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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: TEJINDER SINGH & ANR.

DATE OF JUDGMENT21/08/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) NANAVATI G.T. (J)

CITATION:  1995 AIR 2466            1995 SCC  Supl.  (3) 515  1995 SCALE  (4)840

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 481 OF 1985 Tejinder Singh V. The State of Punjab                       J U D G M E N T M.K. MUKHERJEE. J.      Tajinder Singh  and Darshan Singh (hereinafter referred to as  A-1 and  A-2 respectively)  were tried  by the Judge, Special Court,  Ferozepore for  the murder  of Jasbir Singh. The trial  ended in  the conviction of A-1 under Section 302 of the  Indian Penal  Code (‘IPC’ for short) with a sentence of imprisonment for life and the acquittal of A-2. Aggrieved by his  conviction and  sentence A-1  has filed one of these two appeals (Criminal Appeal No.481 of 1985) while the other one (Criminal  Appeal No.533  of 1985) has been filed by the State of  Punjab  against  the  acquittal  of  A-2  and  for enhancement of  sentence imposed  upon A-1. Both the appeals have been  heard together  and this judgment will dispose of them. Shorn of details the prosecution case is as under:      A-1 and  Jagjit Singh  (PW 4),  father of the deceased, own and  possess adjoining  plots of  cultivable lands. Four days prior  to the incident in question, an altercation took place between  the deceased  and A-1 over the watt (boundary line) of  their respective  plots. On  July 19,  1984, at or about 6.45  A.M. the  deceased accompanied by his father had gone to  cultivate their  plot. Daljit  Kaur,  wife  of  the deceased also  reached there  at or about 8.30 A.M. carrying breakfast for her husband and son. On seeing Daljit Kaur (pw 4) coming  P.W. 4  went to the hand-pump to bring water in a pitcher when  he saw A-1 and A-2 coming from the side of the nearby field armed with gandasas, shouting that Jasbir Singh would not  be spared.  Immediately thereupon  both  of  them started  assaulting   Jasbir  Singh  with  their  respective gandasas as  a result  whereof Jasbir  Singh fell  down.  On

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alarms being  raised by  PW 4  and PW 5 both the accused ran away. Jasbir  Singh was  then put  in a trolley and taken to Hospital at  Raman. Dr.  Mittal (PW  I), the  Senior Medical officer, Civil  Hospital,  Raman,  found  the  condition  of Jasbir Singh serious and, therefore, , referred him to Civil Hospital,  Bhatinda   and  simultaneously   sent  a  written information to  Station House    Officer,  of  Raman  police Station. Accordingly  Jasbir Singh was taken to the Bhatinda hospital, where he expired in the afternoon.      In the  meantime ASI Harbhajan Singh (PW 6) had reached the hospital  at Raman on receipt of the written information from the  doctor. As  Jasbir Singh  was not in a position to make a  statement he  recorded the statement of Jagjit Singh (Ex.p.9) and  sent it  to police station for registration of the case.  While  in  the  hospital  he  also  recorded  the statement of  Daljit Kaur  and then  left for  the spot.  He prepared a  rough site  plan, collected  some blood  stained earth from the spot and after preparing a sealed parcel made arrangement to  forward the  same for  chemical examination. From there he went to Civil Hospital, Bhatinda only to learn that Jasbir  Singh had  already expired.  He  then  prepared inquest report upon his dead body and sent it for postmortem examination. Thereafter  the investigation  of the  case was taken by Inspector Rattan Singh (PW 8). During the course of investigation he  arrested A-1  and A-2 on July 22, 1984 and seized from  their possession two blood stained gandasas. He made two separate parcels in respect of the gandasas, sealed them and  forwarded to the chemical Examiner for examination and report.  On completion  of investigation,  he  submitted charge sheet  against both the accused and in due course the case was committed to the Special Court for trial.      Both the  accused pleaded  not  guilty  to  the  charge levelled against  them and  contended  that  they  had  been falsely implicated.  A-1, however, admitted that their field and that  of Jasbir Singh adjoined but denied that there was any altercation over its boundary.      Jagjit Singh  (PW 4)  and Daljit  Kaur (PW 5), who were the two  eye witnesses  produced by the prosecution to prove its case, narrated the prosecution case as detailed earlier. On a  careful perusal of their evidence we find that inspite of searching cross examination the defence could not succeed in eliciting  any favourable  answer so as to persuade us to hold that  their evidence  was unworthy  of credit.  On  the countrary, we  find that the injuries found on the person of the  deceased  on  postmortem  examination  by  Dr.  Subhash Chander (PW  3) fit  in with  the evidence  of the  two  eye witnesses. Besides, the presence of human blood on the earth collected from  the spot and on the gandasas seized from A-1 & A-2  as disclosed  by the  report of  chemical examination (Ext. P-15)  lends assurance  to the  evidence of P.W. 4 and P.W. 5.  The trial  Judge was  therefore fully  justified in concluding that  the prosecution  had succeeded  in  proving that Tajinder  Singh had  assaulted with  a gandasa  causing injuries on his person.      The next  question that  falls for our determination is whether the  trial   Court was  justified in  recording  the impugned order of acquittal in favour of A-2 on the basis of the following findings:      "However, a  look at  the injuries would      shoe  that   the  same   could  be   the      handiwork of  one person.  The fact that      the prosecution  has not  been  able  to      bring motivating  force which might have      compelled Darshan  Singh accused to join      the crime  or that Darshan Singh accused

