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PETITIONER: HARAPAL SINGH

       Vs.

RESPONDENT: DEVINDER SING & ANOTHERWITHCRIMINAL APEAL NO. 549 OF 1988HAR

DATE OF JUDGMENT:       09/07/1997

BENCH: M. K. MUKHERJEE, K. T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS, J.      This case  reflects  the  bizarre  offshoot  of  unholy campus politicisation  culminating in  the premature  end of Jasbir Singh  a student  who   reached final  year in  M.  A (Economics). The  venue of  the murderous  onslaught as  the precinct  of   Nar  Hari   Hostel  attached  to  Kurukshetra university in  Haryana and  the time was lunch recess on 23- 10-1986. Jasbir  Singh was stabbed to death while his fellow student Sumer  singh received  grievous hurt. Twelve persons including some  student leaders  of the rival wing were sent up for  trial before  the Designated Court of Kurukshetra as the  charge   included  Section   6  of  the  Terrorist  and Disruptive Activities(Prevention)  Act, 1987 (for short "the TADA’) But all of them were acquitted by the trial Judge and these appeals have been filed under Section 19 of the TADA.      The backdrop  disquieting  from  the  angle  of  campus discipline, was  the college students’ union election on the lines of  political party  loyalties of  the students. Himat (9th accused)  was a  candidate  for  presidentship  of  the students union  and he  was opposed  by Jasbir  Singh, being head of  the rival students wing owing allegiance to another political party. Himat won the election, but its fallout was the acrimonious tension which persisted for long between two rival student  wings in  the campus. Skirmishes erupted as a daily occurrence  between them  and police  had to  register criminal cases  against offending  students. On the previous day of occurrence in this case the victorious group made all efforts to  get  their  budget  proposals  approved  by  the general body  but such  efforts were  thwarted by  the stiff resistance offered  by jasbir  Singh and his followers. This became the  immediate cause  for  the  aggravated  hostility between the  group led  by Himat  and the rival group led by Jasbir singh.      What happened  during  the  occurrence  in  this  case, according to  the prosecution  version, was  this, At  about 1,30 p.m.  Jasbir Singh  and Harpal  Singh  (PW-3)  who  was studying in the first semester of M.A.(English)- and Randeep Rana (who  was the  Secretary of the students Union to which Jasbir Singh  belonged were  standing outside the canteen of

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Nar Hari  hostel. Suddenly Himat (A-9) caught hold of Jasbir Singh and  then Satparkash (A-6) slapped a knife blow on the left chest  of Jasbir  singh which  was followed  by  Satbir Singh (A-1)  inflicting another  knife blow on the left side of his chest. When Sumer Singh (PW-6) intervened, presumably to rescue  his colleague,  he was prevented from nearing the victim by  Jeevan Singh  (A-8) and Sandhip Singh (A-10). But right at a that time Devinder Singh (A-5) gave a stab injury on Sumer  Singh  on  his  front  costal  margin.  The  other assailants also attacked the deceased with iron rods, clubs, and hockey sticks etc.      Jasbir Singh  breathed his  last very  soon. but  Sumer Singh did  not die as he was operated upon emergently at the post Graduate  Institute of  Medical  Education,  Chandigarh which saved his life.      The  case   was  registered  on  the  strength  of  the statement furnished by Harpal singh (PW-3). Sumer Singh, the injured, was  examined as  PW-6 and no other eye witness was examined. The  trial court  pointed out certain anomalies in the evidence of Harpal Singh and declined to believe that he had witnessed the occurrence. What remained was the evidence of Sumer  Singh.  Since  he  was  one  the  injured  in  the occurrence and  was loyal to the opposite students wing, the trial judge found his evidence insufficient for establishing the guilt against the accused. Accordingly, he acquitted all the accused.      while hearing  the appeals,  learned  counsel  for  the accused  reminded  us  of  the  oft  repeated  caution  that acquittals should  not lightly  e disturbed  in appeals.  We have bestowed  our  consideration  on  the  facts  of  these appeals keeping the aforesaid rule of caution.      Post-mortem examination conducted on the body of Jasbir Singh revealed  that out of 11 ante mortem injuries found by the doctor,  one was  a spindle  shaped incised  wound which pierced the  sternum and  cut the pericardium and perforated the left  atrium. Besides  that he  had three  other incised injuries on  the chest  though none  of  them  was  grievous enough to cause his death. However, the injury which pierced his heart would have ended his life.      The injury  which the doctors found on Sumer Singh (PW- 6)   was  an  incised  wound  on  the  costal  margin  which perforated his  liver. Dr.  Pradeep Kumar (PW-5) of the Post Graduate  Institute   of  Medical   Education,   Chandigarh, performed a  laparotomy and  sutured the liver. PW-5 said in court that  Sumer Singh  would have  died if  the  emergency operation was not performed in time.      It is  therefore, fairly  clear that  both jasbir Singh and Sumer  Singh sustained serious stab injuries. When Sumer Singh was  examined as a witness to the occurrence, he stuck to the  prosecution version  set forth  earlier. PW-3 Harpal Singh on  whose statement  the case  was registered has also narrated the prosecution version with all vivid details.      There can  be little  doubt that  PW-6 Sumer  Singh had witnessed the  occurrence. But  the drawback of his evidence is  that   he  belonged  to  the  students  wing  which  was admittedly rival  to the  accused students.  Though that  by itself is not enough to tarnish his testimony, it is a sound rule in  appreciation of  evidence that  if the testimony of such a witness is to be used as the sole basis of conviction it should  be of  such a calibre as to be regarded as wholly reliable. The blemish attached to PW-6 as a partisan witness stands in  the way  of his evidence becoming wholly reliable and  hence   without   adequate   reassurance   from   other circumstances or  materials it  may not  be safe to make the uncorroborated evidence of such a witness the sole basis for

