1.8 cm over the left side of lower part of chest over 9th intercortal space. On exploration wound was going deep into lung and injuring lower part of lung. 9. An horizontal bruise 3 cm x 1 cm darkish reddish hi colour near the enterior area of lower part of injury No. 8. 10. An incised wound on the right side and front of chest in the 5th intercostal space in the mamerry line. It was elptical (sic) shape with both ends narrow and was about 2 cm 0.75 cm. On exploring it was extending upto lung and there was blood in the cavity. 11. An irregular bruise 1.5 x 0.3 cm on the right side of upper part of chest. It was darkish, in colour. 12. Another irregular bruise darkish, reddish in colour over the upper part of the sternum. 1.5 cm xl cm. 13. A small oval lacerated wounds sub-cotaneous deep 0.5 cm x 0.5 cm in size over the abdominal wall on right lateral side above 3 cm below the rib margins. Margins were black and irregular. No track or pellet were found. 14. Little finger of the right head was amputated at the base margins were clean cut. Ring fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for comparison with the hair found clutched in Kulwant Singh's hand. The Magistrate's order recorded Amrik's refusal (Ex. PW1). The weapons recovered were sealed in the presence of one Chetan Dev. These together with the various items collected from the site, were sent to the Forensic Science Laboratory for analysis. The Laboratory reports (Ex. PZ, Ex. PZI) stated, inter alia, that the blood found on the naizas and kirpans was human blood and the empty cartridges had been fired from the recovered guns. (Ex. PN). After completion of the investigation the police submitted the charge sheet and the case was committed to the Court of sessions for trial. The charges as recorded by the Trial Court were that : (i) All the accused were charged under Section 148 IPC that they were members of unlawful assembly, in prosecution of their common object to commit murders of Kulwant Singh and Bidhi Shankar and attempted to commit murder of Jagjit Singh Marwah. (ii) Balkar Singh was charged with firing a gun shot at Jagjit Singh with intent and knowledge that his death could be caused under Section 307 IPC. The rest of the accused were charged for the various liabilities u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for making an attempt to commit the murder of Jagjit Singh Marwah. The defence of Shisha Singh, Baksha Singh and Amrik Singh was self defence. According to them, Amrik Singh was dragged into the house by Kulwant Singh and Bidhi Shankar and that Shisha Singh and Baksha Singh in their attempt to rescue Amrik Singh caused the injuries to Kuldip Singh and Bidhi Shankar. All the other accused claimed that they were falsely implicated and were not there at all. Thirteen witnesses were examined by the prosecution, namely, Gurdeep Kaur (PW 1), Jagjit Singh (PW 2), Dr. P.K. Goel (PW 3), Raj Rani (PW 4), Dr. Susheel Sighal (PW 5), (who examined Jagjit Singh, Shisha Singh, Amrik Singh and Baksha Singh) Chetan Dev (PW 6), ASI Sube Singh (PW 7), Satish Kumar (Police Photographer) (before whom the disclosure statements of the accused and by whom recoveries of the weapons were made, (PW 8), Dr. D.S. Saini, (PW 9), ASI Rajmal (PW 10), Mukesh Kumar (PW 11) who drew the site plan) Raghbir Singh (PW 12 who recorded the FIR) and SI Surinder Singh (PW 13). The defence produced six witnesses (a) Subhash Chopra (DW 1) in support of Iqbal' s defence that Iqbal had deposited his gun with hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal by way of Special Leave before this court against the acquittals. The Special Leave Petitions against Mohinder Singh, Balkar Singh, Dalip Singh and Satnam Singh were dismissed but granted as far as Iqbal Singh and Gurnam Singh were concerned. Since all the appeals are being disposed of simultaneously keeping in view the fact that the third appeal is one against acquittal, it would be appropriate to deal with that appeal first before assessing the evidence. The principle to be followed by Appellate Courts considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reaons for doing so. If the order is clearly unreasonable it is a compelling reason for interference (See : Shivaji Sahabrao Bobade v. State of Maharashtra, [1973] 2 SCC 793). The principle was elucidated in Ramesh Babulal Doshi v. State of Gujarat, [1996] 9 SCC 225 : While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpaly wrong, manifestly erroneous or demonstrably unsustainble. If the appellate court answers the above question in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the person who instigates or aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design, is itself tantamount to actual participation in the criminal act . The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. The' emphasis is on physical presence, and promotion or facilitation of the crime. As far as section 149 IPC is concerned in addition to the common object, merely being a member of an unlawful assembly within the meaning of Section 141 IPC may be sufficient. As held in Lalji v. State of U.P., [1989] 1 SCC 437. Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that all the accused excepting Balkar Singh who stood guard outside, entered the room after the door was broken and that after the accused left, she found Bidhi Shankar and Kulwant Singh were both dead with multiple injuries on their bodies. The High Court also accepted the evidence of Gurdeep Kaur (PW 1) in no uncertain terms when it said : if Gurdeep Kaur (PW 1) in whose house the occurrence had taken place was cross-examined at length but nothing material could be extracted from her testimony which could shatter her credibility or would throw any doubt about her presence at the place. Again at another place it was reiterated : She did not deviate from the prosecution version despite a searching cross-examination. She with-stood the test of cross-examination. Now Gurdeep Kaur had testified : I had seen from the adjoining room that Bakshish Singh and Iqbal Singh accused grappled with Kulwant Singh and attempted to throw him on the ground but he was resisting their that attempt. Amrik Singh started loading his gun to fire at Kulwant Singh but Iqbal Singh intervened and stopped Amrik Singh from loading the gun and added that Kulwant Singh would be killed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were proved as far as all the accused were concerned, when it said : It can well be interred that the accused on coming to know that Jagjit Singh and Bidhi Shankar had started on their motorcycles towards Ismailabad, premeditated and collected near the house of Darshan Singh and in order to take revenge of the murder of Darshan Singh brother of Shisha Singh, accused all of them in prosecution of the common object which was to kill Kulwant Singh and Bidhi Shankar did commit the murder of both of them. This should have been sufficient to hold all the accused guilty under Sections 34 and 149. And yet the High Court acquitted Gurnam Singh and Iqbal Singh on the ground that : Their participation in the commission of the crime does not stand proved. According to Gurdeep Kaur (PW-1), Iqbal Singh and Gurnam Singh accused were armed with Neza. However, the Doctors, who performed autopsy on the dead bodies of Kulwant Singh and Bidhi Shankar did not find any injury caused by Neza. Therefore, their participation in the crime is not free from doubt. Consequently, the conviction of Iqbal Singh and Gurnam Singh accused is set aside. In other words what the High Court did was look ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thek foregathering on the road with deadly weapons but also by thek subsequent conduct commencing with the lathi blow to Jagjit Singh by Jaswant Singh and the gandasi blow to Bidhi Shankar by Shisa Singh and followed by the concerted chase of the victims and forcible entry into the house where the victims had taken shelter and finally leaving the site after the murder, together. Prior concert and arrangement can, and indeed often must, be determined from subsequent conduct, as for example, by a systematic plan unfolding itself during the course of the action which could only be referrable to prior consent and pre arrangement, or a running away in a body or a meeting together subsequently. [See : Pandurang v. State of Hyderabad, ATR (1955) SC 216.] That the murders took place in the room where the bodies' were found has not been disputed. The blood stained floor, the photographs and the site plan which were proved substantiate this. Evidence of the broken door corroborates the forcible entry. The accused Gurnam Singh, Iqbal Singh and Jaswant Singh say that they were falsely implicated, but they led no evidence either oral or documen-tary to show that they were elsewhe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s they fled to take shelter. This would be sufficient to hold him guilty under Sections 149 and Section 34 IPC. In addition his actual participation in the killing was seen and testified to by Gurdeep Kaur. Gurdeep Kaur's evidence was that Jaswant Singh facilitated the killing of Kulwant Singh not only by beating him but also by helping the other accused to overpower him. It is true that in cross examination Gurdeep Kaur said I do not know who of the accused had caused injuries to whom of the deceased as I had seen all the accused causing injuries to the deceased but this does not detract from evidence of participation of Jaswant Singh in the murder of the deceased. The effect of this seeming contradiction is considered in greater detail in connection with Shisha Singh, Baksha Singh and Amrik Singh. The medical evidence of bruises is consist-ent with the finding of lathi blows and has been so stated by the doctors who conducted the post-mortems. As far as Shisha Singh, Baksha Singh and Amrik Singh are concerned, they admitted they were there but pleaded self defence. The accused claimed that both the Trial Court and the High Court had erred in relying on the evidence of Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licted or of the persons who had caused the injuries. As already noted Gurdeep Kaur's testimony in this regard was believed by both Courts. Both the trial Court as .well as the High Court were of the view that although Gurdeep Kaur had not given to the Police particulars of who had caused which injury she had not deviated from the actual occurrence and the manner in which it had happened. This Court has also held that an incident where a number of persons assaulted three persons at one and the same time with different weapons, some contradictions as to who assaulted whom and with what weapon were not unlikely, and such contradictions could not be made a ground to reject the evidence of eyewitnesses, if it was otherwise reliable. See : Satbir v. Surat Singh, [1997] 4 SCC 192. Both the Courts below have also come to the conclusion as a matter of fact that the omissions were not contradictions in the particular context. There is no reason for us to interfere with this concurrent finding of fact. In any event, the viciousness and extent of the injuries inflicted on the victims compared with the injuries suffered by Shisha Singh, Baksha Singh and Amrik Singh belies the plea o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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