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CASE NO.: Appeal (crl.)  1015 of 2002

PETITIONER: Sucha Singh and Anr.                                             

RESPONDENT: Vs. State of Punjab                                                  

DATE OF JUDGMENT: 31/07/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NO. 1014 OF 2002

ARIJIT PASAYAT,J

       Since these two appeals are inter-linked and a common  judgment of Punjab and Haryana High Court at Chandigarh is  the subject matter of challenge, they are taken up together  for disposal.

       Nearly two decades ago, Surjit Singh (hereinafter  referred to as the ’deceased’) lost his life. Three  appellants along with two others were stated to be  responsible for his homicidal death.          The litigious history starts from 4.2.1986 and has seen  one round of litigation before this Court. By the impugned  judgment, the three appellants have been found guilty of  offence punishable under Section 302 read with Section 34 of  the Indian Penal Code, 1860 (for short the ’IPC’), and  Section 201 IPC. They were each sentenced to undergo  imprisonment for life and fine of Rs.5,000/- with default  stipulation of one year RI for the former and one and a half  years RI and fine of Rs.500/- with default stipulation of 3  months RI for the later.   

       Allegations giving birth to the prosecution are  essentially as follows:

       On 4.2.1986 at about 9.30 a.m. Lakhvinder Singh (PW9),  his brother Sukhvinder Singh and a relative Pritam Singh  (PW10) were returning from their fields. When they reached  turning of the street near the house of one Rattan Singh,  deceased-Surjit Singh met them on his way towards fields.  Suddenly, they found the accused appellants Satnam Singh,  Sucha Singh and Rachpal Singh who were armed with various  deadly weapons, and Gurdip Singh and Rattan Singh (who were  acquitted by the High Court) surrounded the deceased. Rattan  Singh raised a ’lalkara’ saying that the deceased should be  taught a lesson for not vacating a plot. Gurdip Singh made a  similar lalkara. All the accused persons surrounded the  deceased and Sucha Singh gave two gandasa blows which hit  the deceased on the temple on the right side and on the neck

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below the right ear and the deceased fell down. Satnam Singh  gave kirpan blows on the nose below the chin on the right  cheek on his right deltoid and on his left hand. He also  thrust the kirpan on his back. Rachpal Singh gave datar  blows on his head and neck. The deceased breathed his last  at the spot. Thereafter, all the accused persons brought the  dead body of the deceased to the house of Rattan Singh and  raised a lalkara that they would see if anybody would come  to take the dead body. These macabre acts were witnessed by  Lakhvinder Singh (PW9) and Pritam Singh (PW10).   

       Report was lodged in the police station by Lakhvinder  Singh (PW9). Because of hostility between the parties,  earlier security proceedings were initiated under Sections  107/151 of the Code of Criminal Procedure, 1973 (in short  the ’Cr.P.C.’). Investigation was undertaken and on  completion thereof, charge sheet was filed. The accused  appellants along with two acquitted accused persons were   tried for alleged commission of offence punishable under  Sections 302, 148, 149 and 201 of IPC.  It is to be noted  that the post mortem was conducted on 4.2.1986 by Dr. R.P.  Maingi (PW2). He found 16 injuries on the body of the  deceased.  He further opined that injuries 1 to 11 were  caused by sharp edged weapon while injuries 12 to 16 were  caused by blunt weapon. To establish the accusations,  thirteen witnesses were examined. The accused persons were  arrested on 4.2.1986, 5.2.1986 and 6.2.1986. At the time of  arrest, it was noticed that four injuries were present on  the person of Rattan Singh and three of the injuries were  simple and of minor nature, and one was caused by sharp  edged weapon.  

       During trial, the accused persons took the plea that  they were innocent and have been falsely implicated. Accused  Rattan Singh took the plea that on the date of occurrence in  the morning, he was present in the lane in front of his  house and he found the deceased coming with a kirpan in an  aggressive mood. While he was trying to run away, the  deceased gave a kirpan blow on his left arm. Both he and the  deceased entered his courtyard and when he cried for help,  his brother-Harbans Singh armed with a dang, his servants  Ram Singh and Ramu armed with different weapons intervened  and rescued him by causing injuries on the deceased.  Rattan  Singh claimed that while he was running away, he fell down  and suffered minor injuries. He alleged that his son had  gone to the police station and returned to the village with  the police. But, instead of taking action against the main  culprit he and his family members were falsely implicated.  

       Accused-appellants took the stand that they were  arrested on 4.2.1986. The police officials manipulated the  records to show as if they were arrested later on. In order  to substantiate their plea, the accused persons examined  four witnesses. Dalbir Singh (DW1) produced the record to  show that Lakhvinder Singh was studying in class 6th when  he discontinued studies on 2.5.1981 and his date of birth is  20.4.1968. Harbhajan Singh (DW2) produced the school records  to show that Lakhvinder Singh had studied in his school up  to class 5th. R.S. Kumar (DW3) stated that one Harbans  singh was confined in the Sub-Jail, Dasuya under the orders  of SDM in a case under Sections 107/115 of Cr.P.C. and had a  injury on the person at the time of admission into jail . Dr.  Kamlesh Kumar (DW4) stated about the injuries on Harbans  Singh.

