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PETITIONER: SATBIR AND THE STATE OF HARYANA

       Vs.

RESPONDENT: SURAT SINGH & ORS.

DATE OF JUDGMENT:       12/02/1997

BENCH: M.K. MUKHERJEE, B. N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:                             WITH             CRIMINAL APPEAL NOS. 780-788 OF 1982                       J U D G M E N T M.K. MUKHERJEE, J.      These appeals  stem from an incident that took place in the morning  of June  20, 1984  in village  Misri, under the jurisdiction of Police Station Bondkalan, on the district of Bhiwani, in  which three  residents of  the village,  namely Prabhu, his son Bir Singh & Mir Singh and Suraj Bhan, one of their distant  relations, were  killed. Over  the incident a case was  registered by  the police  on a  report lodged  by Satbir Singh,  a  resident  of  the  same  village,  and  on completion of  investigation police  submitted  charge-sheet against thirteen  persons. As  one of them was a ‘child’ his case was separated for trial by the Children’s Court and the other twelve  were  arraigned  before  the  Sessions  Judge, Bhiwani pursuant  to  an  order  of  commitment  made  under Section 209  Cr. P.C.  Against nine  of them,  namely, Surat Singh, Dalwant  Singh, Dola  Ram, Subh Ram, Udey Ram, Suresh Kumar, Chhajju  Ram, Smt.  Chameli and  Smt. Giarsi, charges under Sections  148 and  302/149 IPC  were  framed.  Against Surat Singh and two others, namely, Ran Singh and Bishambhar a charge  of criminal conspiracy to commit the three murders was framed.  The remaining  accused, namely,  Dr.  Satyavart Arya, the  then doctor in charge of the local primary health centre, was  asked to answer charges under Sections 193, 218 and 466  IPC, which  were based  on the  allegations that to make out a defence of alibi in favour of Surat Singh he made false documents  to show that he (Surat Singh) was a patient in the health centre between the period from June 19 to June 21, 1984.  The trial  ended with  an order of conviction and sentence recorded  against them in respect of all the charge framed. While  six of  the nine  accused  persons  convicted under  Sections   302/149  IPC   were  sentenced  to  suffer imprisonment for life, the other three, namely, Surat Singh, Balwant Singh  and Dola Ram were sentenced to death. For the other convictions  different terms  of imprisonment and fine were imposed upon them. 2.   Aggrieved thereby  they preferred  appeals in  the High Court which  were heard  alongwith the reference made by the

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trial Judge  under Section  366 Cr. P.C. for confirmation of the sentence  of death.  By a common judgment the High Court allowed all  the appeals,  set aside the order of conviction and sentence recorded against the twelve accused persons and rejected the reference. The above judgment of the High Court is under  challenge in  these appeals: one of which has been filed by  Satbir, who  lodged the  F.I.R., and the others by the State  of Haryana.  During the pendency of these appeals Dr. Satyavart Arya died and therefore the appeals as against him abate. All the appeals have been heard together and this judgment will dispose of them. 3.   Briefly stated,  the  prosecution  case  is  that  land bearing Killa  No.31/17 in village Misri belonged to Partap, son of  Prabhu (the  deceased). After  death of  Pratap, his widow Surjit  sold it  to accused Surat Singh, Balwant Singh and Dola  Ram, who  are all sons of accused Chhajju Ram. The possession, however,  remained with  Prabhu and  he used  to cultivate it.  In the early morning of he fateful day Prabhu along with  Bir Singh  and Suraj  Bhan went  to  plough  the aforesaid land;  and at  or about 8 A.M. Raj Kumari (PW 10), grand-daughter of  Prabhu, came  to the field with meals for them. Soon  after her  arrival, Surat  Singh  armed  with  a jelli, Balwant  Singh with  a farsa, Dola Ram with a Kulhari and Krishan,  Subh Ram,  Udey Ram,  Suresh Kumar and Chhajju Ram with  lathis came  to the  field along with accused Smt. Chameli and  Smt. Giarsi.  While Chameli  was carrying a bag containing red  chilli powder  and stones  Biarsi was having some stones  in her hands. Reaching there Surat Singh raised a  Jalkara  that  they  would  exterminate  Prabhu  and  his companions as  they were  ploughing the  land  purchased  by them. To this Prabhu retorted that it was his ancestral land and he  was in  its possession  for long.  Hearing this Smt. Chameli took  out stones  and chilli powder from her bag and started throwing  the same  towards the three deceased. Smt. Giarsi also  threw stones  which she  was  carrying  in  her hands. All  the other  accused persons  then started beating the three deceased with their respective weapons as a result of which they fell down. Finding Satbir (P.W.7) and Harbilas (P.W.9) of  their village,  who had  by then  reached  there while in  search of  the missing  buffalo of the latter, and Raj Kumari (P.W.10) present there, the above accused persons asked them  to leave  the place;  and out  of fear they took shelter behind a cluster of bushes nearby wherefrom they saw that they  were  still  beating  the  three  deceased.  Soon thereafter  the   appellants  fled  away  along  with  their weapons. After  they had  gone, the  above  three  witnesses returned to  the place  of occurrence and found that all the three victims  had succumbed  to  their  injuries.  Harbilas (P.W.9) then  went to  their village  abadi and informed the Chowkidar who came to the spot. After deputing the Chowkidar to guard  the dead  bodies, Satbir  proceeded to  the Police Station to lodge a report. On the way he met ASI Dalip Singh (P.W. 24)  at the bus stand and reported the incident. Dalip Singh recorded his statement (Ext. PX) and, after forwarding the same  to the Police Station for registering a case, took up  investigation.   Dalip  Singh   went  to  the  place  of occurrence  accompanied   by  Satbir  and  prepared  inquest reports in respect of the three dead bodies which were lying there.  He  then  sent  the  dead  bodies  for  post  mortem examination. From  the spot  he seized  some  blood  stained earth and  chillies  and  made  them  into  separate  sealed parcels. 4.   The  autopsy  on  the  dead  body  of  Suraj  Bhan  was performed  by  Dr.  R.P.  Sharma  (P.W.3)  who  found  seven injuries on  his person,  out of  which three  were  incised