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reversing the order of acquittal.      If the  presence  of  Harpal  Singh  at  the  place  of occurrence can be believed as a certainty his evidence would then become  capable of corroborating the testimony of Sumer Singh. They, when put together, would for, a sturdy basis to make the  prosecution version  worthy of  acceptance.  so  a scrutiny of  the evidence  of Harpal  Singh  is  of  crucial importance in this case.      Harpal Singh  (PW-3), at the time he gave evidence, was a  law   graduate,  though   he  was   only  a   student  of M.A.(English) when  the occurrence  took  place.  He  was  a resident of  the  hostel  in  the  precincts  of  which  the incident happened,  as observed above. it is he who gave the first information  statement to  the police in which also he claimed to have seen the occurrence and in which he narrated the incident  with all  details. He  was one  of  those  who helped the  injured persons  to reach  the hospital  at  the earliest point  of time. Normally, these broad circumstances would ensure  that he   would ensure that he would certainly have seen the occurrence.      But the trial court which declined to place reliance on him noted  some flaws in his testimony; One such flaw is the failure of  the police to collect the clothes worn by Harpal Singh which  were  smeared  with  blood  during  the  rescue operation. We are unable to appreciate the said approach. If the clothes  worn by  the injured  or the  victims were  not recovered by  the investigating team that perhaps would have provided a  handle to  the defence to attack the prosecution case. But  no investigating  agency would  normally take the trouble to  seize the  clothes worn by witnesses at the time they saw the occurrence merely because their clothes too had collected stains  of blood during any post event activities. At  any   rate  the   said  omission  on  the  part  of  the investigating agency  is not  a flaw  of that type to invite the consequence of jettisoning his testimony.      Another  reason   which  the  trial  judge  highlighted against PW-3  (Harpal Singh)  was the   delay  in  recording first information  statement. According  to the trial court, as the  occurrence happened  at 1.30  p.m. and  as the  Sub- Inspector of  police received  intimation at  2.45 p.m.  and that injured Sumer Singh was admitted in the Civil Hospital, Kurukshetra, the  Sub-inspector should  have rushed  to  the hospital and recorded the statement of Sumer Singh. The fact cannot be  overloaded that  Sumer Singh  who was admitted in the  Civil   Hospital  in   a  very  serious  condition  was emergently shifted to the post-Graduate institute of Medical Education Chandigarh 3.50 p.m and that the sub-Inspector who reached the  civil Hospital  had to collect the statement of Harpal Singh  at 4.50  p.m. For Sumer Singh and his kith and kin as  also for the doctors, the life of Sumer Singh was of prime value  and that  every effort  should be taken to save it. The  trial judge  seems to have taken a pedantic view in this matter.      The trial  court then  harped upon  the need for speedy despatch of  the FIR  to the  magistrate. Since  four hours’ time had  elapsed as between making the FIR and its reaching the hands  of the  magistrate, the trial judge felt that the FIR would  have been  completely cooked  up and  he observed that Harpal  Singh would  not have  seen the occurrence. The said conclusion  based on  the above reasoning is apparently fragite. Trial  court  should  not  have  adopted  a  renown approach regarding the delay in lodging the fir. Even if the residence of the Chief Judicial Magistrate was close by, the fact that  the FIR  was lodged with him within four hours is not ignorable.  No doubt  the ideal situation is that FIR is

