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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: TEK SINGH AND OTHERS

DATE OF JUDGMENT:       03/05/1999

BENCH: G.B.Pattanaik, M.B.Shap

JUDGMENT:

Shah,J.

     In  the Court of Addl.  Sessions Judge-III, Hissar  in Sessions  Case No.  57 of 1988/33 of 1990, 8 persons namely, (1)  Tek  Singh, (2) Gurbachan Singh, (3) Gurmel Singh,  (4) Mela  Singh,  (5) Baldev Singh, (6) Megha Singh,  (7)  Sajan Singh  and  (8) Jaspal Singh were charged for  the  offences punishable  under Section 148, 449 and 302 read with Section 149  of  I.P.C.  for committing the murder of Tek Singh  and Gurdev  Singh inside the house of Tek Singh (deceased).   By judgment  and  Order  dated   26th  March  1991,  Additional Sessions Judge, Hissar convicted all the aforesaid 8 accused under  Sections  148,  449 & 302 read with  Section  149  of I.P.C.   Against  the  said  judgement  and  order,  accused preferred  Criminal  Appeal No.  153- DB of 1991 before  the High  Court  of  Punjab and Haryana at Chandigarh.   By  the judgment  and order dated 23rd October, 1992, the High Court acquitted   5   accused,  namely,   Tek   Singh(A-1),   Mela Singh(A-4),  Gurmel  Singh(A-3),  Sajan  Singh(A-7),  Jaspal Singh(A-  8)  and  confirmed the conviction of  remaining  3 accused, namely, Gurbachan Singh(A-2), Baldev Singh(A-5) and Megha  Singh(A-6)  for the offence punishable under  Section 302  read with Section 34, I.P.C.  and their conviction  and sentence  under  Section  449 I.P.C.  was  also  maintained. Against  the  said judgment and order, the State of  Haryana has  preferred this appeal.  At the time of admission of the appeal,  this  Court  dismissed the Special  Leave  Petition against  the  convicted  accused,  namely,  Gurbachan  Singh (A-2),  Baldev  Singh  (A-5)  and Megha  Singh  (A-6).   The prosecution  version  is  because  of  the  Gram   Panchayat elections  of  Village  Talwara and  as  some  understanding between the accused Tek Singh (A-1) and Gurdev Singh was not honoured  by  Tek Singh, there was altercation  between  Tek Singh  and Chet Singh, brother of the deceased Gurdev Singh. It  is  also  stated that about 8 to 9 months prior  to  the occurrence,  Tek Singh (deceased) was convicted for  causing injuries to Mrs.  Mukhtiar Kaur, his sister-in- law.  He was released on parole one day prior to the occurrence.  On 14th September,  1988  at about 8.30 p.m., Tek Singh  and  Gurdev Singh  (both  deceased)  were sitting on a cot  outside  the house of Tek Singh, the accused armed with weapons including gun,  rifle and gandasa, firing shots and shouting that  Tek Singh  and  Gurdev Singh should be finished,  arrived  there from  the side of Tek Singhs house.  On seeing the accused, both  deceased  rushed  inside the house of Tek  Singh,  the

