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PETITIONER: GARIB SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT22/03/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH GROVER, A.N.

CITATION:  1973 AIR  460            1972 SCC  (3) 418

ACT: Appreciation  of Evidence-Principles Reversal of judgment of acquittal by High Court when justified-Indian Penal Code, s. 34, applicability of.

HEADNOTE: Five persons including three appellants were jointly charged and tried for rioting and offence committed in the course of it.  The Sessions Judge acquitted all the accused because he found the prosecution story to be art ficial.  He also  took into  account  the delay in lodging  the  first  information report  and the fact that there were no ’blood  marks  found where the injured persons were alleged to have fallen  down. The  High Court in appeal filed by the.  State  re-assessed, the  evidence  and  reversed the judgment  of  acquittal  in respect  of the three appellants.  The appellants  had  been charged  in respect of vicarious offences under s.  149,  of the  Indian Penal Code, but the High Court, in view  of  the acquittal   of  two  of  the  five  accused,  convicted   he appellants  in respect of those offences under s. 34 of  the Code.  In appeal by special leave this Court had to consider (i) whether the reversal of the judgment of the trial  court by the High Court was justified with reference to principles of appreciation of evidence and the decisions of the  Court, (ii) whether the conviction of the appellants by recourse to s. 34 was justified on the facts of the case, HELD:     (i) Perhaps there is no uniform method of arriving at  correct  or  at  least  satisfactory  conclusions   upon veracity  of versions placed before the Court which  can  be applied  to  all cases.  It may be possible to  decide  many cases by determining the main or crucial point on which  the decision  of  the case one way or the other  may  turn.   In other cases, where many disputable points are revolved, none of  which is conclusive, a more elaborate and  comprehensive treatment  of the various points involved in the whole  case may  be  necessary.  Courts have, however,  to  attempt  to, separate  the  "chaff from the grain" in every  case.   They cannot abandon this attempts on the ground that the case  is baffling  unless  the  evidence is really  so  confusing  or conflicting that the process cannot be        reasonably carried out. [983 H-984B] Chet Ram v. State, [1971] 1 S.L.I.153, referred to. (ii)  In judging the credibility of aversion the Court  must

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apply the standards of a reasonable and prudent man. [983 F] (iii)  In  the present case the High Court  had  undoubtedly corrected  the  erroneous approach of the  learned  Sessions Judge  by pointing out obvious answers to the  points  which the Sessions Judge seemed to regard as riddles incapable  of solution.   For  example,  the delay in  lodging  the  First Information Report, although suspicious, could certainly  be satisfactorily, explained by the fact that the stab would in the  stomach of one of the victims was so serious  that  his statement  could not be taken for several  days  afterwards. The absence of blood at, the place of occurrence 979 was  given undue importance by the trial court inasmuch  ’as the  blood  might  have got soaked in  the  clothes  of  the victims.  Secondly after the occurence, a number of  persons must  have  passed  to  and fro over  the  path,  where  the occurrence took place, before the arrival of the police next day.  The principles laid down by this Court were applied by the High Court in dealing with the case and interference  by this  Court in respect of the appraisal of evidence  by  the High Court would not be justified. [984 P-G; 986 A-B] Khedu  Mohton & Ors. v. State of Bihar, [1971] 1 S.C.R.  839 and  Laxman  Kalu Nikalje v. The State of Maharashtra,  [1968]  3 S.C.R. 685, referred     to. (iv) The  High Court however erred in applying s. 34  I.P.C. to the facts of     the  present case.  Taking the  totality of  circumstances, particularly the nature of the  injuries, the  Diwali night, and the place of occurrence on  a  public thoroughfare  into account, the pattern of the case was  not that of a pre-plained attack.  Mere carrying of spears which was not unusual for Sikhs would not establish  pre-planning. The  conviction  of the appellants with reference to  s.  34 must therefore be set aside. [987 D-G; 989 G-H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165  of 1969. Appeal  by special leave from the judgment and  order  dated April  15,  1969  of the Punjab and Haryana  High  Court  in Criminal Appeal No. 876 of 1966. Nur-ud-din Ahmed and J. P. Aggarwal, for the appellants.  