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PETITIONER: BALAKA SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT16/04/1975

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA UNTWALIA, N.L.

CITATION:  1975 AIR 1962            1975 SCR  129  1975 SCC  (4) 511  CITATOR INFO :  R          1990 SC1709  (38)  D          1991 SC  63  (3)

ACT: Evidence-Appreciation   of-Addition  of  names  in   inquest report-Delay  in  submission of  first  information  report- Effect of

HEADNOTE: A  cousin of the deceased, who acted as his body  guard  and the  first appellant and his party were on  inimical  terms. Some  years  before the occurrence the first  appellant  was charged  with an offence of murder, in which the cousin  was the chief prosecution witness.  The appellant was  acquitted by  the  High  Court  in  that  case.   Shortly  before  the occurrence the appellant filed an application under s.  107, Cr.P.C.  against  the cousin of the deceased and  his  party which  gave rise to a fresh grouse between the party of  the prosecution and the party of the appellants.  On the day  of the  occurrence,  it  was alleged, that the  cousin  of  the deceased saw the appellant and his party consisting of  nine members going towards the house of the deceased, armed with, deadly  weapons.  All the nine persons entered the house  of the deceased and attacked him.  The deceased was alleged  to have fallen dead with the spear blow of the first appellant. The  accused  caused injuries to the wife when she  came  to protect  the  deceased.  The Sessions  Judge  convicted  the appellant  under s. 302 and the other accused under  s.  302 read with s. 149. On  appeal  the  High  Court  affirmed  the  conviction  and sentences  against  the five appellants  and  acquitted  the remaining four accused on the ground that in the body of the inquest  report the names of the four acquitted accused  did not  find  place  and that the names  of  the  nine  accused including those of the four accused mentioned on the top  of the  inquest report was an addition made by the Police  Sub- Inspector to help the prosecution. Allowing  the appeal of the five convicted accused  to  this Court, HELD : 1(a) The prosecution case against the five appellants has not been proved beyond reasonable doubt.  The High Court had given cogent and substantial reasons for acquitting  the

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four  accused  but in that process it had  given  a  finding which  is completely destructive of the  entire  prosecution case  itself.   Although the names of all the  nine  accused were  mentioned  at the top of the inquest report  the  High Court found that this was ;in addition made by the Assistant Sub-Inspector  to  help  the prosecution and  to  bring  the inquest report in conformity with the F.I.R. The prosecution has not been able to give any reasonable explanation for the omission  of the names of the four acquitted accused in  the inquest  report.  Even the Assistant Sub-Inspector, who  was examined   as  a  witness  had  not  chosen  to  _give   any explanation  for  this deliberate omission.   This  omission throws serious doubt not only on the complicity of the  four accused  but  also on the veracity and authenticity  of  the F.I.R.  itself.  When once it is established that the  names of  the four accused were deliberately added in the  inquest report  at  the  instance of the prosecution,  there  is  no guarantee regarding the truth about the participation of the other  five  accused  in assault of the  deceased.   If  the prosecution  could  go  to the extent  of  implicating  four innocent  persons  by insetting their names in  the  inquest report and in the F.I.R., they, could very well have put  in the  names  of the other five appellants also  because  they were  inimical to the prosecution party. [133C-G-H,  134B-C, 135C-D] (b)A perusal of the evidence of the prosecution  witnesses showed that the prosecution case against the appellants  and the four accused was so inextricably mixed up that it is not possible to sever one from the other.  In the instant  case, having regard to the partisan and interested evidence of the prosecution witnesses who could implicate the appellants and the  four accused equally with regard to the assault on  the deceased  it is not possible to reject the prosecution  case with  respect  to  the fourth accused  and  accept  it  with respect to the other five appellants. [135F-G, H]                             130 Zwinglee Ariel v. State of Madhya Pradesh, A.I.R. 1954  S.C. 15. referred to. (2)Under the High Court circulars and Police rules it  was incumbent  upon the police to send a copy of the  F.I.R.  to the  Ilaqa Magistrate immediately.  In the instant case  the F.I.R.  which  was  recorded at 10 P.M. on the  day  of  the occurrence  reached the Ilaqa Magistrate at 11 A.M.  on  the following day.  It is, therefore, clear that the F.I.R.  was a  belated  document.   If this were  so,  then,  there  was sufficient   time  for  the  prosecution  party,  who   were undoubtedly  inimical  to  the accused,  to  deliberate  and prepare a false case not only against the fourth accused but also against the five appellants. [134F-G-H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                      133 of 1970 Appeal by special leave from the judgment & order dated  the 21st  January,  1970 of the Punjab & Haryana High  Court  in Criminal Appeal No. 318 of 1967. R.   L. Kohli, for the appellants. M.   S. Dhillon, for the respondent. The Judgment of the Court was delivered by FAZAL  ALI, J.-This is an appeal by special leave  preferred by  the  appellants  Balaka Singh,  Joginder  Singh,  Pritam Singh,  Darbara  Singh  and Jarnail  Singh.   The  appellant Balaka  Singh has been convicted under s. 302 I. P.  C.  and