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accused  chased them and entered the house where Mrs.   Bant Kaur,  wife of Tek Singh (deceased) was present.  It is also say  of witnesses Chet Singh, P.W.5, Bhola Singh P.W.  7 and one Mohinder Singh that they reached at the scene of offence after  returning from their fields and answering the call of the nature.  It is the version of the witnesses that accused caused  injuries  to  deceased Tek Singh by  giving  Gandasa blows.   It is stated that Baldev Singh gave Gandasa blow on the  neck,  Mela  Singh  gave  gandasa  blow  on  the  right shoulder, Jaspal Singh gave gandasa blow on right arm, Megha Singh  gave  gandasa blow on right knee, Gurmel  Singh  gave gandasa  blow  on left hip joint, Sajan Singh gave  four  to five  gandasa  blows  in quick succession on waist.   It  is further  stated  that Gurbachan Singh (A-2) fired  from  his rifle  hitting deseased Gurdev Singh on his right thigh  and other  accused persons gave gandasa blows.  Thereafter,  all the  accused along with the respective weapons went  towards their  houses and at that time Tek Singh (A-1) and Gurbachan Singh  fired  from  their  gun and rifle in  the  air  while leaving  the spot.  The witnesses Chet Singh and Bhola Singh rushed to the police station and lodged report at 11.30 p.m. with  SI  Ramesh  Pal.  The special report of  the  FIR  was conveyed  to Illaqa Magistrate, Hissar at 4.50 a.m.   during the  same night.  The accused continued absconding till 22nd September, 1988 on which date at the bus station, Tek Singh, Gurbachan  Singh, Mela Singh and Gurmel Singh were arrested. At  that  time, Tek Singh was carrying his licence .12  bore gun  Ex.  P34 which was taken in possession after putting it in  a  sealed parcel.  Thereafter, other fire arm  was  also recovered.   Gandasas from Gurmel Singh (A-3) and Mela Singh (A-  4)  also were recovered and were sent to  the  Forensic Science  Laboratory,  Madhuban  and its report  stated  that human  blood  was found on one of Gandasas.  With regard  to the  fire arms, rifle and gun, they were found intact and in working  order  and  also after examining the  hole  in  the Tehmad  (lion cloth) put on by deceased Gurdev Singh, it was reported  that  it  was  the result  of  bullet  projectile. Before  the  Sessions Court in their  respective  statements under  Section 313 of Cr.  P.C., the accused contended  that they  were falsely implicated, it has also been pointed  out that Ram Nath, brother of Sajjan Singh, accused had suffered injuries  and  for  that purpose, report was lodged  by  Ram Nath.   Jaspal Singh, (A-8) had taken the plea of alibi  and for that purpose, witnesses have examined to prove that bhog ceremony  in  connection with the last rites of Bhura  Singh took place on 14.9.88 and Jaspal Singh being the son- in-law of  Amarjeet Singh, brother of the Bhura Singh attended that ceremony  and  he along with his wife stayed for  the  night with them.  The learned Additional Sessions Judge relying on the  eyewitnesses  evidence of Chet Singh, Mrs.  Bant  Kaur and  Bhola  Singh,  coupled with the  medical  evidence  and circumstantial  evidence  convicted  and sentenced  all  the accused.  In appeal, the High Court reappreciated the entire evidence  in  the  light of the contentions  raised  by  the learned  Counsel for the parties.  The High Court, in appeal arrived  at  the conclusion that prosecution has  failed  to prove  motive  of  Tek Singh or his brothers  Baldev  Singh, Megha  Singh or his nephew Mela Singh, Jaspal Singh  joining the  remaining other accused in assaulting the deceased  Tek Singh  and Gurdev Singh.  The Court observed that it  cannot be  stated  that  the  presence of witness  Chet  Singh  who happens  to  be the real brother of Gurdev Singh  (deceased) and  Bhola  Singh  P.W.  7 who is the son  of  the  deceased Gurdev  Singh  cannot be said to be unnatural or  that  they cannot  be  termed  as chance witnesses.   However,  their