V. C.  Mahajan  and R. N. Sachthey, for  the  respondents.  The Judgment of the Court was delivered by Beg, J. Garib Singh, aged 36 years, Mohinder Singh, aged  15 years,  Bhagat  Singh, aged 25 years, Rain  Singh,  aged  65 years,  Gurdial Singh, aged 66 years, were  jointly  charged and  tried by the Additional Sessions Judge of  Patiala  for rioting  and offences committed in the course of it.   Garib Singh  was  charged separately under Sections  148  and  307 Indian Penal Code for an injury he was alleged to have given in the abdomen of Sarwan Singh (P.W. 7) with a Barchha,  and for  offences punishable under Sections 324 anti 323  Indian Penal  Code with the aid of Section 149 Indian  Penal  Code. Mohinder Singh was separately charged under Sections 148 and 324  Indian  Penal Code for inflicting an incised  wound  on Chanan Singh (P.W. 8) with a spear, and, under, Sections 307 and  323  read with Section 149 Indian Penal  Code.   Bhagat Singh  was  separately charged under Sections  147  and  323 Indian  Penal Code for causing simple injuries with A  lathi on Gurdev Singh (P.W. 9) and Ralla Singh (P.W. 10) and  With the  aid  of  Section 149 Indian  Penal  Code  for  offences punishable  under  Sections 307 and 324 Indian  Penal  Code. Ram Singh

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980 and  Gurdial Singh, who were also said to have been  members of’ an unlawful assembly which caused injuries to the  party of  the complainant Sarwan Singh at about sunset  on  24-10- 1965,  the date on which the festival of Diwali  fell,  were alleged to have only instigated their companions by,  giving lalkaras and saying that Sarwan Singh should not be  spared. They were, therefore, charged separately only under  Section 147  Indian Penal Code and for offences under Sections  323, 324, and 307 Indian Penal Code with the help of Section  149 Indian  Penal  Code.   None  of  the  accused  persons  was, however, charged with any offence with the aid of Section 34 Indian Penal Code. The  learned Sessions’ Judge Who tried the  accused  persons had after elaborately examining the prosecution and  defence versions,  found  the  prosecution case to  be  "shroded  in mystery  as  to  how all the  accused  got  together,  armed variously  in  the house of Ram Singh  and  assaulted  hi-in (i.e.  Sarwan Singh) all of a sudden by darting out of  the, house  of  Ram  Singh".  The picture  thus  painted  by  the learned  Sessions’  Judge to convince himself of  the  melo- dramatic  artificiality of the prosecution version  did  not really accord with prosecution evidence which was that, when Sarwan Singh was passing in front of the house of Ram Singh, the  accused  came out and surrounded him, and  that  Sarwan Singh  thereupon  raised an alarm which  brought  the  other injured witnesses, who had tried to salve him, to the scene. It  was  only  when  Ram  Singh  and  Gurdial  Singh   gave, ’lalkaras’  or  instigated the others to attack and  not  to spare  Sarwan  Singh that the assault was  alleged  to  have begun.   It is not unlikely that even this version  did  not bring out the whole truth. The defence version, put forward through Kartar Singh  (D.W. 2), was that, on the Diwali night of 24-10-1965, at about  8 p.m.,  one Gurdev Singh (P.W. 12) son of Mangal  Singh,  had come with Chanan Singh (P.W. 8) the injured and Ralla  Singh (P  W. 10) and Gurdev Singh Harijan and had a  quarrel  with Sarwan  Singh  (P.W. 7) injured, and with one  Gurbux  Singh (parentage not given) over the ownership of a tractor  which was parked nearby.  It was stated by Kartar Singh that  both sides  were drunk and that Gurdev Singh son of Mangal  Singh had  given a barchha blow to Sarwan Singh and  Gurbux  Singh had given a barchha blow to Chanan Singh.  It was sought  to be  proved  by the defence, through other  witnesses,  that, after this incident, there was a compromise between the  two sides  so  that  Gurdev Singh son of Mangal  Singh,  at  the instance of Sarwan Singh, agreed to forego the unpaid  price of  the tractor, amounting to Rs. 5,000/-, and to  patch  up the  quarrel.  It was not even attempted to be explained  by the  defence  version  how  an  agreement  could  emerge  so suddenly not 981 only  to patch up  a quarrel in which a very serious  injury was  sustained by Sarwan Singh but also to  involve  accused persons  in place of the actual assailants of  Sarwan  Singh and  others.  The suggestion, however was that  the  section case, according to which there was litigation between proses Singh and Bhagat Singh accused on one side and Sarwan  Singh (P.W. 7) on the other, and the intervention of Chanan  Singh (P.W. 8), who had his own scores to settle with Garib Singh, explained the implication of all .the accused persons.   The learned  Sessions’  Judge was, we find, ,more  mystified  by certain features in the prosecution’ case than impressed  by I  the  very unnatural and incredible defence  version.   He had,  therefore, acquitted all the accused persons for  what

