Puran Singh and Another vs State of J. and K.

Arun Kumar Goel, J.—This appeal is directed against the judgment passed by the First Additional Sessions Judge, Jammu on 31-7-1992 in

file No. 95/Sessions whereby the appellants alongwith one Bansi were found guilty of having committed different offences and were sentenced to

undergo imprisonment as detailed below :-

Puran Singh :

Under Section 302/ To undergo rigorous

34 RPC : imprisonment for

life and to pay a

fine of Rs. 2,000/-,

in case of default

to undergo rigorous

imprisonment for two

months.

Under Section 323 Six months simple

RPC: imprisonment.

Under Section 4/27 Five years rigorous

of the Arms Act: imprisonment and to

pay a fine of Rs.

1,000/-, in default

of payment of fine

to undergo rigorous

imprisonment for one

month.

Sagar Singh :

Under Section 302/ To undergo rigorous

34 IPC : imprisonment for

life and to pay a

fine of Rs. 2,000/-,

in case of default

of pay fine, to

undergo rigorous

imprisonment for

two months.

Brief facts giving rise to this case as per prosecution are that Kashmir Singh, decased was engaged in the business of distillation of illicit liquor

and Sagar Singh accused, Karam Kumar, PW and Hafiz Gujjar, PW were his other associates in this exercise. Puran Singh accused was attacked

by deceased Kashmir Singh and as a result of which one of his arms was amputated on account of which Puran Singh nourished a grudge against

the deceased. This incident had taken place on 29-5-1987 and F.I.R. Ext. PW-GS came to be registered where PW Kulwant Singh, brother of

the deceased and Rattan Singh besides other persons were named as accused. In order to take revenge on the deceased, appellant Puran Singh is

stated to have planted his brothers Sagar Singh with the deceased in order to know latter's whereabouts and movements. Thus, Sagar Singh

appellant joined the deceased in his activities of illicit distillation of liquor.

On 19-8-1988 when the deceased, Sagar Singh, Karan Kumar and Gujjar PWs were busy in illicit distillation at Roopnagar Khud, the deceased

left for Janipura and asked his other associates to continue the work. Besides this, he also intimated that he would come after sometime and collect

the liquor in the evening. After the deceased had left, as per prosecution case, Sagar Singh appellant also left the spot informing the rest of the two

persons, namely, Karan Kumar and Hafiz Gujjar that he had some work at home. Thus, he left the spot where liquor was illicitly being distilled.

From there he went to Koth Bhalwal to inform Puran Singh appellant where he was ready with his party.

After having come to know about the movements of the deceased, both the appellants accompanied by five other accused including Bansi, their

another brother arrived at Chinaur Khud in a taxi and laid an ambush by blocking the road with empty barrels in the evening.

Further case as revealed by the prosecution is that the decased came on a scooter accompanied by Kulwant Singh and Karam Kumar PWs.

Both the appellants as well as their other co-accused five more in number in furtherance of their common intention appeared with deadly weapons

viz. swords, stones, hockey, toka and Khokhri and attacked the deceased. Firstly stones were pelted by all these persons which hit all three

persons, who were there on the scooter. Thereafter one of the arms of the deceased was amputated. Evidence in this behalf will be referred to

hereinafter. Since initially F.I.R. u/s 307 R.P.C. was registered, but because Kashmir Singh succumbed to injuries in the hospital, as such after

completion of the investigation, appellants alongwith other accused were challaned in the Court below u/s 302, IPC etc. In this context, it may be

appropriately mentioned here that two of the accused, namely, Ashok Singh and Narinder Singh had absconded. However, on 28-7-1990, Ashok

Singh was produced in Court, whereas Narinder Singh remained an absconder. Ashok Singh after having brought before the Court was allowed to

exercise the right of cross-examination of the witnesses examined in his absence. Prosecution could only produce Karam Kumar for cross-

examination.

Trial Court after consideration of the material on record framed different charges against the appellants and other accused and after conclusion

of the trial, has acquitted Rachpal Singh, Darshan Lal and Ashok Singh and has convicted Puran Singh, Bansi Lal and Sagar Singh accused for

different offences as noted hereinabove. This appeal has been filed by two of the accused, namely, Puran Singh and Sagar Singh.

In this case motive as shown by the prosecution against the appellants is that previously an arm of Puran Singh appellant was smashed which led

to its amputation and in order to take revenge aforesaid plan was laid by him and in furtherance of their common intention the object whereof was

to do away with the deceased. Appellants and other accused are stated to have joined hands.

