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PETITIONER: PIARA SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT04/10/1977

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. FAZALALI, SYED MURTAZA UNTWALIA, N.L. KAILASAM, P.S.

CITATION:  1977 AIR 2274            1978 SCR  (1) 597  1977 SCC  (4) 452  CITATOR INFO :  R          1985 SC  48  (15)

ACT: Evidence-Evidentiary   value  of  interested   or   inimical witnesses, explained. Evidence  Act (Act 1 of 1872), 1872, S. 45  Expert  opinion- When there are two conflicting medical opinions, the opinion of  that expert which supports the direct evidence  must  be accepted. Confession-Extra-judicial confession-Whether the evidence of an  extra--Judicial  confession  should, in  all  cases,  be corroborated.

HEADNOTE: The  four appellants were charged u/s. 302 r/w. section  34, I.P.C.  for  the offence of murder of one  Surjit  Singh,  a collateral  of the accused on the evening of 14th  November, 1967; but were acquitted by the Sessions Judge, Amritsar, on the  ground that the ocular evidence of the three  witnesses (P.   Ws  3,  5  and  7) who spoke  to  the  fact  that  the appellants inflicted the injury on the deceased with Kirpan, Gandasi,  Barchhi and I also with a bullet from the  rifle, was  inconsistent  with the medical evidence  of  the  court witness No. 1, Dr. Paramjit Singh to the effect that  injury No.  11  could  not have been caused  by  a  fire-arm.   The opinion  of Dr. Jatinder Singh who performed the  postmortem in  the  case was that the gun shot injury with a  wound  of entry  and  exit  on the left buttock  which  was  found  in addition   to  the  14  incised  injuries  including   seven punctured  wounds could be caused by a fire arm including  a rifle.  The High court, on appeal by the State, against the Acquittal,  accepted  the prosecution case,  set  aside  the acquittal, convicted Piara Singh and Gian Singh U/S. 302, 1. P. C., Kashmir Singh and Joginder Singh u/s. 302/34 1. P. C. and sentenced them to imprisonment for life. Dismissing   the  appeal  u/s.  2  of  the   Supreme   Court Enlargement  of Criminal Appellate Jurisdiction,  1970,  the Court. HELD  :  (1)  Taking  an  overall  view  of  the  facts  and circumstances in the present case, the High Court was  fully

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justified in reversing the order of acquittal passed by  the learned  Sessions  Judge.   There  is  sufficient   evidence against  the accused to prove the charge of  murder  against them.    The   evidence  of  the  eye-witnesses   is   fully corroborated  by the medical evidence, the evidence  of  the recoveries,  the  evidence of the Ballistic expert  and  the evidence  of  P. W. Balbir Singh who deposed  regarding  the extra  judicial confession made by the accused Piara  Singh. [599 F, 603 D-EG] (2) The evidence if intersted or inimical witnesses is to be scrutinised  with care but cannot be rejected merely on  the ground  of  being a partisan evidence.  If on a  perusal  of evidence the court is satisfied that the evidence is credit- worthy  there  is  no bar, in the  court  relying  the  said evidence. In  the  instant  case, though P. W.s 3, 5 and  6  were  the relations  of  the  deceased and bore  animus  against  the. accused  they were, the natural witnesses as the  occurrence had  taken place near the door of the house of the  deceased and  they, were, in fact sitting in the courtyard  when  the occurrence  took place.  The evidence of P.W. 7 to whom  the whole occurrence was narrated immediately after the  accused left  the  house, the extra judicial confession  of  Kashmir Singh to P. W. 17, the recovery of the blood-stained  Kirpan from  the sugarcane field of Meja Singh and the recovery  of the  empty  cartridge  from the place  of  occurrence  fully corroborate their evidence. [599G, 600A-C, D] (3)  The evidence of a medical man or an expert is merely an opinion which lends corroboration to the direct evidence  in the  case.  Where there is a glaring  inconsistency  between direct evidence and the medical evidence in respect of 598 the  entire  prosecution  story,  there  is  undoubtedly   a manifest defect in the prosecution case.  Where there it  a conflict  between  the opinion of two experts,  the  courts should  normally  accept the evidence of  the  expert  whose evidence  is  corroborated by direct evidence of  the  case, which according to the court is reliable.  Where the opinion of  a  medical witness is contradicted  by  another  medical witness,  both  of  whom are equally competent  to  form  an opinion, the opinion of that expert should be accepted which supports the direct evidence in the case. In the instant case (a) the trial court was not justified in throwing out the prosecution case merely on the basis of the evidence  of Dr. Paramjit Singh.  It was not a case  of  the evidence  being totally inconsistent with the  medical  evi- dence but a case where there was some doubt as to whether or not injury No. 11 was caused by a rifle; (b) the evidence of Dr. Jatinder Singh corroborated, as it is by the evidence of the  eye-witnesses,  the  evidence of the  recovery  of  the bullet,  the  evidence  of  the  Ballistic  expert  and  the evidence given by P. W 17, Balbir Singh regarding the  extra judicial  confession made before him must be accepted.   Dr. Jatinder  Singh had the initial advantage of  examining  the deceased  and  holding  his post-mortem  and  observing  the nature  of  the injuries on the body of the  deceased.   His opinion is, therefore, based on first hand knowledge and  be in  any event preferable to Dr. Paramjit Singh who  did  not have the advantage of seeing the deceased or the injuries on his body but deposed purely on the basis of the  description of the injuries given by Dr. Jatinder Singh. [600 B-H  601E, FG-602B-C] (4)  Law  does  not require that the evidence  of  an  extra judicial confession should,   in all cases, be corroborated. In the instant case the extra judicial confession was proved