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he  considered  to. be. the weaknesses. of  the  prosecution case,  but  he had also mentioned the  defence  version  as, though it could conceivably contain some truth. On an appeal filed by the State of Punjab, a Division  Bench ’of  the  High Court listed and then examined  each  of  the features  of the evidence in the case which had baffled  tie learned  Sessions  Judge.   It then  re-assessed  the  whole prosecution evidence itself.  It came to the conclusion that the  injured eye witnesses, namely, Sarwan Singh  (P.W.  7), Chanan Singh’ (P.W. 8), Gurdev Singh .son of Sadda Ram (P.W. 9), Ralla Singh (P.W. 10) must be believed, at any rate with regard  to the three accused persons, namely,  Garib  Singh, Mohinder  Singh and Bhagat Singh, who were alleged  to  have actually caused injuries to them.  It, therefore,  convicted the three appellants before us by special leave by  applying Section  34 I.P.C. Garib Singh was convicted  under  Section 307 I.P.C. separately, for the injury caused to Sarwan Singh (P.W.  7) and sentenced to five years rigorous  imprisonment and  he  was  also convicted and  sentenced  to  one  year’s rigorous  imprisonment  under Section 324/34  and  to  three months’  rigorous imprisonment under Section  323/34  I.P.C. Mohinder Singh was convicted separately and sentenced to one year’s  rigorous imprisonment under Section 324 I.P  C.,  to three  years’  rigorous imprisonment under   Section  307/34 Indian   Penal   Code,  and  to   three   months’   rigorous imprisonment  under Section 323/34 I.P.C. Bhagat  Singh  was convicted separately and sentenced to three months’ rigorous imprisonment  under  Section  323  I.P.C.,  to  five  years’ rigorous imprisonment under Section 307/34 I.P.C. and to one year’s,  rigorous imprisonment under Section  323/34  I.P.C. All the sentences were directed to run-concurrently. The High Court had stistained the acquittal of Ram Singh and Gurdial Singh for two reasons firstly, because the delay, in the making of the First Information Report, which was  shown to have been lodged on the- next day i.e. to say  25-10-1965 at 11.30 a.m. 982 at Police Station Ghanaur in’ District Patiala at a distance of only 1-1/2 miles from village Burki where the  occurrence was  shown to have taken placed and, secondly, because  both Rain  Singh and Gardial Singh "are said to have  been  empty handed at the time of the occurrence "and to neither of whom any injuries are attributed".  It may be recalled here, that these   two   accused  persons  were  only  said   to   have participated by giving lalkaras and saying that Sarwan Singh should  not  be spared., The High Court  thought  that  this evidence  of instigation was not enough to establish  beyond reasonable  ’doubt  the  participation’  of  Ram  Singh  and Gurdial  Singh  in  the assault which took  place  upon  the injured  persons.   Such  allegations  of  participation  by giving  lalkaras are sometimes made only to show  additional overt  acts  so as to, take in at least "five  persons  arid make  out  the ingredients of an offence under  Section  147 against  all  of them.  When delayed lodging  of  the  First Information Report indicated that deliberation and consulta- tion  for implication of some innocent persons  with  guilty ones  was possible, this distinction made by the High  Court could not be said to be unreasonable. The High Court had, after examining the evidence of each  of the  defence witnesses, emphatically rejected the  unnatural defence  version  as utterly unworthy of credence.   It  had rejected  the testimony of Kartar Singh (D.W. 2),  the  only alleged  eye witness of the defence version, on  the  ground that  he stated that he had not, before he appeared to  give evidence in the witness box on 7-4-1966, disclosed  anything