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    was friendly with Tejinder Singh accused      makes  the   case  of   the  prosecution      against Darshan  Singh accused  doubtful      Giving the  benefit  of  doubt  I  would      acquit Darshan Singh accused."      In our  considered view  neither of  the above findings can be  sustained. So  far as the first finding is concerned P.W.4 and  P.W.5 unequivocally  stated that both A-1 and A-2 inflicted gandasa  blows on  the deceased, which necessarily meant  that   similar  injuries  would  be  caused  thereby. Considered in  that perspective  the finding  of  the  trial Court that  all the  injuries found  on the  person  of  the deceased could  be the  handiwork of one person must be held to be  a speculative  one. The other finding that A-2 had no motive to  commit the  crime militates  against one  of  the postulates of  criminal trial  that  if  the  eye-witnesses’ account  of  an  incident  sustains  the  prosecution  case, question of motive pales into insignificance. In the instant case the  learned trial  Judge has  fully  relied  upon  the evidence of P.W. 4 and P.W. 5 - and in our view rightly - as against A-1  and, therefore,  to disregard their evidence as against A-2  on the  ground that  he had  no motive does not stand to  any reason. It is undoubtedly true that in a given case ocular  version may  be believed  against one  and  not against others  arraigned for  justifiable  reasons  as  the maxim "Falsus  in uno,  Salsus in omnibus" is not applicable in criminal  trials, but  then as  in the  instant case  the reasons given  by  the  trial  Court  for  disbelieving  the evidence of  p.w. 4 and p.w.5 so far as A-2 is concerned are patently wrong  he is also liable to be convicted along with A-1 for  assaulting Jasbir Singh (the deceased) with gandasa resulting in his death.      In view  of our above findings we have now to ascertain whether for  their such  acts A-1  and A-2  are liable to be convicted under  Section 302  read with  Section 34  IPC. It appears from  the evidence  of P.W.  4 and  P.W. 5  that the deceased was  assaulted both  with the  sharp edge and blunt edge of  the gandasas  and the  nature of  injuries also  so indicates. If  really the  appellants had intended to commit murder, they  would not  have certainly  used the blunt edge when the  task could   have  been expedited and assured with the sharp edge. Then again we find that except one injury on the head,  all other injuries were on non-vital parts of the body. Postmortem  report further  shows that even the injury on the  head was  only muscle  deep. Taking these facts into consideration  we  are  of  the  opinion  that  the  offence committed by  the appellants  is one under Section 304 (Part I) IPC and not under Section 302 IPC.      For the foregoing discussion we set aside the acquittal of Darshan  Singh (A-2) and the conviction of Tejinder Singh (A-1) under  Section 302  IPC and convict both of them under Section 304 (Part I) read with Section 34 IPC. Having regard to the  fact that since the offence was committeed more than 11 years  have elapsed  we feel  inclined to  pass a  lesser sentence   than   they   would   have   normally   deserved. Accordingly, we  sentence each  of them  to suffer  rigorous imprisonment for 7 years.      Both the  Criminal appeals  are allowed  to the  extent indicated above.  Darshan Singh  (A-2) should  be now  taken into custody  to serve  out the  sentence imposed  by us and Tejinder Singh  (A-1) who  is on  bail will now surrender to his bail bond to serve out the sentence as modified by us.