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sentenced  to imprisonment for life.  The  other  appellants have  been  convicted  under s. 302 read with  s.  1.49  and sentenced  to  life imprisonment and a fine of  Rs.  1,000/- each  or  in default further rigorous imprisonment  for  one year.  AR the appellants have also been convicted under  S., 143  I.P.C. and sentenced to rigorous imprisonment for  four months  each and under s. 148 to rigorous  imprisonment  for one  year each.  Balaka Singh has also been convicted  under s. 325 I.P.C. for having caused grievous hurt to Gurmej Kaur and  Harnam  Kaur  and  sentenced  to  two  years   rigorous imprisonment  and fine of Rs. 100.  The other  accused  have also been convicted under s. 325 read with s. 149 I.P.C. and awarded the same sentence as Balaka Singh.  Apart from these five  appellants  there  were four other  accused  who  were prosecuted before the Trial Court of the Additional Sessions Judge, Patiala, namely, Makhan Singh, Sucha Singh S/o  Inder Singh, Teja Singh and Inder Singh but these accused  persons were  acquitted  on appeal by the High Court of  Punjab  and Haryana.   The  High  Court  has,  however,  confirmed   the conviction  and sentences passed on the appellants  and  has dismissed the appeal and hence this appeal before us. Put briefly the prosecution case is as follows.  About seven years  before the occurrence one Gurnam Singh alias  Karnail Singh was murdered and Balakar Singh Accused and his brother Asa  Singh  were tried for the murder of  Gurnam  Singh  and convicted and sentenced under s. 302 I.P.C. to  imprisonment for life by the Sessions Judge.  Balaka Singh and Asa Singh, however, went up in appeal to the High                             131 Court  and  were  acquitted.  Banta Singh P.  W.  3  who  is informant  in  the instant case was  the  chief  prosecution witness in the murder case in which Gurnam Singh was killed. It is also the admitted case of the prosecution that  Balaka Singh and his people were on inimical terms with Banta Singh and the deceased Gurnam Singh.  It was further alleged  that Dharam Singh the deceased in the present case was the cousin of  Banta Singh and wag used by him as a sort of  his  body- guard  to protect him from his enemies.  Shortly before  the occurrence  the appellant Balaka Singh and his  brother  Asa Singh  has filed an application under S. 107 of the Code  of Criminal Procedure against Banta Singh, Dharam Singh,  Budha Singh  and  Kashmir  Singh  and  in  those  proceedings  the licensed gun of the deceased Dharam Singh was also deposited and  this  gave rise to a fresh grouse on the  part  of  the prosecution  party  against the accused.   Banta  Singh  and Dharam Singh also had made a counter-application for  taking security  proceedings against the present appellants but  no action  thereupon  appears to have been taken.   The  actual occurrence took place on September 1, 1966, when Banta Singh P. W. 3 the informant and Dharam Singh the deceased had gone to  see  their fields.  They returned from their  fields  at about  6 P.M. and Dharam Singh had entered his  house  while Banta Singh took his leave and went to his own house.  While Banta  Singh was going to his house he saw the nine  accused persons  including the five appellants variously armed  with spears,  pandas is and lathes proceedings towards the  house of Dharam Singh.  The party. of the accused is said to  have entered  the house of Dharam Singh and Makhan  Singh,  Sucha Singh   s/o  Inder  Singh,  Inder  Singh  and  Teja   Singh- hereinafter  referred  to  as  ’the  four  accused’   (since acquitted  by the High Court) are said to have  incited  and exhorted their companions to finish off Dharam Singh and not to  spare any member of his family.  Dharam Singh was,  busy in tying the rope of his ox which was tethered in his court- yard.   The  accused after entering  the  court-yard  opened

