REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.753 OF 2008

Sucha Singh … Appellant

Versus

State of Punjab … Respondent

J U D G M E N T

S.B. Sinha, J.

1. This appeal is directed against a judgment and order dated 24.5.2007  

passed by a Division Bench of the High Court of Punjab and Haryana at  

Chandigarh in Criminal No.809 DBA of 1997 allowing an appeal preferred  

by the respondent herein from a judgment of acquittal passed by the learned  

Sessions Judge.

2. The prosecution’s case is as under:

At about 8.00 pm on 16.2.1991, one Gurdev Chand (PW4), his brother  

Sheru (PW5), aged 11 years and another brother Sakander (the deceased)  

aged about 13 years had gone outside the village to answer the call of nature.  

Appellant  who  is  said  to  have  been  armed  with  ‘datar’  along  with  one  

Manga came on their way.  Whereas Manga is said to have raised a ‘lalkara’  

that the complainant be taught a lesson for selling adulterated liquor with  

water, Sucha Singh gave a ‘datar’ blow on the deceased.  Allegedly, Manga  

gave a ‘datar’ blow on Sheru (PW5).  On their raising cries, Bhindi, younger  

brother of the first claimant, came on the spot, whereafter the accused ran  

away  with  their  weapons.   The  deceased  was  removed to  civil  hospital,  

Pathankot where he died.

3. A  first  information  report  was  lodged  at  about  12.05  noon  on  

17.2.1991.   

4. Before the learned Trial Judge, inter alia, Gurdev Chand (PW4) and  

Sheru (PW5) were examined to prove the prosecution’s case.  The learned  

Trial Judge noticed that although a charge under Section 307 of the Indian  

Penal Code (IPC) had been framed against Manga, but the first informant, in  

his supplementary statement had accepted that Manga was empty handed.  It  

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was  on  the  aforementioned  premise  that  the  appellant  by  reason  of  

amendment of the charge had been charged under Section 302 and 307 of  

the IPC whereas Manga was charged under Section 302/34 and 307/34 of  

the IPC.

The learned Trial Judge recorded a judgment of acquittal, inter alia,  

on the following findings:

1) The difference between the statement in the first information report  

and  the  supplementary  statement  was  very  vital.   The  allegations  

against Manga had been withdrawn only upon noticing that his right  

hand being amputated, he was not in a position to inflict any injury.

2) Statement of Gurdev Chand was held not to be  trustworthy keeping in  

view the change in his stand also in regard to the sequence of events.  

Whereas in his first statement, he stated that Sakandar had first been  

attacked by Sucha Singh, in his supplementary statement, he alleged  

that Sheru had been the first victim whereafter Sakandar ran away.  

He was chased for a sufficient distance and an injury was inflicted on  

his body with a ‘datar’.

3) The omission in the first information report that Sheru was taken to a  

civil  hospital  before  the  first  information  was  lodged  was  only  to  

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explain the delay in lodging the first information report although such  

an allegation had not been made in the first information report.

4) Whereas in his first statement, Gurdev Chand alleged that Sheru had  

been inflicted only with one a single injury by Manga, but later he  

stated that three-four injuries had been inflicted on his person whereas  

in the medical report only a single injury was found on the person of  

both the deceased and Sheru.

5) There  were  contradictions  in  the  matter  of  lodging  of  the  first  

information  report  as  it  was  said  to  have  been  lodged  by  Gurdev  

Chand after riding on a cycle for 12 kms. and the police met him at  

Jugial.  He had stated that on his way back, the cycle had been kept in  

police vehicle while according to Inspector Amrik Singh (PW7), the  

cycle had been kept in a shop at Jugial.   

6) The  first  information  report  was  found  to  be  ante-timed  even  the  

blood was not found on the spot.   

7) The evidence of the child witnesses was not corroborated.

8) The prosecution had not been able to prove any motive on the part of  

the accused.

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5. The High Court, on an appeal preferred by the State against the said  

judgment opined :

i) The maxim  falsus in uno,  falsus  in  omnibus should not  have been  

applied by the Trial Court as discrepancies in testimonies can occur  

due  to  error  of  observations,  error  of  memory  or  due  to  mental  

disposition such as shock and horror at the time of occurrence.

ii) Delay in lodging of the first information cannot be a ground to doubt  

the correctness of the prosecution case.

iii) Motive  to  commit  an  offence  is  immaterial  where  reliable  direct  

evidence is available.

iv) Keeping in view the nature of the evidence brought on record, clause  

thirdly to Section 300 of the IPC would be applicable.

v) The evidence of the child witness had not been tutored and, thus, no  

corroboration thereof was required.

The High Court, on the aforementioned findings, while upholding the  

judgment of acquittal passed in favour of Manga, convicted the appellant  

under Section 302 of the IPC.   

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6. The question which arises for consideration is as to whether the High  

Court  committed  an  error  in  interfering  with  the  judgment  of  acquittal  

passed by the learned Sessions Judge.   