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by an independent witness who was a responsible officer  and who  bore  no  animus against the  appellant.   The  learned Sessions Judge committed a clear error of law by refusing to rely   on  the  extra  judicial  confession  when   it   was corroborated  by the recovery of an empty from the place  of occurrence. [603F-G]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION Criminal Appeal No. 221  of 1972. From  the Judgment and Order dated 31-7-1972 of  the  Punjab and Haryana High Court in Criminal Appeal ’No. 364 of 1969. R. L. Kohli and B. P. Singh for the Appellants. Hardev Singh and R. S. Sodhi for the Respondent, The Judgment of the Court was delivered by FAZAL  ALI,  J.-This appeal under section 2 of  the  Supreme Court  Enlargement of Criminal Appellate  Jurisdiction  Act, 1970  is  directed  against an order of the  High  Court  of Punjab  and  Haryana  dated,31st July,  1972  by  which  the appellants  Piara  Singh and Gian Singh had  been  convicted under  section  302  Indian  Final  Code  and  sentenced  to imprisonment for life and Kashmir Sing and Joginder.   Singh were  convicted under sections 302/34 Indian Penal Code  and sentenced’  to imprisonment for life.  The  appellants  were tried  under the aforesaid sections by the  Sessions  Judge, Amritsar  who however acquitted them of the  charges  framed against  them.  On appeal to the High Court by the State  of Punjab  the High Court was of the view that the jndgment  of the learned Sessions Judge was absolutely wrong and the High Court  reversed  the  judgment of  the  Sessions  Judge  and convicted the appellants as indicated above. 599 Both  the Courts below have given a complete and  exhaustive narration  of the details of the prosecution case and it  is not necessary for us to repeat the same all over again.  The present occurrence has resulted in the death of Surjit Singh a collateral of the accused and appears to be a result of  a long standing enmity between the parties.  Suffice it to say that on 14th November, 1967 at about 4.00 p.m. the  deceased Surjit  Singh had arrived at his house with a cart  load  of maize  cobs  from  the  side of his  field.   At  that  time Harbhajan  Singh, a ,cousin of the deceased and  his  mother Kesar Kaur and two other relations, namely, Chanan Kaur  and Mango were sitting inside the courtyard of their house 6  to 7  yards  from  the door of his house  the  four  appellants entered the house of Piara Singh variously armed and pounced upon the deceased and assaulted him with Kirpan, Gandasi and Barchhi and also with a bullet from the rifle.  According to the prosecution, Piara Singh was armed with a rifle, fired a rifle  shot  at the deceased on his groins as  a  result  of which  he  fell down and died soon after.   On  hearing  the alarm  Kundan  Singh,  Gurbux Singh  and  Surat  Singh  then arrived  at the spot who were apprised of the occurrence  by Harbhajan  Singh  and  other  members  of  the  family  also narrated  the  entire  incident to  them.   The  complainant Harbhajan  Singh  rushed  to  the  Police  Station,  Valtoha situated  at about 4 miles from the place of the  occurrence and  lodged the F. I. R. at 4-30 p.m. giving  the  necessary details of the incident.  The dead body of the deceased  was taken to the hospital which was lying near the Manawan Canal when  the  Sub-Inspector  came  and sent  the  same  to  the mortuary  for  postmortem  examination.   After  the   usual investigation  a  charge-sheet  was  submitted  against  the

