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CASE NO.: Appeal (crl.)  829 of 1996

PETITIONER: State of Punjab                                                  

RESPONDENT: Vs. Karnail Singh                                                    

DATE OF JUDGMENT: 14/08/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

State of Punjab is in appeal questioning the legality of judgment  rendered by the Punjab and Haryana High Court directing acquittal of  the respondents Karnail Singh and Nirmal Singh.  Learned Sessions  Judge, Jalandhar, had found both the accused persons to be guilty of  offence punishable under Section 302 of Indian Penal Code, 1860 (for  short ’IPC’). Life sentence was imposed on each, with fine of  Rs.1,000/-. Additionally, accused Karnail Singh was convicted for  offences punishable under Section 307 read with Section 34 IPC while  accused Nirmal Singh was convicted for offences punishable under  Section 307 IPC.  Each of them was sentenced to undergo rigorous  imprisonment for five years and to pay a fine of Rs.500/- each.  During  pendency of appeal before this Court, accused-appellant Nirmal Singh  expired. Since no application in terms of Section 394 of the Code of  Criminal Procedure, 1973 (for short ’the Cr.P.C.’) has been filed, the  appeal abates so far he is concerned.

In a nutshell the prosecution version is as follows:

Gurdial Singh @ Kala (hereinafter referred as ’the deceased’) had  five brothers, namely, Piara Singh, Swaran Singh, Charan Singh, Dev  Singh and Kewal Singh.  Piara Singh and the deceased used to reside in  a Dera in their fields, where they had installed a tubewell.  Accused  Karnail Singh and Nirmal Singh belong to their village.  They also used  to reside in a Dera close to the Dera of Piara Singh and deceased. As  deceased was having illicit relationship with Sito, wife of accused  Karnail Singh, there was enmity between the accused persons and the  deceased.  On 26.1.92 in the night Piara Singh and deceased were taking  rest at the Dera after taking meals.  Their brother Swaran Singh also  came there in order to irrigate his fields by using their tubewell. At  about 11.00 p.m., Swaran Singh asked deceased to have a round and to  check up if the fields were properly irrigated.  Deceased went out to  check up the fields. After some time, Piara Singh and Swaran Singh  (PWs. 1 and 2 respectively) heard the cry for help made by the  deceased.  Immediately they went out and saw both accused persons armed  with weapons dragging the deceased towards their Dera. At that time  there was an electric bulb lighting their Dera.  When they tried to  help the deceased, Nirmal Singh fired at the deceased with his gun, as  a result of which he fell down on the ground while accused Karnail  Singh was assaulting the deceased with the Kirpan. When Piara Singh (PW  1) raised alarm pleading that the deceased should not be assaulted, the  accused persons threatened them.  Being frightened they ran away to

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their village. On the following morning, they told about the incident  to Gurdip Singh, Sarpanch. They went to the place of occurrence, and  found the headless body of the deceased with injury on the right side  of the chest lying in the field near the Dera of accused Karnail Singh.   They searched for the head of the deceased and found the same lying in  the tubewell at the Dera of accused Karnal Singh.  Piara Singh left  Swaran Singh (PW 2) and Kewal Singh to guard the dead body and lodged  the information at the police station.  Investigation was undertaken  and on completion charge sheet was placed.  Accused persons pleaded  innocence and false implication.

Learned Trial Judge found the prosecution version to be credible  and placing reliance on the evidence of PWs. 1 and 2 convicted the  accused persons and sentenced them as above stated. The judgment of  conviction and sentence was assailed before the High Court.  Main  challenge before the High Court was that there was unexplained delay in  lodging the FIR and dispatch of the same to the concerned Magistrate.   It was also submitted that the conduct of the witnesses who were  brothers of the deceased was unusual and instead of coming to his  rescue they claimed to have fled away. The five brothers of the  deceased did not take any step in the night and remained content. They  informed the Sarpanch on the next day, and though they claimed to have  told the Lambardar in the night itself, there was no evidence adduced  during trial to that effect.  Accepting the contentions of the accused  the High Court directed acquittal as aforenoted. The High Court also  noted that the presence of PWs 1 and 2 was extremely doubtful and a  false case after due deliberation was cooked up and FIR was prepared at  about 2.00 p.m. and that being the position, the accused persons were  entitled to acquittal.