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evidence  is  to be appreciated with care and  due  caution. The  High  Court,  however,   stated  that  considering  the measurement  of the room where the dead body of Gurdev Singh lay,   it  was  not  possible  to  believe  that  it   could accommodate  accused persons to enter with their weapons and kill  Gurdev Singh inside the house.  The Court further took note  of  the  fact  that ocular  evidence  of  the  witness required  to  be  appreciated  with   due  caution  qua  the participation  of each of them in the occurrence  especially when  Investigating  Officer reported, under Section 173  of the Criminal Procedure Code, that Baldev Singh, Megha Singh, Sajan   Singh   and  Jaspal   Singh  were  found   innocent. Thereafter,  High Court considered the medical evidence  and appreciated the evidence of each witness to find out whether the  medical  evidence  corroborates   the  version  of  the prosecution   witnesses.   The  Court   held  that  qua  the respondents,  that  is,  A-1, A-2, A-3, A-7 &  A-8,  medical evidence  does  not  corroborate  the evidence  of  the  eye witnesses.   Qua the remaining accused A-2 Gurbachan  Singh, A-5  Baldev  Singh  and A-6 Megha  Singh,  medical  evidence corroborated   prosecution  evidence.    Hence,  they   were convicted  and rest of them were acquitted.  In this appeal, Ms.    Shikha   Ray   Pabbi,   learned   Counsel   for   the appellant-State  vehemently contended that the reasons given by  the High Court in reversing the finding of conviction of the  respondents- accused are, on the face of it, erroneous. She  submitted that the entire approach of the High Court in appreciating  the  evidence of the eye-witnesses and  giving benefit   of   doubt   on    insignificant   omissions    or contradictions  or on the ground that it is not corroborated by the medical evidence is, on the face of it, erroneous and has  resulted  in grave miscarriage of justice.  As  against this, learned Counsel for the respondents submitted that the High  Court has rightly appreciated the evidence and arrived at  the conclusion that role assigned to the respondents and their  participation  in  crime  by the  witnesses  was  not established  in  view of medical evidence.  It is  submitted that  there  is material improvement in the version  of  the prosecution  witnesses at the time of trial in order to make their  testimony in line with the medical evidence.  It  is, therefore,  submitted  that  this  is not  a  fit  case  for interference by this Court in this Appeal under Article 136. In  our  view,  considering   the  evidence  of  prosecution witnesses and the reasons recorded by the Trial Court, it is apparent  that  the  entire approach of the  High  Court  in appreciating the evidence of the eye-witnesses is erroneous. Further,   the   Court  ought  not   to  have   taken   into consideration  the report of the Investigating Officer under Section  173 of the Cr.  P.  C.  wherein it was stated  that Baldev Singh, Megha Singh, Sajan Singh and Jaspal Singh were innocent  while  appreciating  the evidence led  before  the Court.  However, it has to be stated that after appreciating the  evidence  of eye-witnesses, the High Court  itself  has confirmed  the  conviction of Baldev Singh (A-5)  and  Megha Singh  (A-6)  who were found innocent by  the  Investigating Officer.   Their conviction is also confirmed at the time of granting  leave to appeal.  This reveals non-application  of mind  by the High Court to the facts of the case.   Further, the Court while appreciating the evidence ought to have kept in  mind  and  visualised  the  situation  at  the  time  of occurrence  of the incident.  Evidence of the witness should be  appreciated by keeping ground reality and fact-situation in  mind.  It is also established law that even with  regard to  the  interested witness, it is the duty of the Court  to separate  truth from falsehood and the chaff from the grain.