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about the incident to anyone.  It considered this  statement of  the  Witness to be wholly unnatural.  On  examining  the evidence  of this witness, we find that he had  also  stated that  he was not examined by the Police, and. presumably  to explain this allegation, he had even stated that the  Police had  not  come to the village.  Furthermore, he  had  stated that Gurbux Singh (whose identity is uncertain, as there are more  than  one Gurbux Singh mentioned in  the  evidence  on record, and, for all we know, there may be others with  this name)  had  given  a barchha blow to  Chanan  Singh  on  his umblicus which is quite absurd as there was no injury at all on  the umblicus of Chanan Singh.  The witness stated  that, although  Sarwan  Singh, Chanan Singh, Ralla  Singh,  Gurdev Singh.  were all armed with lathis no blow with lathis  were given  by  them.  His evidence does not  explain  the  lathi injuries  of  any  of  the  injured  persons  at  all.   His statement could not, therefore, be characterised as even  an attempt  to  satisfactorily explain injuries.   We  have  no doubt, after examining his evidence. that he could not be an eve witness of the occurrence at all.  The remaining defence witnesses, Gurbux Singh (D.W. 1).  Babu Singh (D W. 3).  and Vishnu  Sarut)  (D W. 4), either made  statements  based  on hear-say or attempted to prove the highly unnatural  alleged agreement or compromise between 983 Sarwan Singh whose condition, disclosed by medical evidence, was  such  that he could not be in ’a position to  say  much about  anything  for  several  days  let  alone  enter  into negotiations  and compromise.  We have, therefore, no  doubt in  our  minds  that  the High  Court  was  quite  right  in completely  rejecting  the defence Version which  could  not even pass muster as a possible explanation, for whatever  it may  be worth, as the learned Sessions Judge wrongly  seemed to think that it could. We  have only disposed of the defence version first  because the  learned  Counsel for the appellants, placed it  in  the forefront  and  tried  to convince us that it  was  not  as. incredible  as  the High Court thought it  to  be.   Learned Counsel  for the appellants asserted that truth is  stranger than  fiction.   We think that, at any  rate  in  appraising evidence  led  in law Courts, such an  assumption  would  be extremely  hazardous  one to adopt.  If it were  adopted  it would   introduce  an  illegal  criterion   for   appraising evidence.   Section 3 of the Indian Evidence Act  enables  a Court  to  employ  only the standards of a  prudent  man  in judging what is to be deemed to be proved according to  law. And,  Section  114  of the Evidence Act  enables  Courts  to presume  only that which accords with the ordinary,.  course of  events  and  human  nature and  not  what  would  be  an aberration from such a course.  Indeed, if such a  principle was  to  be applied in judging some of the features  of  the prosecution  case  before  us, which  are  assailed  by  the learned  Counsel  for the appellants,  these  features  will appear  to be more and not less credible.  The degree  which proof must reach before a Court trying a criminal case  will convict is no doubt that which a prudent man will employ  in reaching  a  conclusion beyond reasonable doubt  whereas  an accused need not prove his case to the same extent in  order to  succeed.   But, the standards employed in  judging  each version  are those of a reasonable and prudent man.  Such  a man  can  only  adopt what is natural  to  expect  and  what accords  with common sense and ordinary experience  but  not what  is extraordinary and unexpected as a reliable test  of credibility of witnesses. The approach of the learned Sessions Judge to the whole case

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seems  to  us to have been affected by  an  overemphasis  of minor  points emerging from evidence in the case which  were magnified  into  major  defects  of  the  prosecution  case. Perhaps there is no uniform method of arriving at correct or at least satisfactory conclusions upon veracity of  versions placed  before the Court which can be applied to all  cases. It  may be possible to decide many cases by determining  the main or crucial point on which the decision of the case  one way  or  the  other may turn.  In other  cases,  where  many disputable points,are involved none of which is  conclusive, a more elaborate and comprehensive treatment of  the 984 various  points  involved  in the,  whole  case  may  became necessary.  Courts have however to attempt to  separate  the "chaff  from the grain" in every case.  They cannot  abandon this attempt on the ground that: the case is baffling unless the evidence’ is really so confusing or conflicting that the process cannot be reasonably Carried out.  