In this case so far enemity between Puran Singh appellant on one side and deceased, PW Kulwant Singh and Rattan Singh on the other is by

and large admitted by both these prosecution witnesses. As perprosecution case, Kulwant Singh brother of the deceased Rattan Singh and Karan

Kumar are the eye witnesses whose relationship with the deceased is also admitted by them. So far independent witnesses are concerned, namely,

Vijay Kumar, Mohammed Shafi and Hafiz Gujjar, they have not supported the prosecution case so as to advance it any further when they were

examined in Court and were ultimately declared hostile. When cross-examined, nothing could be extracted by the prosecution so as to bring home

the guilt against the appellants or any of the accused.

Similarly, when evidence of Karan Kumar is examined, it will be seen that it also does not advance the prosecution case, rather it demol-ishes

the same to a large extent.

Star witnesses in this case are Kulwant Singh and Rattan Singh, PWs. So far Kulwant Singh is concerned, he is admittedly the brother of the

deceased and as per prosecution he had witnessed the incident along with PWs. Rattan Singh and Karan Kumar. According to this witness, he

along with deceased came on the scooter of the deceased being driven by the latter to the main road. The details of weapons held by each one of

the accused have been given by him. Puran Singh is stated to have been in possession of Khokhari whereas Bansi and Sagar Singh were armed

with swords, Rachpal Singh was stated to be wielding a toka. whereas Darshan Lal had a hockey stick. This witness has stated that it was Sagar

Singh who had amputated the arm of the deceased with his sword. Because this witness was unarmed, he could do nothing except watching the

incident and having raised hue and cry when PWs. Rattan Singh and Vijay Kumar came to the spot. Deceased was removed to the hospital by

Wali and Hafiz PWs whereas the witness accompanied by Rattan Singh went to Police Post, Janipura for reporting the matter to the police. Spot

was visited by the police who took into possession the scooter and blood-stained earth. When the witness went to the hospital, in the meantime,

Kashmir Singh had breathed his last. In his cross-examination on behalf of the defence, he admitted that against him, Rattan Singh PW and the

deceased a case was instituted by Puran Singh.

PW Rattan Singh has stated that since he had some work with the deceased, he waited for him at Janipura Chowk. It was on the way that this

witness cried for help. When he went in that direction, he saw Puran Singh striking the deceased with Khokhari. whereas Bansi, Sagar Singh and

Rachpal Singh were striking with swords. Other persons, namely, Darshan Lal and Ashok Singh were striking the deceased with hockey, stick and

toka. All the assailants are stated to have left the spot while holding out that they have taken the revenge and the deceased may be taken to

hospital. This witness had seen one of the arms of the deceased having been amputated and was lying on the ground, whereas the scooter of the

deceased and the deceased were lying on the ground. After the arrival of this witness, PW Shafi, Wali and Hafiz Gujjar came to the spot besides

number of other persons. Deceased was taken to hospital, whereas Kulwant Singh went to Police Station, Kashmir Singh died after about two

hours. This witness admits that he is arrayed as an accused under 307 R.P.C. This case was initiated by Puran Singh. When confronted with his

statement u/s 161 Cr.P.C., this witness denied having made some portion of the statement. Yog Raj is another witness produced by the

prosecution. He is a witness of recoveries. Amongst other things, he has stated that the places of recoveries of Khokhari and hockey stick were

accessible to all and the hockey stick was recovered first whereas confessional statement was recorded later on.

Then the other material witness in this case is PW Karan Kumar, who has also stated that the deceased, Sagar Singh and Hafiz PW were all

partners in the business of illicit distillation of liquor and he was working as a labourer with the deceased. On the fateful day, witness along with

Kulwant Singh PW-1 and deceased were coming on a scooter from Chinaura. Deceased was driving the scooter. When the scooter had reached

near the office of Jammu Development Authority, road was blocked with empty barrels and stones. The movement of the scooter was slowed

down. Appellants and other accused persons started pelting stones on them. One of the stones hit the back of Kulwant Singh, whereas another

stone hit this witness in his chest and further another stone hit the deceased as a result of which he fell down. Immediately after the deceased had

fallen down on the ground, Puran Singh attacked him with Khokhari whereas his two other brothers attacked him with swords and Ashok Singh

attacked him with a hockey stick. According to this witness, it was Puran Singh who amputated the arm of the deceased with Khokhari and Bansi

accused hit the deceased on his head. PW Rattan Singh and Vijay Kumar had reached the spot when the accused persons fled away from the

spot. At such time, Puran Singh appellant is stated to have held out that the incident may be narrated to the family members of the deceased. In his

cross-examination, this witness has completely demolished the case of the prosecution. He states that all the three persons were coming in a three-

wheeler which was being driven by PW Kulwant Singh. At such time, a stone hit the pane of the three-wheeler. Other stone also hit the scooter

breaking the wind screen as a result of which Kulwant Singh PW received injuries and he became unconscious besides having lost the control of

his scooter which resulted in accident of the scooter as a consequence whereof arm of the deceased was amputated. This witness is the person

who had complained to the police about the incident. PW Kulwant Singh and deceased both according to this witness, were taken to hospital,

where Kulwant Singh remained unconscious till next day. Since it was dark no one could be recognised. He has further stated the liquor bottles

which were loaded in the scooter were broken and were taken into possession by the police through the seizure memo which was signed by him.