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wounds and  other four  lacerated. Dr.  R.A. Mittal (P.W. 4) performed autopsy  on the  body of Bir Singh and found eight lacerated wounds,  besides some  contusions  and  abrasions. Autopsy on  the dead  body of  Prabhu was  performed by  Dr. Suraj Bansal  (P.W. 5) and he found two incised wounds, some lacerated wounds and some abrasions and bruises. The doctors opined that  the injuries they found on the dead bodies were sufficient in  the ordinary course of nature to cause death. In course  of investigation  the police arrested the accused persons  and   pursuant  to  the  statements  made  by  them recovered some of the weapons allegedly used in the assault. 5.   The other  part of  the prosecution case is that on the day prior to the incident accused Surat Singh, Ram Singh and Bishambhar were  seen  together  and  heard  to  talk  about exterminating Prabhu. 6.   The accused  persons pleaded  not guilty to the charges levelled against  them and  contended  that  they  had  been falsely implicated  out of  enmity. Accused  Surat Singh and his brothers asserted that the land in question was in their possession on the date of the incident. 7.   In support  of their  respective cases  the prosecution examined twenty four witnesses and the defence one. 8.   The  learned   Courts  below   considered  the  medical evidence and  concluded that  the prosecution  succeeded  in proving that Prabhu, Bir Singh and Suraj Bhan were murdered. Since the  above concurrent  finding, being  based on proper appreciation of  evidence is  not to  be disturbed, the only question that  falls for  our consideration (consequent upon the death  of accused Satyavart) is whether the High Court’s findings that  the prosecution  failed to conclusively prove the involvement  of the  accused persons  in the murders and that the  evidence regarding  conspiracy was unreliable, are proper or not. 9.   Ordinarily this  Court does not interfere with an order of acquittal  recorded by  the High  Court; but  if the High Court arrives  at its  findings over looking important facts and relying  upon few  circumstances which do not in any way impair the  probative value  of the  evidence adduced during trial, this  Court would  be  failing  in  its  duty  to  do complete justice if it does not interfere with such order of acquittal.  Having   carefully  gone  through  the  impugned judgment in the light of the evidence on record we find that this case,  so far as it relates to the acquittal of some of the accused  persons of  the charges  of rioting and murder, calls for  such  interference.  As  regards  the  charge  of conspiracy however  we are  in complete  agreement with  the High Court  that the  evidence adduced by the prosecution in proof thereof does not inspire confidence. 10.  To  prove   the  charges  of  rioting  and  murder  the prosecution rested  its case  primarily upon the evidence of the three  eye witnesses,  namely, Satbir  (P.W.7), Harbilas (P.W.9) and  Raj Kumari  (P.W.10). All three of them gave an ocular version  of the  incident detailed earlier, including the roles  of the  nine accused  played in  the murders.  In dealing with  the testimony  of Raj  Kumari (P.W.10), who at the material  time was  aged about ten years, the High Court observed that it was hazardous to place reliance on the same for it  was not expected of her to go to the field at 8 A.M. with the  meals of Prabhu and Bir Singh. In making the above comment the  High Court  relied upon  the  evidence  of  the doctors who  found semi  digested food  in  their  stomachs. According to  the High Court, since they had, before leaving their house,  taken their meals, it was doubtful that P.W.10 would again  take meals for them at 8 A.M. for she admitted, the meals were to be eaten by them at noon. We have not been