The method to  be employed in making this attempt was stated as follows by one of us (Beg, J.) in Chet Ram v. State(1);               " Courts, in search of the core of truth, have               to  beware of-being misled by half  truths  or               Individually  defective  pieces  of  evidence.               Firstly,  undeniable facts  and  circumstances               should be examined.  Secondly, the pattern  of               the  case  thus revealed in the context  of  a               whole  sequence  of  proved  facts,  must   be               scrutinized to determine whether a natural, or               probable and, therefore, a credible course  of               events is disclosed.  Thirdly, the minutias of               evidence, including established discrepancies,               should  be  put in the crucible of  the  whole               context of an alleged crime or occurrence  and               tested,  particularly  with reference  to  the               proved circumstances which generally provide a               more  reliable  indication of truth  than  the               faulty human testimony’ so that the process of               separating  the grain from the chaff may  take               place.  Fourthly, in arriving at an assessment               of credibility of individual witnesses, regard               must be had to the possible motives for either               deliberate  mendacity  or  subconscious  bias.               Lastly, the demeanour and bearing of a witness               in  Court should be carefully noticed  and  an               appellate  Court has had, in this respect,  an               advantage which it does not possess". It seems to us that the High Court had undoubtedly corrected erroneous approach of the learned Sessions Judge by pointing out obvious answers to the points which the learned Session, s  Judge Seemed to regard as riddles incapable of  solution. For  example,  the delay in lodging  the  First  Information Report,    although   suspicious,   could    certainly    be satisfactorily explained by the fact that the stab wound  in Sarwan  Singh’s stomach was so ,serious that  his  statement could  not  be taken for several days afterwards,  Dr.  Prem Nath  (P.W. 1), who examined him at 5.25 a.m. on  25-10-1965 found  that a small portion of the omen-turn was  protruding from  the  wound, 5 c.m. X 3.5. c.m., and  the  injured  was found in severe pain.  The only other injury on his body was an  abrasion  I  c.m. X I c.m. on the margin  of  the  right ,elbow  joint.   Dr. H. M. Nahar (P.W. 2), stated  that  the injured Temained under the effect of morphine sulphate  upto 26.10-1965, (1)  [1971] (1) Simla Law Joal p. 153 @ p. 157. 985

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after which his condition improved- The abdominal injury was considered  by the Doctor to be dangerous to life.   Another injured person Chanan Singh (P.W., 8)whose brother was  said to have filed a Civil suit against Nand Singh, the,  father. of  Garib  ’Singh appellant, and Jaimal  Singh,  brother  of Gurdial  accused, was not shown to be connected with  Sarwan Singh, Indeed, as already mentioned above, the suggestion of the defence was- that he had come to the scene with  persons opposed  to  Sarwan  Singh.   He  had  an  oblique   incised penetrating wound 1 1/2 " * 3/4 " X 4" on the right side  of his chest and a swelling on the left, elbow.  Just as Sarwan Singh  was taken in a cart to Patiala after the  occurrence, he  had been taken to Rajpura alongwith Rallar  singh  (P.W. 10)  who  had  received three  simple  injuries  with  blunt weapon.   Gurdev  Singh  (P.W.  9),  who  had  received  two contusion and a faint contusion with blunt weapons had  also gone  with  Chanan Singh and Ralla Singh to  Rajpura,  where they  were all medically examined.  It,  therefore,  appears that the injured were, quite naturally, more concerned  with getting  their  injuries  attended to than  with  lodging  a report immediately at the nearest Police Station.  The  High Court had in these circumstances, not given undue importance to the delay in the lodging of a First Information Report on 25-10-1965 signed by Chanan Singh. The learned Sessions Judge had used another fact against the prosecution without looking at the obviously. good answer to it foundin  the  evidence.   This fact  was  that,  on:  1 25-130-1965  at 8.30 a.m. Head Constable Kartar Singh  (P.W. 14) had been giventhe   injury  reports  and   the   First Information Report signed by Chanan Singh, when Gurdev Singh met  him but did not tell him that he had himself  witnessed the  occurrence.  