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appellants  as a result of which they were committed to  the court  of  Sessions,  tried and  finally  acquitted  by  the learned  Trial Judge, We have heard counsel for the  parties at great length and have also gone through the evidence  and the  judgments  of  the  two courts.   The  High  Court  has discussed  the  evidence  in great detail and  it  has  also indicated clearly the important circumstances relied upon by the learned Sessions Judge in acquitting.the appellants  and has  sought  to displace them by giving,  in  ’our  opinion, cogent reasons.  We are clearly of the opinion that the High Court  was right in reversing the order of acquittal  passed by the learned Sessions Judge who had made a wrong  approach to  the whole case.  This was not a case in which two  views were  reasonably  possible.  The, judgment of  the  Sessions Judge is legally erroneous and is also against the weight of the evidence on the record. As  the  High Court has given detailed reasons  for  setting aside  the order of acquittal passed by the Sessions  Judge, it  is not necessary for us to discuss the matter in  great detail. The central evidence against the appellants consisted of the three  eye-witneses, namely, P.W. 3 Harbhajan Singh, P.W.  5 Chanan Kaur Kaur and P. W. 6 Kesar Kaur.  It is true  that-. the three witnesses were relations of the deceased and  bore animus against the accused but as the occurrence had  taken place  near  the  door of the house of  the  deceased  these persons were the natural witnesses and were in fact  sitting in  the court-Yard when the occurrence took place.  It  may be  difficult  to  get witnesses from the  village  when  an assault of the type. suddenly takes 600 place in the house of the deceased.  It is well settled that the  evidence of interested or inimical witnesses is  to  be scrutinised  with care but cannot be rejected merely on  the ground of being a partisan evidence.  If on a perusal of the evidence  the  Court  is  satisfied  that  the  evidence  is creditworthy  there  is no bar in the Court relying  on  the said  evidence.   The High Court was fully  alive  to  these principles and has in fact found that the evidence of  these three  witnesses has a ring of truth.  After having  perused the  evidence  ourselves also we fully agree with  the  view taken  by  the High Court.  In fact,  the  learned  Sessions Judge  has not made any attempt to dwell into the  intrinsic merits  of the evidence of these witnesses but has  rejected them  mainly  on general grounds most of  which  are  either unsupportable in law or based on speculation.  The  evidence of  the  eye-witnesses is sought to be corroborated  by  the evidence  of  P.  W.  7  Kundan  Singh  to  whom  the  whole occurrence  was narrated immediately after the accused  left the house.  There is also the evidence of Balbir Singh P. W. 17,  who  is a Sarpanch of the village  and  an  independent witness  and who proves that the appellant Piara  Singh  had made  an  extra judicial confession before him in  which  he admitted  to  have  committed. the murder  of  the  deceased Surjit  Singh along with his companions Kashmir Singh,  Gian Singh and Joginder Singh.  This witness also as that Kashmir Singh  on  being narrated by the details made  a  disclosure which resulted in the recovery of the Kirpan from the sugar- cane  field  of  Meja  Singh for which  a  search  list  was prepared and the Kirpan was also   found stained with  human blood.   According  to the Investigating  Officer  an  empty cartridge was also found at the spot and he sent the same to the  Ballistic  Expert along with the rifle  recovered  from Piara Singh who was a constable in the Border Security Force and  the  Ballistic-Expert found that the empty  could  have