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able to  appreciate the above steps of reasoning of the High Court. It is common knowledge that villagers go to cultivate their lands  in the  early morning  and therefore  there was nothing unusual  in P.W. 10’s carrying the meals at or about 8 A.M. for their consumption sometimes later. We cannot also lose sight  of the  fact that  it was the peak of the summer then and  therefore it  was not  unlikely that  to avoid the heat the family members of Prabhu and Bir Singh had sent the young girl  in the  morning so  that she  could return  home early. On  mere surmise  and conjecture  therefore the  High Court was  not justified  in discarding  her  evidence.  The other comment  the High  Court made  about her testimony was that as  she was  not a  resident of  the village  Misri and occasionally  came   there  she   was  not  expected  to  be acquainted with  the villagers. This comment is based on the fact that  she failed  to recognise  three  of  the  accused persons, namely,  Subh Ram, Udey Ram and Suresh Kumar in the test identification  parade that  was held  by a  Magistrate (D.W.1). This comment of the High Court is also not a proper one for,  out of  the above  three Udey Ram and Suresh Kumar were accused of conspiracy and not of rioting and murder, to which only  she was  a witness;  and when  she had failed to identify one  of the nine accused the benefit can go only to the person  not identified, namely Subh Ram, and not others. Having gone  through her  evidence  we  find  no  reason  to disbelieve her  more  so  when  we  find  that  nothing  was elicited in cross examination to discredit. 11.  So far  as the  other two  eye-witnesses are concerned, namely P.W.7  and P.W.9,  both of  them stated that they had reached the  place of  occurrence on  their way  to  village Sonf-Kasni to  search the  buffalo of  the latter  which was missing from  the morning.  The  High  Court  observed  that it was by  sheer chance  that the  buffalo of  Harbilas  got astray and  he along with Satbir happened to reach the place of occurrence  when the  accused persons  are said  to  have arrived and  perpetrated the  crime. According  to the  High Court one  does not  come across  such  coincidence  in  the ordinary course  of life and, therefore, it was difficult to believe their  claim about their presence at the time of the incident. The  only other  ground which  prompted  the  High Court to  disbelieve these two witnesses was that Satbir was related to  the deceased  and Harbilas belonged to the party of  the   deceased.  On   perusal  of   their  evidence  and correlating the  same with  that of  P.W.10 we find that the High Court  was not  at  all  justified  in  doubting  their presence at  the time  of the  incident. It  was elicited in their cross  examination that while in search of the buffalo they got  information that it had gone towards village Sonf- Kasni. It  was further  elicited that  the place  where  the incident took  place was on the route to village Sonf-Kasni. There was  nothing unusual  therefore in their being present at the  material time,  more so,  when there  is nothing  on record to disbelieve their statement that the buffalo of one of them,  namely, P.W.9  was missing since the morning. Even if we  were to accept the observation of the High Court that P.W.7 and  P.W.9 were  chance witnesses  still then we would not  have   been  justified   in  rejecting  their  evidence altogether on that score alone, for the evidence of a chance witness is not necessarily incredible or unbelievable but it only requires  cautious and  close scrutiny.  The High Court was also  wrong in  discarding the  testimony of P.W.7 as he was a  relation of deceased Suraj Bhan, for we find that the relationship is  of the  fifth degree and in a small village like the one to which P.W.7 and deceased Suraj Bhan belonged such relationship  ought not  to have  been made a ground to