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lodged with  utmost speed  and despatch  but if the ideal is not adhered to in any case, the corollary is not castigation of the  evidence of the maker of the FIR. In the present set up no  police station  can be expected to have only one case to look  into. A  little delay  in lodging  the FIR with the magistrate should not be viewed from an unrealistic angle.      Another reason  advanced by  the  trial  court  against evidence of Harpal Singh is that when he was interrogated by the investigating Officer subsequently, he gave more details regarding the  occurrence. Firstly,  the said  supplementary statement recorded  by the  Investigating officer could only have been  used to  contradict the  witness in  view of  the interdict contained  in Section  162 of the Code of Criminal Procedure, Secondly,  that  statement  cannot  be  used  for comparing it  with the FIR. That apart, if the Investigating Officer elicited  more details  from the  same person during any subsequent  interrogation how  could his evidence become suspect? It  is not  advisable to  throw the evidence of the informant overboard merely because the investigating Officer succeeded  in  eliciting  further  details  or  even  fuller details during subsequent interrogation.      We have  noticed that  the trial  judge has  omitted to refer to  a very  important item  of evidence  while dealing with the  testimony of  Harpal Singh.  it is the evidence of Surinder  Singh   (PW-7)  who  was  a  research  scholar  in Kurukshetra University.  The substance  of what PW-7 said in court is  this: when  he was  proceeding to  Nar Hari hostel during lunch  recess, he  saw Harpal  Singh and Randeep Rana helping the  injured persons to get into a rickshaw and then PW-7 also helped them to reach the hospital soon. On the way to the  hospital,  Harpal  Singh  gave  an  account  of  the occurrence to PW-7.      The cross  examiner did  not challenge that part of the evidence of  PW-7 that  Harpal Singh gave a narration of the occurrence to  PW-7 on  their way  to the hospital. There is thus reassurance  regarding the fact that Harpal singh was a witness to  the occurrence. There is absolutely no reason to doubt the  testimony of  PW-7    nor  has  the  trial  court castigated his  testimony in  any manner.  PW-7,  therefore, gives us  the confidence  to believe  that Harpal  Singh has witnessed the occurrence.      If so,  what Harpal singh (PW-3) told the police in the First information Statement must be the fresh account of the true facts.  if he has seen the occurrence, we see no reason of him to substitute some innocent persons as assailants.      The position  now is  this :  The testimony  of  summer singh stands fully corroborated by the other eye witness pw- 3 Harpal singh.      Learned counsel  for the accused in this context argued that non  examination of  Randeep Rana,  who  has  seen  the occurrence,  has   seriously  impaired   the  core   of  the prosecution case.  No doubt, it would have been desirable if Randeep Rana was also examined by the prosecution in court . But his  non examination  in this  case did  not  cause  any ripple affecting the case.      A public  Prosecutor may give up witnesses during trial to avert  proliferation of  evidence which  could save  much time of the court unless examination of such a witness would achieve some  material use.  Randeep Rana, if examined would only have  helped in  duplication of  the same  category  of evidence  as   the  other  two  eye  witnesses.  The  Public prosecutor, therefore,  cannot be  blamed for  adopting  the course of  not examining  him. If  the accused  thought that Randeep Rana’s  evidence would help the defence, it was open to the accused to examine him as a defence witness.