Kartar Singh (P.W. 14), had said  that  he had waited-to ascertain facts from Chanan Singh himself, who was  lying injured in a hospital at Rajpura, before  sending the First Information Report to the Police State so that the case  may be registered.  In these circumstances, we,  think that  the  High Court was quite- right in  not  using  some. delay  in the lodging of the First Information  Report,"  in the same way as the learned Sessions Judge had done it.  The High  Court  used it, no doubt, as one of the  grounds,  for finding’  allegations  against the  alleged  instigators  as possible  exaggerations  but it had not,  doubted  the  bona fides of the whole prosecution case on this ground. Another fact which had-impressed the trial court very   much was  the failure of the Police to find any, marks of-  blood on  the  path in front of the house of Ram Singh  where  the occurrence  was  shown to, have taken place. It  had  to  be remembered  that  there Were only two injuries one  on  the, body  of  Sarwan  Singh and another on the  body  of  Chanan Singh, which could bleed and that 986 the  blood  would  first get soaked in the  clothes  of  the injured.   Morer,  by the time the police had come  to  the, spot  next  day quite a number of people and-  vehicles  may have passed to and fro over the path.  After the occurrence, even during the preceding night, which was that of Diwali, a number of persons must have passed over the path.  Hence the failure  of  the police to find any blood in  front  of  the house  of  Ram  Singh was also not so  inexplicable  as  the learned Sessions Judge seems to have thou lit it to be.’ Another  feature on which considerable emphasis was  placed, in  the course of arguments before us, was that Garib  Singh appellant  was  alleged to have inflicted the  most  serious injury of all in this case, on the abdomen of Sarwan  Singh, when  this accused was an important witness of the  case  of

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Sarwan  Singh  against Ram Singh and Bhagat  Singh  who  had challenged  the adoption of Sarwan Singh.  Garib  Singh  was said  to  be a witness of the adoption deed put  forward  by Sarwan  Singh.   It Was, therefore,  Contended  that  Sarwan Singh would not have liked to displease Garib Singh.  It was also urged that there was no, reason why Garib Singh  should take it into his head to suddenly attack Sarwan Singh, whose alleged  adoption deed had been witnessed by him.  This  may appear to be a somewhat peculiar feature in the case. But we have  no  evidence before us to show what  Garib  Singh  was doing in the’ company of Ram Singh and Bhagat Singh.  It  is not  inconceivable that either these two told him  something to put him  against Sarwan Singh, or, Sarwan Singh,  finding him in the corn pany of his adversaries, had said something. Garib  Singh,  who denied participation in  the  occurrence, could  not  be expected to say What had  incensed  him.   We think that the High Court had taken a correct and reasonable view in holding that, unless Garib Singh had actually caused the  injury to Sarwan Singh, it would be most unnatural  for Sarwan Singh, situated as he was in his litigation with  Ram Singh  and Bhagat Singh, to make such an allegation  against Garib  Singh.   This  inference was  far  more  natural  and reasonable  than that Garib Singh was falsely implicated  by all the witnesses simply to oblige Chanan Singh. An overall consideration of all the facts and  circumstances in  the  case,  the important features of  which  have  been noticed  by  us,  and  a reading of  the  Judgments  of  the Sessions  Judge as well as of the High Court have led us  to the  conclusion  that,  whatever  error  there  was  in  the approach  of  the learned Sessions Judge in  appraising  the worth of the prosecution and defence versions, was rectified by the High Court.  We are of opinion that those features of the  case to which the learned, Sessions Judge had  attached disproponate importance were put in their proper perspective by the High Court We, therefore, do not think that this is a fit case for 987 interference  by this Court in this appeal by special  leave with  the  view  of the High  Court  about  the  substantial truthfulness   of  the  prosecution  case  and   the   utter incredibility of the defence version. There  is, however, one essential aspect of the  case  which seems  to have escaped the attention of the High Court.   It is  that the whole pattern of the case indicates that  there was  very little likely hood of any pre-concert.   