Empty barrels, auto rickshaw etc. were also seized by the police. This is one set of the eyewitnesses.

When a reference is made to the statements of the prosecution witnesses, it is clear that Kulwant Singh, Rattan Singh, deceased as well as

other persons have been arrayed as accused persons in the case wherein one of the arm of Puran Singh was amputated. Thus, it is clear that these

witnesses are interested witnesses and their statements in the facts and circusmtances of the case cannot be accepted on face value but have to be

scrutinised and examined so as to ensure that they inspire confidence and are worthy of credence.

In the context of the"" statements of PW Kulwant Singh and Karan Kumar, there are two versions one given by Kulwant Singh that all of them

were coming on a scooter which was being driven by the deceased. PW Karan Kumar has not supported the prosecution case inasmuch as that

he has categorically stated regarding all three of them coming in a three-wheeler which was being driven by PW Kulwant Singh. After the stone

had hit them, wind screen of the scooter was damaged resulting in the driver Kulwant Singh losing balance and accident taking place. Liquor has

also fallen down and bottles were broken. Not only this, but seizure memos of bottles, three-wheeler etc. having been prepared by the police and

the witness being a signatory to these memos. Thus, there is material contradiction regarding the manner all three i.e. 2 PWs and the deceased

were travelling.

Regarding the amputation of the arm of the deceased, PW-2 has stated that it was Sagar Singh who had amputated the arm of the deceased.

However, when a reference is made to the statement of PW Karan Kumar, he has stated that it was amputated by Puran Singh. Had both these

eye-witnesses been present, then on the material aspects of the case, there would not have been any contradiction in their statements. That is not

the case here.

PW Kulwant Singh has stated that Puran Singh was armed with Khokhari. Bansi and Sagar Singh were armed with swords, Rachpal Singh

was armed with a toka, Darshan Lal was armed with a hockey stick and all of them were hitting the deceased. However, PW Rattan Singh has

stated that saw Puran Singh striking the deceased with Khokhari. Bansi, Sagar Singh and Rachpal Singh striking the deceased with swords while

Darshan Lal attacked him with hockey stick and Ashok Singh with toka. This shows that there are material contradictions in the statements of

witnesses regarding the mode of attack and the weapons which were used by each one of the accused.

As per prosecution case, PW Kulwant Singh and PW Karan Kumar along with deceased were coming on the scooter which was being driven

by the deceased. Both Karan Kumar and Kulwant Singh had received stone injuries.

Dr. O.N. Gupta PW had examined Kulwant Singh as well as Karan Kumar. According to this witness, Karan Kumar did not receive any

injury during the occurrence.

The other set of eye-witnesses examined by the prosecution are Vijay Kumar, Mohammed Shafi, Wali and Hafiz Gujjar. When a reference is

made to their statements, it is clear that none of them supported the prosecution case. As such no benefit can be derived by the prosecution. Even

in cross-examination, as already observed, they do not advance the case as set up against the accused persons.

So far recoveries of the weapons are concerned, suffice it to say that they do not inspire confidence and in this behalf statement of PW Yogi

Raj clearly makes the case of the prosecution improbable. He has even gone to the extent of stating that hockey stick was recovered first and its

disclosure statement was made later on. In addition to this, places of recovery of Khokhari, hockey stick etc. were accessible to all. In view of

this, it cannot be said that disclosure statements Were made first and pursuant to that recoveries Were effected.

It may be relevant here to refer to judicial precedents as to what weight is to be attached to the witnesses who are firstly related and secondly

are inimical towards the accused persons. Simply that a witness is related to the deceased, his evidence cannot be discarded. Only safeguard

necessary in such circumstances is to examine the statement of such witness with care and caution.

In Smt. Rukma and others Vs. Jala and others, , Hon'ble Supreme Court took the view that on examination of evidence, High Court was

justified in acquitting the respondent because it was not possible to believe the eye-witnesses when they stated that they had not made certain

statements before the police. Another reason that weighed with the Hon'ble Apex Court while upholding the acquittal order was that the

prosecution witnesses had made improvements in their statements while appearing in Court.

In State of U.P. Vs. Bhagawan and others, , while upholding the acquittal ordered by the High Court, Supreme Court took the view that it was

established that the eye-witnesses had enmity, as such their testimony had to be judged with more circumspection and there were vital

discrepancies in the testimony of such eye-witnesses being in variance with the F.I.R., therefore, High Court steas justified in discarding the

evidence of such eye-witnesses.

