2022 (1) TMI 1432

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.... A.M., he, his father Pahalwan, uncle Darshan Singh, Cousin brother Ajab Singh were irrigating the field of Ajab Singh. At that time, the Appellants as well as Surajbhan and Dilip came to their field. They were armed with guns, lathi and other weapons and surrounded his Father, Uncle and Cousin brother and started abusing them. Kedar Singh and Ramhet said that they (accused persons) would irrigate their fields first and in case if they (complainant party) do not agree for that, then they (complainant party) would be killed. His father replied, that some portion of his field is left for irrigation and let it be completed. Then Bharat Singh by using abusive language started insisting that he will irrigate his land. His uncle also tried to persuade Bharat Singh that he may wait for some time. Kedar Singh, Ramhet and Surajbhan were having mouser guns, whereas Bharat was having Farsa, Devaram, Dilip and Rampreet were having lathis. Kedar fired a gunshot causing injury on the head of his father. Ramhet also caused gunshot injury to his Uncle Darshan Singh. Surajbhan also fired gunshot causing injury on the head of his father. Dilip Singh, Rampreet, Devaram started assaulting Ajab Singh b....

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....n, since, all material witnesses were examined, therefore, the prosecution closed its right on 27-2-2020. 7. The Appellant did not examine any witness in his defence. 8. The Trial Court by the impugned judgment convicted and sentenced the Appellant for the offences mentioned above. 9. Challenging the judgment passed by the Court below, it is submitted by the Counsel for the Appellant Kedar Singh that Bhanupratap Singh (P.W.1) and Ajab Singh (P.W.2) are unreliable witnesses. The ocular evidence is not supported by medical evidence. The presence of rigor mortis indicates, that the deaths had already taken place much prior to the alleged time of incident. In fact some unknown persons might have killed the deceased Pahalwan and Darshan Singh in the wee hours, but on account of previous enmity, the Appellants have been falsely implicated. Multiple fired cartridges were found on the spot, whereas according to prosecution witnesses, only four gunshots were fired. In the FIR it is alleged by Bhanupratap Singh that Kedar had left his white shirt on the spot, and he has brought the same, but in his evidence, he clearly stated that after leaving the place of incident, he did not retu....

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....pectively, have also stated that the Appellant was also not there, therefore, they are unreliable witness. However, the Trial Court rejected the arguments by holding that initially, Bhanupratap Singh (P.W.1) and Ajab Singh (P.W.2) were examined in the presence of the Appellant, therefore, their evidence, which was led in respect of Dilip Singh, cannot be read in favor of the Appellant. 17. The findings recorded by the Trial Court are perfectly correct in the light of the judgment passed by the Supreme Court in the case of Karan Singh Vs. State of M.P. reported in AIR 1965 SC 1037 and A.T. Mydeen and anr. Vs. The Assistant Commissioner, Customs Department vide order dated 29/10/2021 passed in Criminal Appeal No.1306/2021. 18. The Supreme Court in the case of A.T. Mydeen (Supra) has held as under : 39. The provisions of law and the essence of case-laws, as discussed above, give a clear impression that in the matter of a criminal trial against any accused, the distinctiveness of evidence is paramount in light of accused's right to fair trial, which encompasses two important facets along with others i.e., firstly, the recording of evidence in the presence of accused or h....

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....d and attempted to murder Ramchandra. In the High Court reliance had been placed on behalf of the Appellant on the judgment of this Court in Pritam Singh v. State of Punjab, (S) AIR 1956 SC 415. That case referred with approval to the judgment of the Judicial Committee in Sambasivan v. Public Prosecutor, Federation of Malaya, 1950 AC 458 at p. 479, where it was observed that "the effect of a verdict of acquittal... is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication." As the High Court pointed out, that observation has no application to the present case as here the acquittal of Ramhans was not in any proceeding to which the Appellant was a party. Clearly, the decision in each case has to turn on the evidence led in it; Ramhans's case depended on the evidence led there while the Appellant's case had to be decided only on the evidence led in it. The evidence led in Ramhans' case and the decision there arrived at on that evidence would be wholly irrelevant in considering the m....

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.... prevent this being done. The principle of Sambasivam's case, 1950 AC 458 has no application here because the two cases we are concerned with are against two different persons though for the commission of the same offence. Furthermore, as we have already said, each case has to be decided on the evidence led in it and this irrespective of any view of the same act that might have been taken on different evidence led in another case. 20. Thus, the evidence which was led in the Trial of co-accused Dilip cannot be read in favor of the Appellant Surajbhan. Further, on 6-12-2018 and 16-4-2018, Bhanupratap Singh (P.W.1) and Ajab Singh (P.W.2) respectively, were being examined for co-accused Dilip only and not for the Appellant Surajbhan. Therefore, the Appellant Surajbhan would not get benefit of any word uttered by Bhanupratap Singh (P.W.1) and Ajab Singh (P.W.2) in their examination on 6-12- 2018 and 16-4-2018 respectively. 21. However, it is surprising, that although the Appellant Surajbhan Singh was being tried for offence under Section 302/149 of IPC for committing murder of Pahalwan and Darshan Singh, but the Trial Court, without giving any finding in respect of murder of D....

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....taining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d)in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal. ....