The  High Court  had  itself rejected the version that Ram  Singh  and Gurdial  Singh  had instigated and said  that  Sarwan  Singh should not be spared.  If this instigation was there and had been  acted upon Sarwan Singh would have received many  more injuries.  The nature of the injuries, proved by the medical evidence,  indicated unmistakably that the occurrence was  a short and sudden affair.  Such a short and sudden occurrence could  take  place  on the evening of  Diwali  at  a  chance meeting  when Sarwan Singh found Garib Singh in the  company of  his  adversaries,  Ram Singh and Bhagat  Singh.   It  is possible  that something was said to Garib Singh  either  by Sarwan  Singh  when  he found him in,  the  company  of  his adversaries, or, before that, by Ram Singh and Bhagat  Singh which  impelled Garib Singh to attack Sarwan Singh.,  These, however,  are  matters of  pure  conjecture.   Nevertheless, taking the totality of facts and circumstances  particularly the  nature of injuries, the Diwali night, and the place  of occurrente  on a public thoroughfare, into account,  we  are inclined  to  believe that the pattern of the case  was  not that of a pre-planned attack.

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There was some force in the submission, which was noticed by the  Sessions  Judge,  that a pre-planned  attack  was  more likely  to  have taken place elsewhere and not on  a  public thoroughfare  in  front  of the house  of  Ram  Singh.   The learned  Counsel for the appellant also submitted  that  Ram Singh and his associates were not likely to know the time at which.   Sarwan  Singh  would pass Ram  Singh’s  house  that evening.  The prosecution evidence is that Sarwan Singh  was going to untie his cattle.  It is possible that it was known in  the  village that Sarwan Singh passed the house  of  Ram Singh at that time every evening, but there was no  evidence led  to  show  that this was so  and  that,  therefore,  the accused  were  waiting for him to come.   Mere  carrying  of spears  which is not unusual for Sikhs, would not  establish pre-planning. A consideration of the above mentioned aspect, which was not discussed by the High Court, leads us to the conclusion that this  was not a case in which Section 34 Indian Penal  Code, for  which  there was not even a charge framed  against  the appellants,  could be applied so unhesitatingly as the  High Court  had  done.  It would have been possible to  apply  it even though no, charge was 988 framed for it if the evidence establishing it had been clear and free from doubt. We may also mention the two cases cited before us to contend that  the High Court should not have interfered at all  with the appraisal of evidence by the trial Court.  These were  : Khedu  Mohton & Ors. v. State of Bihar(1), and  Laxman  Kalu Nikalje v. The State of Maharashtra (2 ) . In Khedu Mohton’s case(3), an appellate court had set  aside the  conviction  of the accused persons on  certain  grounds including  that  the  four  eye  witnesses  of  the  alleged occurrence  were  unreliable because  they  were  interested persons.  The High Court had interfered with an acquittal by an appellate Court.  This Court had said, with regard to the conclusion reached in that particular case by the acquitting Judge :               "  Unless the conclusions reached by  him  are               palpably  wrong or based on erroneous view  of               the  law  or that his decision  is  likely  to               result  in  grave injustice,  the  High  Court               should  be  reluctant to  interfere  with  his               conclusions.   If two  reasonable  conclusions               can be reached on the basis of the evidence on               record  then  the  view  in  support  of   the               acquittal of the accused should be  preferred.               The  fact that the High Court is  inclined  to                             take  a  different  view of  the  evid ence  on               record is not sufficient to interfere with the               order of acquittal". We think that the present case is distinguishable from  that case  in as much as the approach of the Trial Court, in  the case before us, shows that it was misled by attaching  undue importance to individual features of the case which had been viewed in their correct perspective by the High Court.   The Trial  Court had ignored the very important fact that it  is contrary to the ordinary course of human nature for  injured persons, without showing strong grounds for it, to omit  the names  of  their actual assailants and to  substitute  wrong persons  in their places.  Implication of the innocent  with guilty  ones  is  more  easily  credible  than  a  wholesale substitution, out of enmity, of the innocent for the  actual assailants, Such quick substitution was not, for the reasons