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’attack  on the deceased Dbaram Singh in which Balaka  Singh took  a  main  part and gave a spear blow on  the  chest  of Dharam Singh as a result of which be fell down on the gound. Thereafter  Banta Singh raised a hue and cry to  the  effect that  Dharam  Singh  had been murdered.   Not  content  with giving  one  spear blow to Dharam Singh even after  he  fell down, joinder Singh is said to have given a barchha blow  on his right knee and Pritam Singh a gandasi blow in the  right shoulder of Dharam Singh.  Just at that moment Smt.   Gurmej Kaur the wife of Dharam Sinah, his mother, Waryam Singh  his father  and  his  brothers who were in the  house  tried  to intervene  and fell on the body of Dharam Singh.   But  they were  also  assaulted by Joginder Singh,  Balaka  Singh  and others.   It  is said that other inmates of the  house  were also  assaulted.  On hearing the cries of  Banta  Singh  the informant, Harnam Singh and Kapur Singh reached the spot and they saw Joginder Singh accused catching Dharam Singh by his long hair, while Balaka Singh had caught him by the legs and were  trying to drag the deceased towards the entrance  gate of the house.  Kapur Singh who was armed with a gun fired  a shot  in the air which dispersed the accused party  who  ran away.   In the aforesaid occurrence apart from the  deceased Dharam  Singh Mst.  Gurmej Kaur, Harnam Kaur, Waryam  Singh, Sucha Singh and Budha Singh also received injuries on  their person.                             132 Banta  Singh  P.W. 3 went to the police station  Julkan  and lodged  the F.I.R. the police station being 6/7  miles  away from  the  place of occurrence.  The report  was  lodged  at about 10 P.M. Accordingly a case under S. 302, 307 and other sections  of  the Indian Penal Code was  registered  by  the police.  Assistant sub-Inspector Teja Singh reached the spot along with Banta Singh and some constables.  After  reaching There at about 2 or 2.30 A.M. he prepared the inquest report and injury statement of the injured persons.  The dead  body was  sent  to  the  mortuary  at  Patiala  for   post-mortem examination.  The A.S.I. also took blood-stained earth  from the spot and the blood-stained clothes of the deceased  were also  taken.  After completion of the  usual  investigations the nine accused persons were challaned in the Court of  the Judcial Magistrate, Patiala who committed them for trial  to the  Court  of  Session  which  resulted   in  the  ultimate conviction  and  sentence against the accused  as  mentioned above.  The accused pleaded innocence and averred that  they had been falsely implicated due to previous enmity. In support of the prosecution 19 witnesses were examined but the  defence did not give any evidence at all.  The  learned Sessions  judge after considering the evidence came  to  the conclusion that the prosecution case against all the accused persons  was fully proved and he accordingly  convicted  and sentenced the accused persons as mentioned in his  judgment. The accused persons then filed an appeal in the HighCourt, which, while accepting the prosecution case against the five appellants in this Court, acquitted the four accused namely, Makhan   Singh Sucha Singh s/o Inder  Singh, Teja Singh  and Inder    Singh. The Court has given cogent  and  substantial reasons  for acquitting the aforesaide accused, but in  that process  they have given a finding which, in our opinion  is completly destructive of the centre prosecution case Itself. We may now refer to the reasons given by the High Court  for acquitting the four accused mentioned above.  The first  and foremost  reason given by the High Court was  that  although the inquest report was prepared by the A.S.I. it about  2.30 A.M.  in the morning, yet the names of the four accused  did not  find place in the body of the inquest report which  was