In support of the appeal learned counsel for the appellant-State  submitted that the time of occurrence was around 11.00 p.m. The FIR was  lodged next day around 9.35 a.m. First the information was given at the  police chowk around 8.00 a.m., and the FIR was registered at the Police  Station at about 9.35 a.m.  The FIR reached the Magistrate around 3.00  p.m. Undisputedly the police chowk was at a distance of 3 kilometers  from the place of occurrence, while the police station was at a  distance of 7 kilometers, and the distance of the court from the police  station was 10 kilometers.  Considering the distance there was no  reason to discard the prosecution version.  Further the conclusion of  the High Court that there was unusual conduct in not informing the  police or co-villagers at the night does not appear to be correct.   Factual position as noted by the Trial Court is that that area was a  terrorist infected area and terrorism was at its peak during the  period. The post-mortem was conducted at 3.15 p.m.  There was no  explanation as to how the dead body was found in the field of the  accused Karnail Singh and the severed head was found near his tubewell.  Acting on mere surmises, credible prosecution evidence has been  discarded.   

Per contra, learned counsel for the accused Karnail Singh  submitted that the prosecution has failed to establish its accusations,  and the High Court has noted the infirmities in details and no  interference is called for considering the limited scope of  interference in an appeal against acquittal. The PWs 1 and 2 are close  relatives of the deceased and, therefore, their evidence should not  have been acted upon.  Their evidence is also not consistent with  regard to motive for the crime.   

There is no embargo on the appellate Court reviewing the evidence  upon which an order of acquittal is based.  Generally, the order of  acquittal shall not be interfered with because the presumption of  innocence of the accused is further strengthened by acquittal.  The  golden thread which runs through the web of administration of justice  in criminal cases is that if two views are possible on the evidence

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adduced in the case, one pointing to the guilt of the accused and the  other to his innocence, the view which is favourable to the accused  should be adopted. The paramount consideration of the Court is to  ensure that miscarriage of justice is prevented. A miscarriage of  justice which may arise from acquittal of the guilty is no less than  from the conviction of an innocent. In a case where admissible evidence  is ignored, a duty is cast upon the appellate Court to re-appreciate  the evidence even where the accused has been acquitted, for the purpose  of ascertaining as to whether any of the accused committed any offence  or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (JT 2002  (3) SC 387)]. The principle to be followed by appellate Court  considering the appeal against the judgment of acquittal is to  interfere only when there are compelling and substantial reasons for  doing so.  If the impugned judgment is clearly unreasonable, it is a  compelling reason for interference. These aspects were highlighted by  this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra  (1973 (2) SCC 193), Ramesh Babulal Doshi v. State of Gujarat (1996 (9)  SCC 225) and  Jaswant Singh v. State of Haryana (JT 2000 (4) SC 114).

On consideration of the rival submission, we are of the view that  the High Court is not justified in directing acquittal of the accused  persons.  It proceeded on an erroneous impression that the FIR was  lodged at 2.00 p.m. after deliberations and discussions. No material  has been indicted for coming to this conclusion. On the contrary,  evidence on record clearly shows that the information was lodged at  8.00 a.m. at the police chowk, and the FIR was registered at the police  station at 9.35 a.m. and it reached the Magistrate at 3.00 p.m.  It is  baffling as to how and on what material High Court came to the  conclusion that the FIR came into existence at 2.00 p.m.  Additionally  considering the distance between the place of occurrence, police chowk,  police station and the court of the Magistrate, it cannot be said that  there was any unexplained delay so far as registration of FIR and  dispatch to the Magistrate are concerned.  Merely because the  information was not lodged at the police chowk or the police station in  the night, that cannot be a suspicious circumstance in view of the  factual position noted by the Trial Court.  From the evidence it is  clear that the area was a terrorist infected area and terrorism was its  peak during the period.  These factors weighed with the Trial Court,  and in our opinion rightly.  The High Court did not attach any  importance to this vital factor, and came to presumptuous conclusions.   It is to be noted that there was no dispute by the accused regarding  the presence of the dead body and the severed head in the field and in  the tubewell of accused Karnail Singh.  Though the prosecution has to  lead evidence to substantiate its accusations, if factors within the  special knowledge of the accused are not satisfactorily explained it is  a factor against the accused.  No explanation was given by the accused  during examination under Section 313 of the Code except making bold  denial. Though this factor by itself cannot be sufficient to fasten the  guilt of the accused, while considering the totality of the  circumstances this is certainly a relevant factor. The evidence of PWs  1 and 2 is clearly cogent and without even properly analyzing their  evidence the High Court came to the conclusion that their presence was  doubtful.