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In view of the close relationship, witnesses naturally would have  a  tendency  to  exaggerate or  add  facts  but  while appreciating  the  evidence  exaggerated  facts  are  to  be ignored  unless it affects substratum of prosecution  story. In  the case of State of U.P.  Vs.  M.K.  Anthony AIR (1985) S.C.  48, this Court pointed out that while appreciating the evidence of a witness, the approach must be whether evidence of  the  witness read as a whole appears to have a  ring  of truth.   Once  that impression is found, it  is  undoubtedly necessary  for  the  Court to scrutnise  the  evidence  more particularly keeping in view the deficiencies, drawbacks and infirmities  pointed  out  in the evidence as  a  whole  and evaluate  them to find out whether it is against the general tenor  of the evidence and whether the earlier evaluation of the  evidence is shaken as to render it unworthy of  belief. Minor discrepancies of trivial matters not touching the core of  the case, hyper-technical approach in persuasion of  the evidence should be avoided.  The Court pertinently observed: Even  honest  and  truthful witnesses may  differ  in  some details  unrelated  to  the main incident because  power  of observation,   retention   and   reproduction  differ   with individuals.  Cross examination is an unequal duel between a rustic  and  refined  lawyer.  In  the  present  case,  the evidence of P.W.6, Bant Kaur, wife of the deceased Tek Singh is accepted by the High Court.  Her presence at the scene of offence  was natural particularly considering the fact  that deceased  was released on parole a day prior to the date  of incident.   She  has narrated the entire incident.  She  has stated  that  her  husband  Tek Singh  was  convicted  in  a criminal  case for causing injuries to Mrs.  Mukhtiar  Kaur. At  8.30 p.m., she was present in the courtyard and that all the  accused  came from the side of Tek Singhs house  while firing and raising lalkaras.  Tek Singh (A-1) was armed with the  gun,  Gurbachan Singh (A-2) was armed with rifle  while remaining accused were armed with gandasas.  On seeing them, Tek  Singh and Gurdev Singh who were sitting out on the  cot came  inside  the  room;  all the accused also  entered  the house;   Baldev  Singh gave gandasa blow on the back of  the neck  of Tek Singh as a result of which he fell down on  the ground;   while he was lying, Mela Singh inflicted  injuries with  gandasa  on  his right side face.  Jaspal  Singh  gave gandasa  blow  on  his  right shoulder.   Megha  Singh  gave gandasa  blow  on his right knee, Mela Singh gave a  gandasa blow  on  his  left buttock, Sajan Singh gave four  to  five injuries  with gandasa on his abdomen.  Bachan Singh fired a shot  from his rifle at Gurdev Singh which hit on his  right thigh  as a result of which he fell down on the ground.  She has further stated that other accused assaulted Gurdev Singh with  gandasa.  With regard to Mrs.  Mukhtiar Kaur, she  has stated  that  either she was her Jethani or Devrani and  she was  the wife of Gurbachan Singh (A-2).  She has also stated that  when  she  tried to intervene, she was pushed  by  the accused.  Mohinder Singh is a son of maternal uncle but they were  not  on visiting terms with him.  The  witnesses  Chet Singh   P.W.   5  and  Bhola   Singh,  P.W.   7  have  fully corroborated  her  evidence  and narrated  the  incident  in detail.   As stated by the witness Chet Singh, p.w.5 in  his cross- examination that assault was over within two to three minutes,  it  would  be difficult for any witness  to  state exactly  which  accused  inflicted  how many  blows  on  the deceased.   In these set of circumstances, if there is  some exaggeration   in  the  evidence  of  the  witnesses   those exaggerations   are   to  be   separated  by   taking   into consideration overall facts on record.  Further, it is to be stated  that with regard to the main part of the prosecution

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version  that  accused assaulted deceased Gurdev Singh,  the prosecution  evidence  is  fully   corroborated  by  medical evidence.  The medical evidence also corroborates the say of the  witnesses that on both the deceased, apart from  injury by  firearm,  accused  assaulted  by  gandasa.   Dr.    R.K. Chaudhary,  P.W.   1  and  Dr.  H.L.  Gupta,  P.W.   2,  who carried   on  post-morterm  examination   of  Gurdev   Singh (deceased),  found that he was having as many as 13 injuries out  of  which  6 injuries were incise wounds.   There  were multiple  contusions  and  lacerated  wounds  on  the  body. Similarly,  with regard to Tek Singh (deceased), there  were in  all  9  injuries,  3 were incise wounds  and  rest  were multiple  contusions  and lacerated wounds.   Therefore,  it cannot  be  stated  that  the evidence  of  the  prosecution witnesses  is  not corroborated by medical evidence.  It  is true  that  they  have failed to locate exact  seat  of  the injuries  but that is natural, when the incident takes place all  of a sudden within two to three minutes and  successive blows are inflicted by the accused, 8 in numbers.  They came all  of a sudden armed with the deadly weapons and  attacked the  victims,  who rushed to take the shelter in the  house. In  such  a  fact situation, some contradictions as  to  who assaulted whom, with what weapon and whether it was by sharp edge  or  blunt  side of Gandasa are bound to be  there  and particularly  when  blows are given in quick succession,  it would  be against the ground reality to expect the witnesses to depose exactly on which part of the body blow landed.  In these circumstances, even if there is some exaggeration with regard  to  the inflictions of blows, it would hardly  be  a ground  for rejecting their testimony.  It may be futile  to expect  an exact description of the details of attack on the victims  by  each  accused  from the widow  of  one  of  the deceased   who   witnessed  the   dastardly  act   or   from eye-witnesses.   Accused  were  known to the widow  and  the witnesses.   Their names are disclosed immediately.   Hence, presence  of  the  accused  at  the  scene  of  offence  was established.   They  all were armed with deadly weapons  and came  together.   In such a situation, when the presence  of the   accused  who  were  armed   with  deadly  weapons   is established beyond doubt, Sections 148 and 149 I.P.C.  would come  into  operation  and  they would  be  liable  for  the offences.   In this view of the matter, there was no warrant at  all  for the High Court to reverse the judgment  of  the Sessions  Court which is analytical and well reasoned.  High Court has also not given due importance to the fact that FIR was  lodged  immediately disclosing the entire incident  and the  names of the accused.  The incident took place at about 8.30  p.m.   on 14th September, 1988.  FIR was  recorded  at 11.30  p.m.   and  its  copy  was  received  by  the  Illaqa Magistrate, Hissar at 4.30 a.m.  on the same night.  The FIR was   lodged  by  Chet  Singh   and  Bhola  Singh  also  had accompanied Chet Singh at the Police Station.  So Additional Sessions  Judge  rightly came to the conclusion that  within two  and  a  half hours of the occurrence,  information  was lodged  with the Police and that copy of the FIR was sent at Hissar  which  is  90 Km.  from Jakhal by a  special  report which  reached  to  the Magistrate at Hissar  at  4.50  a.m. during  the  same  night  and in  these  circumstances,  the evidence of the prosecution witnesses get corroboration from the  FIR.   The  High Court also held that  prosecution  has failed  to prove motive.  In our view, this finding is  also erroneous.  Admittedly, deceased Tek Singh was convicted for causing  injury  to Mrs.  Mukhtiar Kaur, wife  of  Gurbachan Singh  (A-2).  He was released on parole and on next day, he was  assaulted  and murdered.  Further, it is a say of  Chet