Examining the prosecution evidence on the touch-stone of the decisions of the Hon'ble Apex Court supra, it is clear that the statements of

PWs. Kulwant Singh, Rattan Singh and Karan Kumar cannot be made the basis for upholding the judgment passed by the trial Court. They are not

only interested witnesses who are hostile to the accused, but they also do not corroborate each others' statements on material aspects of the

prosecution case and thus no reliance can be placed on their testimony.

Another important aspect of this case is that when the statements of the appellants along with other accused were recorded u/s 342, Cr.P.C.,

all the incriminating material was not put to them by the trial Court which is another material ground for setting aside the impugned judgment. In this

context, it may be appropriate to mention here that the recording of statement u/s 342, Cr.P.C. is not a mere formality. In fact, it is aimed at putting

all material that has to come on record and is going to be used against the accused persons in the course of judgment by the trial Court. A

reference to the statements of accused persons shows that questions put to them were general in nature without specifying the evidence pointedly.

The purpose of recording the statements u/s 342, Cr.P.C. to make the accused person understand in simple language the exact case he has to

meet and material point which the prosecution has been able to make against him. After this had been done, accused gets a chance to explain, if he

can do so. The question of giving explanation on the part of accused only arises when entire case is put to him. It may be appropriate to refer that

in the first question put to each one of the accused person is that on 19-8-1988, he accompanied by other persons near Jammu Development

Authority Barrier was armed with a particular weapon, second question is that he made the disclosure statement to the police and got the weapon

recovered. Next question is regarding the ownership of the weapon. Further questions are why the witnesses have deposed against the accused.

Three other questions are, namely, why the case against the accused, did he want to say anything else and did he want to lead any evidence. We

are of the considered view that this is not enough and it does not show that the materials which have been used against the appellants were put to

them. In this behalf, reference can be usefully made to the observations made in Hate Singh Bhagat Singh Vs. State of Madhya Bharat, which are

to the following effect (para 25):-

We have a further comment to make. Both the Sessions Judge and the High Court have attached importance to the fact that both accused

absconded, but at no stage of the case have they been asked to explain this. We have stressed before the importance of putting to the accused

each material fact which is intended to be used against him and of affording him a chance of explaining it if he can. We regret to find that this rule is

so often ignored.

To similar effect are the observations made in Machander Vs. State of Hyderabad, which are to the following effect (para 1) :-

This is another of those cases in which Courts are compelled to acquit because Magistrates and Sessions Judges fail to appreciate the importance

of Section 342, Criminal Procedure Code and fail to carry out the duty that is cast upon them of questioning the accused properly and fairly,

bringing home to his mind in clear and simple language the exact case he has to meet and each material point that is sought to be made against him,

and of affording him a chance to explain them if he can and so desires. Had the Sessions Judge done that in this case it is possible that we would

not have been obliged to acquit.

While following these two precedents in a recent decision, Hon'ble Apex Court in Nayudu Srihari Vs. State of A.P., , observed as under:-

After giving my thougtful consideration to the rival contentions, I am of the view that no doubt all can be entertained that the examination of the

accused u/s 313, Cr.P.C, is an important part of the trial. It can also not be described as a technical defect in recording the statement of the

accused under the said provision of law. It has its own significance and importance, having material bearing on the ultimate decision in the case.

The accused might be knowing what case against him was, but the object of Section 313, Code of Criminal Procedure, is to afford an opportunity

to the accused to explain each and every piece of evidence relied upon and adduced by the prosecution, and if each and every circumstance

appearing in the prosecution evidence against the accused is not put to him when he is examined u/s 313, Code of Criminal Procedure, the

accused is well within his right to plead that great prejudice was caused to him.

To be fair to the Govt. Advocate, it is necessary to refer to his submissions urged in opposition of the present appeal. According to the learned

Govt. Advocate, prosecution has been able to successfully bring home the guilt against the appellants and he placed reliance on the statements of

PWs. Kul want Singh, Rattan Singh and Karan Kumar. It was further submitted by Shri Sharma that no prejudice is caused to any lone of the

accused including the appellants for Inot putting the entire incriminating material to them u/s 342, Cr.P.C. as the questions put to them by and large

show that all of them were made aware of the prosecution in nutshell that they had to meet. These arguments prima facie appear to be very

attractive, but when examined in the light of the law applicable in that behalf and on the touch-stone of the judicial precedents, they have been

raised simply to be rejected.

As a result of the aforesaid discussion, it is clear that this appeal deserves to be allowed and it is ordered accordingly. Consequently conviction

and sentences imposed upon the appellants are hereby quashed and set aside and they are ordered to be set at liberty forthwith unless required in

any other case. Fine, if deposited, shall be refunded tithe appellants.