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been  shot from the rifle in question.  These  circumstances fully  corroborate  thee  evidence  of  the   eye-witnesses. Finally, there is the medical evidence of Dr. Jatinder Singh who  performed the postmortem examination (in  the  deceased and  he  found as many as 7 incised wounds  on  the  various parts  of the body of the deceased and 7  incised  punctured wounds  on some vital parts of the body.  Apart  from  these injuries  the deceased had also sustained a gun shot  injury with  a wound of entry and exit on the left  buttock,  which according to Dr. Jatinder Singh could be; caused by a  fire- arm including a rifle.  The Doctor further deposed that  the contusions  and abrasions were caused by a blunt weapon  and the  other  incised wounds were caused by  a  sharp  cutting instrument like the Gandasa.  Another Doctor was examined by the Sessions Judge as Court Witness No. 1 who on seeing  the post-mortem  report  of Dr. Jatinder Singh was of  the  view that Injury No. 11 could not have been caused by a rifle and much  capital  was made by the accused but of  the  evidence given by Dr. Paramjit Singh. The  learned Sessions Judge appears to have disbelieved  the prosecution  case  mainly  on the  ground  that  the  ocular evidence was inconsistent with the medical evidence in that, according to the evidence of Dr. Paramjit Singh.  Injury No. 1  1  could hot have been caused by a fire arm.   In  giving this   finding   the  learned  Sessions   Judge   completely overlooked  the fact that a substantial number  of  injuries being  incised and punctured wounds were fully supported  by Dr. Jatinder Singh and 601 not  contradicted  by  Dr.  Paramjit  Singh.   It  was   not therefore a case of the evidence being totally  inconsistent with  the medical evidence but a case where there  was  some doubt  as to whether or not Injury No. 1 1 was caused  by  a rifle.  Here also two experts were examined one of whom  had undoubtedly supported the prosecution case and categorically stated that Injury No. 11 could have been caused by a rifle. Injury No. 11 is described in the evidence of Dr. thus :               "Irregular wound with inverted margin 2" x  1-               3/4"  was on the left middle  inguinal  region               with  counter wound 4" x 3" on the  back  left               buttock crease.  Fractured femur and lacerated               muscles  were seen at the depth of the  wound.               Further direction showed injury to the femoral               vessels of the leg".  The  nature,  position and content of this  injury  clearly shows  that it was a fire-arm injury which could  have  been inflicted  by  a rifle.  There was a wound on  entrance  and another on exit which could be only possible if the deceased was injured by a bullet.  There is the positive ,evidence of P.Ws.  3, 5 and 6 that Piara Singh had shot the rifle  which hit the deceased.  The bullet was found at the spot and  the rifle which was recovered from the possession of Piara Singh was  sent  to  the  Ballistic Expert  within  a  very  short interval.  The Ballistic Expert was of the opinion that  the empty  found  could  be discharged from  the  rifle  of  the appellant Piara Singh.  These circumstances therefore  speak volumes  in  support of the prosecution case.   The  learned Sessions Judge has completely overlooked the effect of these circumstances  in relying on the testimony of  Dr.  Paramjit Singh alone.  It is well settled that the positive  evidence in  the case is that of the eye-witnesses who had  seen  and narrated  the entire occurrence.  The evidence of a  medical man or an expert is merely an opinion which lends corrobora- tion  to the direct evidence in the case.  Where there is  a glaring  inconsistency  between  direct  evidence  and   the

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medical evidence in respect of the entire prosecution story, that  is undoubtedly a manifest ,defect in  the  prosecution case.   This however is not the position here.  There is  no inconsistency  between the direct and the medical  evidence. What has happened is that two experts, namely, Dr.  Jatinder Singh and  Dr.  Paramjit  Singh  had  differed  in   their opinions.  The High Court rightly observed that in view,  of difference  of opinion between the two experts the  evidence of  Dr. Jatinder Singh must be preferred as it is  supported by the evidence of the eye-witnesses whose evidence is  both reliable  and  trust-worthy and is also supported  by  other circumstances proved in the case.  It seems to us that where there  is a conflict between the opinion of two experts  the Court  should  normally accept the evidence of  the  expert who,  evidence is corroborated by direct evidence  of  the case which according to the court is reliable-.  In the case of The Queen v. Ahmed Aly & Ors.(1) a Division Bench of the Calcutta  High  Court  in  a  some-what  similar   situation observed as follows               "Dr.  Duncan may have given his evidence  like               an  intelligent man, but it is not the  proper               way to try on mere theories               (1)   1 1 Sutherland Weekly Reporter  Criminal               25.               60 2               of  medical men, or skilled witnesses  of  any               sort against facts positively proved".               "The  evidence  of  a medical  man,  or  other               skilled  witness, however eminent, as to  what               he  thinks  may, or may not have  taken  place               under    a    particular    combination     of               circumstances,  however  confidently  he   may               speak,  is ordinarily a more fallible.   Human               knowledge is limited and imperfect". We   find   ourselves  in  complete   agreement   with   the observations,  made  by  the  Calcutta  High  Court  in  the aforesaid case and hold that where the opinion of a  medical witness  is contradicted by another medical witness both  of whom are equally competent to form an opinion the opinion of that  expert  should be accepted which supports  the  direct evidence in the case.  ’Apart from this, in the instant case it appears that Dr. Jatinder Singh had the initial advantage of  examining  the deceased and holding his  postmortem  and observing  the  nature of the injuries on the  body  of  the deceased.   His  opinion is therefore based  on  first  hand knowledge  and  would  be in any  event  preferable  to  Dr. Paramjit Singh who did not have the advantage of seeing  the deceased  or the injuries on his body but deposed purely  on the  basis of the description of the injuries given  by  Dr. Jatinder  Singh.  For all these reasons therefore  we  would prefer the evidence of Dr. Jatinder Singh to the evidence of Dr. Paramjit Singh. It  is  true that the High Court has relied on a  number  of books  on medical jurisprudence to support the  evidence  of Dr.  Jatinder Singh.  We feel that it was not necessary  for the  High Court to do so unless the books were put  to  the, expert.   Recitals in the books do not provide a  sufficient guide to determine the truth or falsity of the testimony  of an  expert.   Having regard to the facts  and  circumstances indicated  above  we  are clearly of the  opinion  that  the evidence of Dr. Jatinder Singh corroborated as it is by  the evidence of the eye-witnesses, the evidence of the  recovery of the bullet, the evidence of the ballistic Expert and  the evidence  given  by P.W. Balbir Singh  regarding  the  extra judicial  confession made before him must be accepted.   The