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made  on the basis of the report made to the police  by  the informant Banta Singh.  It is true that the names of all the nine  accused  were  mentioned at the top  of  the  inqijest report  but the High Court found that this appears  to  have been  the addition made by the Assistant  Sub-Inspector’  to help  the  prosecution and to bring the  inquest  report  in conformity with the F.I.R. In this connection the High Court observed as follows               "The   first  thing  to  be  noted   in   this               connection  is  that the names of  these  four               appellants  do not figure in the body  of  the               inquest report although they are mentioned  in               the  heading thereof as well as in  the  first               information  report.  The  circumstance  leads               clearly  to the inference that throughout  the               preparation   of  the  inquest  report   these               appellants  were not named as members  of  the               party of the culprits and that                                    133               their names were added in the said heading  as               well  as  in  the  first  information   report               later." We  have  perused Ext.  P. H. inquest report  ourselves  and find that in the brief facts of the case which were made  to the  Investigating Officer by Banta Singh only the names  of Balaka  Singh, Joginder Singh, Pritam Singh,  Darbara  Singh and  Jarnail Singh are mentioned.  There is no reference  at all to Makhan Singh, Sudha Singh s/o Inder Singh, Teja Singh and Inder Singh in the report nor is it mentioned that  Teja Singh and Inder Singh incited or exhorted the other  accused persons to open the assault on the deceased which appears to be  the starting point of the occurrence.   The  prosecution has  not  been able to give any reasonable  explanation  for this  important omission in the inquest report.  The  A.S.I. Teja Singh was questioned on this point and he stated thus "The brief statements of the facts of the case mentioned  in the  inquest report are based on the report lodged by  Banta Singh.  In this brief statement, however, the names of Inder Singh, Sucha Singh, Teja Singh and Makhan Singh accused  are not mentioned as culprits, specifically.  It is correct that in  the  brief  facts mentioned in the  body,  there  is  no reference of the names of these four men." Thus  even the A.S.I. while admitting that the names of  the four  accused  were  not mentioned by Banta  Singh  has  not chosen to give any explanation for this deliberate  omission to  that effect.  According to the prosecution the names  of the  four accused who have been acquitted by the High  Court had  already been mentioned in the F.I.R. which  was  lodged 4/5  hours  before  the inquest report  was  prepared.   Any Investigating  Officer  possessing some  intelligence  would have  at  once questioned Banta Singh as to how it  is  that while he had named the four accused in the F.I.R. he had not referred  to  them  in his brief statement  in  the  inquest report.   In these circumstances, therefore, the High  Court was  fully  justified in holding that the  omission  of  the names of the four accused acquitted by the High Court in the inquest report was a very important circumstance which  went in favour of the four accused.  This omission has a two-fold reaction.   In  the  first  place it  throws  doubt  on  the complicity  of the four accused acquitted by the High  Court and  secondly  it casts serious doubt on  the  veracity  and authenticity of the F.I.R. itself.  It is not understandable as to why the four accused who are alleged to have taken  an active  part in the assault on the deceased were not at  all mentioned  in the inquest report and in the brief  statement