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brand him  as an  interested witness. This apart, this Court has repeatedly  pointed out  that more relationship doe snot make the  evidence of  a witness  suspect  and  unworthy  of credit. Equally untenable is the High Court’s reasoning that Harbilas belonged to the party of the deceased as we find no evidence from which such a conclusion could have been drawn. However the  most eloquent  proof of  their presence  at the material time  has been furnished by P.W.10 who stated about their presence  and further stated that all of them left the site of  incident on  being threatened by the assailants and took shelter  behind a  bush, wherefrom they saw the further assault. 12.  The High  Court disbelieved the ocular evidence also on the ground  that medical  evidence contradicted it so far as assault on Bir Singh was concerned, in that, whereas the eye witnesses claimed  that balwant  Singh assaulted  Bir  Singh with a  pharsa a  sharp edged  weapon the  injuries that the doctor found  on his  body could  be caused by blunt weapons only. In  the facts  of the instant case this finding of the High Court is, in our view, wholly untenable. The High Court ought to have appreciated that in an incident where a number of persons  assaulted three persons at one and the same time with  different  weapons,  some  contradictions  as  to  who assaulted who  and with  what weapon,  were not unlikely and such contradictions could not be made a ground to reject the evidence of  eye-witnesses, if it was otherwise reliable. If in the  instant case  no incised wound, which is caused by a sharp edged  weapon, was  found on  the body  of any  of the victims it might have made the prosecution case suspect but, as earlier noticed, the other two victims had incised wounds on their persons. 13.  In disbelieving  the prosecution  case the  High  Court next observed  that there  was an  unusual  and  unexplained delay of  four and  half hours  in lodging the F.I.R. We are constrained to  say that  this finding  is without any basis whatsoever.  Evidence   on  record  proves  that  after  the incident was  over at  or about  8 A.M. P.W.7 stayed back to guard the  dead bodies while P.W.9 along with P.W.10 went to the village  abadi, which  was at a distance of 1. 1/2 kms., to inform the Chowkidar. After the Chowkidar came P.W.7 left for the  Police Station  and on the way he met P.W.14 at the bus stand,  which was also at a distance of 1. 1/2 kms. from the place  of incident,  and gave  the report  at 12.30 P.M. From the  above sequence of events it is obvious that before the information  was lodged  with the  police, Harbilas, the Chowkidar and  Satbir covered a distance of about 1.1/2 kms. each i.e.  a total  distance of  about 4.1/2  kms. Judged in that context  it must  be  said  that  there  was  no  delay whatsoever in  lodging the  F.I.R. On the contrary, the fact that  the   F.I.R.  with   the  entire   substratum  of  the prosecution  case  incorporated  therein,  was  lodged  with promptitude goes  a long way to corroborate the testimony of Satbir. The  High Court  also commented upon non-examination of the  Chowkidar but,  when P.W.7  gave information  to the police at  the earliest  opportunity his non-examination was not of much moment. 14.  The High  Court lastly  observed that  the  prosecution failed to prove the motive it alleged for the crimes and for that purpose  the High  Court referred  to the  claim of the respective parties regarding the land. Since the evidence of the three  eye-witnesses  along  with  the  F.I.R.  and  the medical evidence proves the rioting and murders the question of  motive   pales  into   insignificances.  We   need  not, therefore, dilate on the question whether the finding of the High Court  in this  regard is  proper or  not. For the self

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same reasons  we need  not discuss  the other circumstantial evidence led by the prosecution in support of its case. 15.  Coming now  to the  individual  roles  of  the  accused persons in  the rioting and murders we find that P.Ws. 7 and 9 named  all the  nine accused  persons as  the  miscreants. P.W.10 also  named all  of them  but had  earlier failed  to identify accused  Subh Ram  in the  T.I. Prade. Such failure however does  not affect  the prosecution case in any way in view of  the evidence of the other two eye witnesses. Though there is  no reason to disbelieve the testimonies of the eye witnesses particularly  P.Ws.7 and  9  regarding  individual roles of  the accused persons in the above offences, we feel the accused  Udey Ram  and Suresh  Kumar are entitled to the benefit of  reasonable doubt as then names do not find place in the  F.I.R. Accused Smt. Chameli and Smt. Giarsi are also entitled to  a similar  benefit for  it cannot  be said with certainty that,  though  present,  they  shared  the  common object of  committing the  murders. So far as the other five accused namely,  Surat Singh,  Balwant Singh, Dola Ram, Subh Ram  and   Chhajju  are   concerned,  the  evidence  clearly establishes  that  they  committed  rioting  and  in  course thereof committed  the three  murders. The  trial Court  was therefore fully  justified in convicting them under Sections 148 and 302/149 IPC. 16.  On the conclusions as above, we uphold the acquittal of Surat Singh,  Bishambhar and  Ran Singh  of the charge under Section 120 B IPC and of Smt. Chameli, Smt. Giarsi, Udey Ram and Suresh  Kumar of  the charges  under  Sections  148  and 302/149 IPC,  but set  aside the  acquittal of  Surat Singh, Balwant Singh, Dola Ram, Subh Ram and Chhajju under Sections 148 and  302/149 IPC and convict them of the above offences. Considering the  fact that since the offences were committed more than  10 years  have elapsed we do not feel inclined to restore the  sentence of  death imposed  upon  Surat  Singh, Balwant Singh  and Dola Ram by the trial Court. we therefore sentence all  the  above  five  accused  persons  to  suffer imprisonment  for  life  each  for  their  conviction  under Section 302/149  IPC. For their conviction under Section 148 IPC we  however do  not pass  any separate  sentence. Of the above eleven  accused persons,  who are  all on  bail, Surat Singh, Balwant  Singh, Dola  Ram, Subh Ram and Chhajju shall now surrender  to their  bail bonds to serve out he sentence now imposed  on them  and  the  remaining  six  shall  stand discharged from their respective bail bonds.