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trial Court was therefore not justified in throwing out  the prosecution case merely on the basis of the evidence of  Dr. Paramjit Singh. Another ground on which the learned Sessions Judge sought to falsify  the  prosecution  evidence  was  that  whereas  Dr. Jatinder  Singh has found that there were some  injuries  on the  person  of the deceased which were caused  by  a  blunt weapon  the  witnesses  have not at  all  ’stated  in  their evidence  as  to how these injuries were caused to  the  de- ceased.   The High Court, in our opinion, has given  a  very convincing  explanation for this omission.  The  High  Court has  explained  that there was the direct evidence  to  show that one of the appellants, namely, Joginder Singh was armed with  a  gandasa and the deceased was assaulted by  all  the four persons even after be had fallen on the ground.  It  is quite possible that Joginder Singh might have assaulted  the deceased  from  the  blunt  portion  of  the  gandasa  which explains the simple injuries on the person of the  deceased. In  view of the evidence of Dr. Jatinder Singh there can  be no doubt that the deceased had contusions and abrasions.  It is also proved that the deceased had 603 been assaulted by the appellants and by no others.  In these circumstances therefore the irresistible inference would  be that  the  deceased must have been assaulted by one  of  the appellants  by  a blunt portion of the  gandasa.   This  was therefore not a good ground in law on the basis of which the Sessions  Judge could have rejected the prosecution case  or held that the evidence of the eye-witnesses was falsified. Another  circumstance  relied upon by the  learned  Sessions Judge  was  that  according  to the  evidence  of  the  eye- witnesses  the  deceased  died 25 to 30  minutes  after  the occurrence  whereas  according to the Doctor he  would  have died within 4 to 5 minutes after the assault.  This  appears to  be very trivial circumstance and is of  no  consequence. Two  of  the eye-witnesses were ladies and the other  was  a villager.   They did not have any watches with them  and  if they gave      ceased it was purely by guess. The  villagers hadno idea of time.    Moreover,  the villagers  were  not medical experts soas to know as to    when   the    actual death of the deceased took place.Even though the     deceased may have died after 5 or 10 minutes the.witnesses   may have  taken him to be alive for another 1 0 or  20  minutes. This is hardly a circumstance which would go to falsify  the evidence of the eyewitnesses and the trial Court was not  at all  justified in throwing out the prosecution case on  this ground.   There  are other circumstances  mentioned  by  the learned  Sessions Judge which do not appear to  be  material and  which  are based mainly on speculation  and  have  been rightly displaced by the High Court. Thus taking an over-all view of the picture presented by the prosecution  case we find that there is sufficient  evidence against  the accused to prove the charge of  murder  against them.    The   evidence  of  the   eyewitnesses   is   fully corroborated  by the medical evidence, the evidence  of  the recoveries,  the  evidence of the Ballistic expert  and  the evidence  of  P. W. Balbir Singh who deposed  regarding  the extra  judicial confession made by the accused Piara  Singh. The  learned  Sessions  Judge regarded  the  extra  judicial confession  to  be a very weak type  of  evidence  therefore refused  to  rely on the same.  Here  the  learned  Sessions Judge committed a clear error of law.  Law does not  require that the evidence of an extra judicial confession should  in all  cases be corroborated.  In the instant case, the  extra judicial confession was proved by an independent witness who

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was a responsible officer and who bore no animus against the appellants.   There  was hardly any  justification  for  the Sessions  Judge to disbelieve the evidence of  Balbir  Singh particularly   when  the  extra  judicial   confession   was corroborated  by the recovery of an empty from the place  of occurrence. On  a  careful  consideration therefore  of  the  facts  and circumstances  in the present case we are of the  view  that the High Court was fully justified in reversing the order of acquittal pasted by the learned Sessions Judge and this  was certainly not a case in which it could be said that the view taken by the learned Sessions Judge was reasonably possible. We  find  no  merit  in  this  appeal  which  fails  and  it accordingly dismissed. S. R.              Appeal dismissed. 2-951SCI/77 604