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of  the  very person who had lodged the  F.I.R.  four  hours before.   Counsel  for  the  State  tried  to  justify  this omission  on the ground that in the inquest report Ext.   P. H. the    names of all the nine accused appear to have  been mentioned at the    top   of  that  document.    There   is, however, no column for mentioning  the names of the  accused and, therefore, there was no occasion for the  Investigating Officer  to have mentioned the names of the accused in  that particular place.                             134 Finally  the  Investigating  Officer  P.W.  23  Teja   Singh admitted  in his evidence that he had prepared  the  inquest report and that he had read out the same to Banta Singh  and Harnam  Singh P.Ws. but later tried to say that he  did  not recollect  whether  he had read out the  inquest  report  to Banta  Singh  and Harnam Singh before  getting  their  thumb impressions on the inquest report.  This circumstance speaks volumes against the prosecution case.  If, therefore, it  is once  established  that the names of the four  accused  were deliberately added in the inquest report at the instance, of the  prosecution there is no guarantee regarding  the  truth about  the participation in the assault on the’ deceased  by the appellants. Another  finding  which demolishes the  entire  edifice  and fabric of the prosecution case is that the F.I.R. itself was not  written  at 1C P.M. as alleged by the  informant  Banta Singh  but it was written out after the inquest  report  was prepared  by  the  A.S.I. and after the names  of  the  four accused  acquitted  by the High Court were inserted  in  the inquest report.  If this is true then the entire case of the prosecution becomes extremely doubtful.  The High Court  has also derived support from another important circumstance  to come to the conclusion that the F.I.R. was not written at 10 P.M. as alleged by the prosecution but after the preparation of  the  inquest report at about 2.30 A.M.  The  High  Court points  out  that according to the prosecution  the  special report reached the Ilaqa Magistrate at 11 A.M. on  September 2, 1966 i.e. more than 12 hours after the F.I.R. was  lodged at  the police station, whereas it should been delivered  to the  Ilaqa  Magistrate during the night or at least  in  the early   morning.   Counsel  appearing  for  the   appellants submitted that under the High Court Circulars and the Police Rules  it was incumbent upon the Inspector who recorded  the F.I.R. to send a copy of the F.I.R. to the Ilaqa  Magistrate immediately  without  any  loss of time  and  the  delay  in sending  the F.I.R. has not been properly explained  by  the prosecution  as  rightly  held by the High  Court.   It  is, therefore,  clear  that  the F.I.R.  itself  was  a  belated document  and came into existence during the small hours  of September  2, 1966.  Indeed if this was so, then  there  was sufficient   time   for  the  prosecution  party   who   are undoubtedly  inimical  to  the accused  to  deliberate  and- prepare  a false case not only against the four accused  who have  been acquitted, but against the other five  appellants also.   The  High Court also found that the best  person  to explain the delay in sending the special report to the Ilaqa Magistrate  was  the Police Constable who  had  carried  the F.I.R.  to the Ilaqa Magistrate but that Constable  has  not been  examined by the prosecution.  On this point  the  High Court observed as follows               "The  delay with which the special report  was               made  available  to the  Ilaqa  Magistrate  is               indicative   of  the  fact  that   the   first               information report did not come into existence               probably  till about sunrise by when the  dead

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             body  had  already  been  despatched  for  the               purpose  of postmortem examination to  Patiala               along  with  the inquest report, so  that  the               Investigating  Officer  was  no  longer  in  a               position  to make alterations in the  body  of               that report and all that be could do was to               135               add  later  on  the names  of  the  said  four               appellants to its heading." This finding of the High Court is based on cogent  materials and convincing reasons, but unfortunately the High Court has not  considered the effect of this finding on the  truth  of the prosecution case with regard to the participation of the appellants.  In our opinion, in view of the finding given by the  High  Court it has been clearly  established  that  the F.I.R.  was  lodged  not  at  10  P.M.  as  alleged  by  the prosecution but some time in the early morning of  September 2,  1966.   If  this  was  so,  then  the  F.I.R.  lost  its authenticity.  If-the prosecution could go to the extent  of implicating  four innocent persons by inserting their  names in  the inquest report and in the F.I.R. which  was  written subsequent  to the inquest report they could very well  have put  in the names of the other five appellants also  because they  were  equally inimical to the prosecution  party,  and there could be no difficulty in doing so because it is found by  the  High  Court  that  all  the  prosecution  witnesses belonged  to  one party who are on inimical terms  with  the accused. The  suggestion of the appellants is that they were  falsely implicated  because  the prosecution could  not  succeed  in convicting  Balaka Singh for the murder of Gurnam  Singh  in the previous murder case.  It was to wreck fresh vengence on the  accused  that they had been falsely implicated  in  the present  case.  It is true that there are as many  as  eight witnesses  who are alleged to have seen the  occurrence  and they  have  given a parrot-like version of the  entire  case regarding the assault on the deceased by the various accused persons.   All these witnesses have with one voice and  with complete unanimity implicated even the four accused persons, acquitted  by  the High Court, equally with  the  appellants making absolutely no distribution between one and the other. A perusal of the evidence of the prosecution witnesses would show  that the prosecution case against the  appellants  and the four accused is so inextricably mixed up that it is  not possible  to sever one from the other.  It is true that,  as laid  down  by this Court in Zwinglee Arivel  v.   State  of Madhva Pradesh(1) and other cases which have,, followed  that case, the Court must make an attempt to separate grain  from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the  falsehood. Where  the grain cannot be separated from the chaff  because the grain and the chaff are so inextricably mixed up that in the   process  of  separation  the  Court  would   have   to reconstruct  an absolutely new case for the  prosecution  by divorcing the essential details presented by the prosecution completely from the context and the background against which they  are made, then this principle will not apply.  We  are satisfied  that  in the facts of the  present  case,  having regard  to  the  partisan and  interested  evidence  of  the prosecution  witnesses who can implicate the appellants  and the  four accused equally with regard to the assault on  the deceased  it is not possible to reject the prosecution  case with respect to the four accused and accept it with  respect to the other five appellants.  If all the witnesses could in one breath implicate the