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    In Darya  Singh &  others vs. State of Punjab. Air 1965 sc 328, a Bench of three Judges (Gajendragadkar, Wanchoo and Dasgupta, jj)  has observed  that  in  murder  cases  it  is primarily for  the prosecutor  to decide  which  witness  he should examine  in order  to unfold the prosecution story. " If a  large number of persons have witnesses the incident it would be  open to  prosecutor to  make a  selection of those witnesses,  but  the  selection  must  be  made  fairly  and honestly and  not with  a view to suppress inconvenient from the witness  box." The  same view  has been  followed  in  a number of cases [ vide Masalti vs. State of U.P. AIR 1965 SC 202, by a Bench of four Judges (Gajendragadkar, CJ, Wanchoo, Dasgupta and  Raghubar Dayal, JJ); Gurmej Singh & others vs. State Punjab,  AIR 1992  SC 214, by a bench of three Judges; Rai Saheb & others vs. State Of Haryana, 1994 SCC (Crl) 239; Rajbir vs.  State of  Haryana, 1996  SCC (Crl.)  178  Girish Yadav &  others vs.  state of  M.P. 1976  SCC(Crl.) 552; Ram Sanjiwan Singh  & others  vs state of Bihar, 1996 SCC (Crl.) 701 Malkan  Singh &  others vs  state of U.P 1995 SCC (Crl.) 893]      No doubt  Randeep  Rana  would  have  been  a  material witness. But  merely because  he was  not  examined  by  the prosecution a  criminal court  is no to lean to draw adverse inference that  if he  was examined  he would  have given  a contrary version. The illustration (g) in section 114 of the Evidence  Act  is  only  a  permissible  inference  and  not necessary inference.  Unless there  are other  circumstances also to  facilitate the  drawing of an adverse inference, it should not  be a  mechanical process  to  draw  the  adverse inference merely  on the  strength of  non-examination of  a witness even  if it is a material witness. We do not see any justification, in  this case,  in drawing  such  an  adverse inference due  to non  examination of  randeep  Rana.  [vide state of Karnataka vs. Moin Patel, 1996 SCC (CRL.) 632]      The  aforesaid   discussion  leads   to  the  following conclusions:      A-9 made  a clarion  call to  his companions  to attack jasbir Singh  and  thereupon  A-9  and  A-7  inflicted  stab injuries on  the chest  of the  deceased. A-5  has inflicted grievous hurt  on the  costal margin of Sumer Singh. A-1 and A-6 have  acted conjointly  with the   common  intention  to murder Jasbir singh.      A-5 cannot  be convicted  of anything more than causing grievous hurt to PW-6. The exhortation made by A-9 would, no doubt, amount  to facilitation  of   the crime. but we think that in  the circumstances it was probable that he would not have intended causing more harm than grievous hurt to jasbir Singh. In  such a  situation, we are not inclined to convict A-9 of the offence under Section 302 read with Section 34 of the IPC.   but  we unhesitatingly hold that he has committed the offence  under Section  326 read  with Section 34 of the IPC.      Before parting with the case, we feel strongly to add a few   more words  which  are  of    contextual  and  topical importance. It  is a  malady in  our country  that political parties allure  young students  through their student wings. They do  so because  it is  an  easy  method  for  enlisting support and  participation of  student population  to  their political programmes.  Students, particularly  in adolescent age, are  easily swayable  by political parties without much effort or  cost as young and tender minds are susceptible to easy persuasiveness  by party  leaders. But  the  disturbing aspect is  that most  of the  political leaders  do not mind their student  supporters developing hostility towards their fellow students  belonging to  rival political  wings.  What

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happened in  this case  perhaps was  only the  tip   of  the iceberg as  campus rivalry  has now deteriorated into a bane of the  Country. The print media is now replete with reports of such calamitous instances in the campus atmosphere.      While at  the top  layer leaders belonging to different political parties  dine together  and  socialise  with  each other without  any personal  acrimony as between themselves, it is  a pity  that  they  do  not  encourage  that  healthy attitude to  percolate down  to the grass root level. Tender mind gets  galvanised on minor issues, frenzy flares up even on trivialities,  young children  and adolescents unaware of the  disastrous  consequences  befalling  their  own  future indulge in vandalism, mayhem and killing spree against their own fellow students.      We think  that the  time is  now ripe  for  legislative interference  to   salvage  the  campus  free  of  political activities. We  leave it  to the members of legislatures and leaders  of  the  country  to  ponder  over  this  with  the seriousness  it   deserves  and  to  bring  forth  necessary measures to plug it.      We therefore,  allow these  appeals and  set aside  the order of  acquittal as  against A-1,  A-5, A-6  and A-9.  We convict A-1  and A-6  under Section 302 read with Section 34 of the  IPC and  sentence each  to imprisonment for life. We convict A-5 under Section 326 of the IPC and sentence him to rigorous imprisonment  for five  years. We  also convict A-9 under Section  326 read  with Section  34  of  the  IPC  and sentence him  to rigorous  imprisonment for  five years. The acquittal  as   for  the   remaining  accused   would  stand undisturbed. Sessions judge is directed to take steps to put the above convicted persons in jail to undergo the sentence.