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already  mentioned, conceivable in the present case.  As  we have  already indicated, the High Court, in the case  before us,  had  coffected  an error in the  approach  and  in  the reasoning  of  the  Sessions Judge  rather  than  upset  the findings  of  the  Sessions’ Judge  or  the  credibility  of witnessess at the trial.  The trial Court had not held  that the injured eye witnesses could not be believed.  It had not weighed evidence so much as given a catalogue of reasons for suspecting the prosecution case without considering what (1) [1971]  S.C.R. 839 @ 840-841. (2) [1968] (3) S.C.R. 685. 989 could be said in Answer.  Appraisement involves ,weighing of one  set  of  facts  or inferences  from  them  against  the opposite one fairly and reasonably. In  Laxman Kalu Nikalje’s case(1) it was laid down by  Court at page 688               "We  may say here that it is now  the  settled               law  that the powers of the High Court  in  an               appeal against the acquittal are not different               from  the powers of the same court in  hearing               an  appeal  against a  conviction.   The  High               Court  in dealing with such an appeal  can  go               into  all questions Of fact and law and  reach               its  own conclusions on evidence  provided  it               pays  due regard to the fact that  the  matter               had been before the Court of Sessions and  the               Sessions Judge had the chance and  opportunity               of  seeing the witnesses depose to the  facts.               Further  the  High  Court  in  reversing   the               judgment  of the Sessions Judge must  pay  due               regard  to  all  the  reasons  given  by   the               Sessions  Judge for disbelieving a  particular               witness  and  must  attempt  to  dispel  those               reasons  effectively before taking a  contrary               view  of the matter.  It may also  be  pointed               out that an accused starts with a  presumption               of innocence when lie is put up; for trial and               his   acquittal  in  no  sense  weakens   that               presumption,  and this presumption  must  also               receive  adequate consideration from the  High                             Court." We  think that the principles laid down above by this  Court were  applied  by the High Court in dealing  with  the  case before us.  It had not set aside, as already indicated,  the verdict of a Court of trial based upon the special advantage it derives from watching witnesses depose. As  we have already observed, we think that the  High  Court had  erred in applying Section 34 Indian Penal Code  to  the facts  and circumstances of the case before us.  As  we  are satisfied  that the occurrence which led to the  prosecution of  the appellants must have arisen out of a sudden  quarrel over some exchange of words in circumstances which have  not been brought out by the evidence in the case, we are  unable to hold the appellants guilty of any offence with the aid of Section 34 Indian Penal Code.  We, therefore, set aside  the convictions  and  sentences  of Garib  Singh  under  Section 324/34  and  323/34 Indian Penal Code but  we  maintain  his conviction   under   Section  307,  and,  in   the   special circumstances  of  this case, reduce his sentence  to  three years   rigorous  imprisonment  from  five  years   rigorous imprisonment.   We  also  set  aside  the  convictions   and sentences of the appellant Bhagat Singh under Section 307/34 and 324/34 Indian Penal (1) [1968] 2 S. C. R. 685.

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17-1061Sup Cl/72 990 Code,  but maintain his conviction under Section 323  indian Penal   Code   and  sentence  of   three   months   rigorous imprisonment  for that offence.  As regards  Mohinder  Singh appellant, a youngster who was bound to have been  misguided by the example of older people and against whom no  previous conviction is disclosed, while setting aside his  conviction and  sentence under Section 307/34 and 323/34  Indian  Penal Code,  we maintain his conviction under Section 324,  Indian Penal Code, but reduce his sentence under Section 324  India Penal Code to the period already undergone. This appeal is partly allowed to the extent indicated above. G.C.                          Appeal allowed in part. 991