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(1)  A.I.R. 1954 S.C. 15. 10SC/75-10 135 four  accused  who appear to be innocent,  then  one  cannot vouchsafe  for  the fact that even the  acts  attributed  to Balaka  Singh, Joginder Singh, Pritam Singh,  Darbara  Singh and Jamail Singh may have been conveniently made to suit the needs  of the prosecution, case having regard to the  animus which  the  witnesses as also Banta Singh bore  against  the appellants.   In  these  circumstances,  therefore,  we  are satisfied that in view of the finding of the High Court that the F.I.R. was a belated document having come into existence much  later than the time it is said to have  been  recorded and  which adds the names of the four accused  against  whom the  prosecution  case  is  absolutely  identical  with  the appellants,  the  case of the appellants cannot  at  all  be distinguished from that of the four accused in any  respect. If the case against the four accused fails, then the entire’ prosecution  will  have to be discarded and it will  not  be possible  for this Court to make out a new case  to  convict the appellants as has been done by the High Court. In  order to test the veracity of the prosecution  witnesses we find that one of the eye witnesses, namely, Waryam  Singh has deposed that Gurmej Kaur, the wife of the deceased,  who was drawing water, from the hand pump when the accused came, ran towards Dharam Singh and fell upon his body in order  to protect  him from receiving further injuries.  At  this  the appellant  Balaka  Singh  is alleged to  have  given  her  a barchha  blow on her right hand and the  appellant  Joginder Singh  gave  a barchha blow on the left  buttock  of  Gurmej Kaur.   According  to the evidence of this witness  the  two appellants  Balaka Singh and Joginder Singh appear  to  have assaulted  Gurmej  Kaur  with  a  sharp-cutting  instrument, namely,  barchha  and  spear.  This  version  is  completely falsified by the medical evidence of Dr. Mohinder Singh  who examined Gurmej Kaur and who stated in his evidence that all the  injuries  on Gurmej Kaur were caused by  blunt  weapon. Moreover out of the six injuries which Gurmej Kaur  received on  her  body not a single one could be caused by  a  sharp- cutting  instrument  because  there was  no  penetrating  or incised  wounds.   The  injuries  were  either   contusions, abrasions or lacerated wounds.  While the witness Waryam  G- Singh  says  that  the accused Joginder Singh  had  given  a barchha  blow on the left buttock of Gurmej Kaur,  according to  the medical evidence, it was a lacerated wound  deep  on the upper and outer part of the leftbuttock.       This, therefore, clearly demonstrates the extent to which the  witnesses could  have gone in order to implicate all the  accused.  In view  of  these  circumstances and  the  evidence  discussed above,  we are clearly of the opinion that  the  prosecution case  against the five appellants has also not  been  proved beyond  reasonable doubt and the manner in which the  F.I.R. and  the inquest report have been made  throws  considerable doubt on the complicity of the five appellants in the crime. The  result is that the appeal is allowed and the  order  of conviction and sentence passed on all the appellants is  set aside.   The appellants are acquitted of the charges  framed against them and are directed to be released forthwith. Appeal allowed. P.B.R. 137