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Singh  and P.W.6 Bant Kaur that Chet Singh wanted to contest election  for  the  post  of Sarpanch of  the  village.   He withdrew  his  candidature and Tek Singh (A-1) was  elected. It  is  the  say  of  the witnesses  that  he  withdrew  his candidature  as  there was compromise and it was  understood between him and accused that his wife would be co-opted as a female  member of the Panchayat.  This understanding was not honoured  by  Tek  Singh and on that account,  there  was  a dispute.   In the cross-examination, he has stated that even though  Gurbachan  Singh and Gurmel Singh, on the one  hand, and  the other accused persons, namely, Tek Singh and others are  totally from different families, they formed one  group and  were  close  to  each other.  There was  no  reason  to disbelieve  this  part  of the evidence.   Further,  in  his Section  313 statement, the accused Tek Singh stated that he was  falsely  involved  due to enmity between  him  and  the complainant  side;   he contested the election  of  Sarpanch against  Chet  Singh  and he was elected;   Chet  Singh  put pressure  upon  him to co-opt his wife as the member of  the Panchayat  which  he  refused to oblige  therefore  he  bore grudge  in  his mind.  It is the say of Gurbachan  Singh  in Section  313 statement that deceased Tek Singh had inflicted injuries  to Mrs.  Mukhtiar for which he was prosecuted  and convicted.   He  had also dispute with him for 22 Quilla  of land   in  Village  Chandpur   belonging  to  his   maternal grandfather  and the deceased Tek Singh was asking for share in that land, due to that reason, Tek Singhs family members were  having  grudge  against him.  Therefore,  he  and  his brother  were  falsely involved in the case by Bant Kaur  in consultation with Chet Singth.  Similar statement is made by accused  Gurmail  Singh.  In view of the aforesaid  evidence and  statements of the accused it would be difficult to hold that there was no motive on the part of the accused.

     Hence,  the  appeal  is allowed,  judgment  and  order passed  by the High Court acquitting the respondents for the offences  for  which  they were charged is quashed  and  set aside.  The Judgment and Order dated 26.3.1991 passed by the Sessions  Court in Sessions Case No.  57 of 1988/33 of  1990 convicting  the respondents and sentencing them is restored. Bail  bonds of respondents are cancelled.  They are directed to surrender to serve out the remaining part of the sentence awarded to them.