7. The story advanced by the prosecution starts with a motive on the part  

of the complainant’s mother selling of illicit liquor.  In the first information  

report, it was alleged by the first informant that his mother brought illicit  

liquor and sold it to maintain her children.  In his evidence, however, he  

stated that his mother sold only two bottles of liquor occasionally.   

If the brothers had nothing to do with the sale of liquor, as has rightly  

been pointed by the learned Sessions Judge, that motive must  be held to  

have not been proved.   

We may notice that PW5, however, categorically denied and disputed  

that his mother sold any liquor or she earned her livelihood by doing liquor  

work.   

8. At this stage, we may also notice the injuries alleged to have sustained  

by Sheru which according to Doctor Vijay Mahajan (PW2) were as under :

“1. An  incised  wound  10  x  1.5  cm  running  horizontally  along  the  lower  border  of  lowest  mandible  on  left  side  going  posteriorly  to  the  post  auricular  area  and  

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anteriorly  over  the  chin.   The  underlying  bone  was  cut  partially.   Anteriorly  the  wound bifurcated into two parts and went to  the  sub  mandibular  area.   Fresh  bleeding  was  present  and  x-ray  examination  was  advised.

2. An incised wound 3 x ½ cm on the posterior  surface  of  left  ear  pinna  running  horizontally.  It was cartilage deep and fresh  bleeding was present.  

3. An  incised  wound  3  cm,  linear  skin  deep  running  horizontally  over  the  front  of  left  neck.   

4. An  incised  wound  5  x  0.5  cm bone  deep  running into transverse direction on the top  of right shoulder joint.  Fresh bleeding was  present.  There was corresponding cut in the  shirt and sweater X-ray was advised.

5. An abrasion 3 x 2 cm on front of right knee  joint.”

Post mortem report, conducted by Dr. R.K. Khanna, (PW1), read as  

under :  

“1) An  incised  16  cm  x  8  cm  x  6  cm  deep  wound obliquely placed over the right side of the  neck,  extending  from  the  nape  upwards  to  the  tragus  of  right  pinna  with  through  and  through  cutting of right external pinna at its centre into two  equal  halves.   Dissection  revealed  injury  to  subcutaneous  tissues,  muscles  and  bone  in  the  mastoid region and 1st and 2nd vertebral bodies on  its right side going obliquely upwards to the brain  matter at the base of skull.  The intervening bones  

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were  sharply  cut  into  pieces.   Brain  matter  was  oozing  out  of  the  wound  after  tearing  the  basal  meanings.   The  intervening  blood  vessels  and  nerves were also cut.

In  his  opinion,  the  cause  of  death was injury to  vital  organ, i.e.  brain and spinal cord which was  sufficient to cause death in the ordinary course of  nature.   The  injury  was  ante  mortem  in  nature  having been caused by sharp-edged cutting heavy  weapon.”

9. There is some discrepancies with regard to time of occurrence of the  

incident also.  Whereas according to PW4, the assailants of his brothers were  

identified in a torchlight, PW5 stated that they had identified the accused in  

the  daylight  and  not  under  the  torchlight.   Even  PW4,  in  his  evidence,  

admitted that he did not have any torch in his possession and, therefore, he  

did not see the accused under the torchlight which was introduced for the  

first time in his supplementary evidence.  We may notice that in the first  

information, it  is  stated, he produced a torch containing three cells.   The  

same has neither been seized nor produced.  

He  furthermore  denied  that  Manga  had  given  any  ‘lalkara’.   He  

furthermore accepted that Manga’s right arm was amputated.

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It is also of some significance to note that the place of occurrence is at  

a distance of about one km from their house.  No evidence has been brought  

on record as to how the parties are known to each other.   

There is, therefore, significant contradiction in the matter of number  

of injuries, time of occurrence, place of occurrence, sequence of events, the  

manner of identification of the accused, lack of motive and false implication  

of  Manga.   P.W.  4  made  vital  contradictions  in  his  FIR  vis-à-vis  the  

supplementary statement evidently keeping in view the physical condition of  

Manga.  It is, therefore, difficult to rely upon his testimony.   

PW4 in his deposition furthermore denied to have made a statement  

before the police that Sucha Singh had given a ‘datar’ blow on Sakandar on  

his neck.

10. PW4, in his evidence, even could not deny that Manga is an employee  

in a private company and he remains at his place of work from morning till  

evening.  

11. For the reasons aforementioned, the impugned judgment of the High  

Court  cannot be sustained which is  set  aside accordingly and that  of the  

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learned Sessions Judge is restored.  Appellant is in custody.  He would be set  

at liberty forthwith unless wanted in connection with any other case.

12. The appeal is allowed accordingly.

……………….…..………….J. [S.B. Sinha]

..………………..……………J.  [Dr. Mukundakam Sharma]

NEW DELHI; MAY 13, 2009

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