We may also observe that the ground that the witnesses being  close relatives and consequently being partisan witnesses, should not  be relied upon, has no substance.  This theory was repelled by this  Court as early as in Dalip Singh and Ors.  v. The State of Punjab (AIR  1953 SC 364) in which surprise was expressed over the impression which  prevailed in the minds of the Members of the Bar that relatives were  not independent witnesses. Speaking through Vivian Bose, J. it was  observed:  

"We are unable to agree with the learned Judges of  the High Court that the testimony of the two

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eyewitnesses requires corroboration.  If the  foundation for such an observation is based on the  fact that the witnesses are women and that the fate  of seven men hangs on their testimony, we know of no  such rule.  If it is grounded on the reason that they  are closely related to the deceased we are unable to  concur.  This is a fallacy common to many criminal  cases and one which another Bench of this Court  endeavoured to dispel in â\200\223 ’Rameshwar v. State of  Rajasthan’ (AIR 1952 SC 54 at p.59). We find,  however, that it unfortunately still persists, if not  in the judgments of the Courts, at any rate in the  arguments of counsel."

       Again in Masalti and Ors.  v.  The State of U.P. (AIR 1965 SC  202) this Court observed: (p. 209-210 para 14):

"But it would, we think, be unreasonable to contend  that evidence given by witnesses should be discarded  only on the ground that it is evidence of partisan or  interested witnesses....... The mechanical rejection  of such evidence on the sole ground that it is  partisan would invariably lead to failure of justice.   No hard and fast rule can be laid down as to how much  evidence should be appreciated.  Judicial approach  has to be cautious in dealing with such evidence; but  the plea that such evidence should be rejected  because it is partisan cannot be accepted as  correct."

       To the same effect is the decision in State of Punjab v. Jagir  Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC  76). As observed by this Court in State of Rajasthan v. Smt. Kalki and  Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those  which are due to normal errors of observation, normal errors of memory  due to lapse of time, due to mental disposition such as shock and  horror at the time of occurrence and those are always there, however,  honest and truthful a witness may be. Material discrepancies are those  which are not normal, and not expected of a normal person. Courts have  to label the category to which a discrepancy may be categorized. While  normal discrepancies do not corrode the credibility of a party’s case,  material discrepancies do so. These aspects were highlighted in Krishna  Mochi and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186).

       Merely because one of the witnesses stated that he was unaware of  the illicit relationship, that does not in any way dilute the  evidentiary value of the evidence of other witnesses who have spoken  about it.

       Exaggerated devotion to the rule of benefit of doubt must not  nurture fanciful doubts or lingering suspicion and thereby destroy  social defence.  Justice cannot be made sterile on the plea that it is  better to let hundred guilty escape than punish an innocent.  Letting  guilty escape is not doing justice according to law. [See: Gurbachan  Singh v. Satpal Singh and Others [AIR 1990 SC 209].  Prosecution is not  required to meet any and every hypothesis put forward by the accused.  [See State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A  reasonable doubt is not an imaginary, trivial or merely possible doubt,  but a fair doubt based upon reason and common sense. It must grow out  of the evidence in the case. If a case is proved perfectly, it is  argued that it is artificial; if a case has some flaws inevitable  because human beings are prone to err, it is argued that it is too  imperfect. One wonders whether in the meticulous hypersensitivity to

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eliminate a rare innocent from being punished, many guilty persons must  be allowed to escape. Proof beyond reasonable doubt is a guideline, not  a fetish. [See Inder Singh and Anr. v. State (Delhi Admn.) (AIR 1978 SC  1091)]. Vague hunches cannot take place of judicial evaluation. "A  judge does not preside over a criminal trial, merely to see that no  innocent man is punished. A judge also presides to see that a guilty  man does not escape. Both are public duties." (Per Viscount Simon in  Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in  State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called  reasonable if they are free from a zest for abstract speculation. Law  cannot afford any favourite other than truth. (See: Shivaji Sahebrao  Bobade & Anr. v. State of Maharashtra (1974 (1) SCR 489), State of U.P.   v. Krishna Gopal and Anr. (AIR 1988 SC 2154), and Gangadhar Behera and  Ors. v. State of Orissa (2002 (7) Supreme 276).                    Keeping in view the legal principles and the factual scenario in  our view the inevitable conclusion is that the High Court was not  justified in directing acquittal of the accused persons.  Accordingly  the judgment of the High Court is set aside and that of the Trial Court  restored.

       Accused Karnail Singh is directed to surrender to custody to  serve the balance of the imprisonment as ordered by the Trial Court.   The appeal is allowed.