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Learned Additional Sessions Judge, Hoshiarpur held that  the prosecution has been able to establish its accusations  against all the five accused persons. The matter was carried  in appeal before the High Court which held that the  prosecution has not been able to bring home the accusations  against the accused appellants and by judgment and order  dated 2.5.1988 directed acquittal of all the accused  persons.               The State of Punjab assailed correctness of the said  judgment before this Court in Criminal Appeal Nos.525- 526/1989. By judgment dated 24.7.1997 the appeals were  allowed and the matter was remitted to the High Court for a  fresh disposal on merits. The High Court was requested to  dispose of the appeals as early as possible preferably  within a period of three months from the date of  communication of the order.  

By the impugned judgment the High Court has taken the  view that the accusations against the accused appellants  have been fully established; but held the evidence to be  inadequate so far as accused Rattan Singh and Gurdip Singh  are concerned. The accused-appellants assail correctness of  the said judgment in these appeals.   

       In support of the appeals, learned counsel for the  appellants submitted that there are several infirmities  which rendered the prosecution version vulnerable, but the  Trial Court and the High Court lost sight of these vital  factors. Had these factors been considered, there was no  scope for finding the accused appellants guilty. It was,  inter alia, submitted that there was no independent  witnesses examined. Only son and close relative of the  deceased have been examined. No co-villager came to depose  for the prosecution and this is unusual. Conclusion that in  a faction ridden village independent witnesses are not easy  to find is a surmise. The conclusion that the Panchayat was  siding with the accused persons is a factor in favour of  accused persons. It indicates that the defence version as  projected by Rattan Singh was true  and should have been  accepted. One of the so-called eye-witnesses and the son of  the deceased Sukhvinder Singh was not examined. Body was  found inside of the house of Rattan Singh which probabilises  the defence version. It was the prosecution version that the  body was lifted from the spot of occurrence to the house of  Rattan Singh. But no blood stains were found at the place of  occurrence from where the body was claimed to have been  lifted. Conduct of PWs 9 and 10 in not coming to rescue of  the deceased and not even raising an alarm is rather  unusual. PW10 who belongs to another village has not even  signed the inquest report though he claimed to be present  when inquest was done. This clearly establishes that he  could not have been present as claimed. Injuries on the  accused persons have not been explained. In view of the fact  that two of the accused persons against whom similar  evidence was tendered have been acquitted it would not be  proper and legal to convict rest of accused persons on the  same set of evidence. Benefit of doubt should be given on  account of co-accused’s acquittal. It was submitted that the  evidence is inadequate to fasten guilt, and therefore  prosecution cannot be said to have established its case  beyond doubt.  

Per contra, learned counsel for the State submitted  that the trial Court and the High Court have analysed the

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various points now urged in detail and have rightly come to  the conclusion that the accused appellants were guilty. In  view of the admitted position that village was faction  ridden and there was lot of hostility, it would be too much  to expect non-partisan witnesses. As noted above, there has  been an elaborate analysis of the evidence of PWs 9 and 10.  After carefully weighing the evidence, the trial Court and  the High Court have come to the conclusion that their  evidence suffers from no infirmity to be viewed with  suspicion.  

We shall first deal with the contention regarding  interestedness of the witnesses for furthering prosecution  version. Relationship is not a factor to affect credibility  of a witness.  It is more often than not that a relation  would not conceal actual culprit and make allegations  against an innocent person.  Foundation has to be laid if  plea of false implication is made.  In such cases, the  court has to adopt a careful approach and analyse evidence  to find out whether it is cogent and credible.

       In Dalip Singh and Ors.  v. The State of Punjab (AIR  1953 SC 364) it has been laid down as under:-

"A witness is normally to be considered  independent unless he or she springs from  sources which are likely to be tainted and  that usually means unless the witness has  cause, such as enmity against the accused,  to wish to implicate him falsely.   Ordinarily a close relation would be the  last to screen the real culprit and falsely  implicate an innocent person.  It is true,  when feelings run high and there is personal  cause for enmity, that there is a tendency  to drag in an innocent person against whom a  witness has a grudge along with the guilty,  but foundation must be laid for such a  criticism and the mere fact of relationship  far from being a foundation is often a sure  guarantee of truth.  However, we are not  attempting any sweeping generalization.   Each case must be judged on its own facts.   Our observations are only made to combat  what is so often put forward in cases before  us as a general rule of prudence.  There is  no such general rule. Each case must be  limited to and be governed by its own  facts."

       The above decision has since been followed in Guli  Chand and Ors. v. State of Rajasthan (1974 (3) SCC 698) in  which Vadivelu Thevar v. State of Madras (AIR 1957 SC 614)  was also relied upon.

       We may also observe that the ground that the witness  being a close relative and consequently being a partisan  witness, should not be relied upon, has no substance.  This  theory was repelled by this Court as early as in Dalip  Singh’s case (supra) 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:

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"We are unable to agree with the learned  Judges of the High Court that the testimony  of the two 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.  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). Stress was laid by the accused- appellants on the non-acceptance of evidence tendered by  some witnesses to contend about desirability to throw out  entire prosecution case. In essence prayer is to apply the  principle of "falsus in uno falsus in omnibus" (false in  one thing, false in everything). This plea is clearly  untenable. Even if major portion of evidence is found to be  deficient, in case residue is sufficient to prove guilt of  an accused, notwithstanding acquittal of number of other  co-accused persons, his conviction can be maintained. It is  the duty of Court to separate grain from chaff. Where chaff  can be separated from grain, it would be open to the Court  to convict an accused notwithstanding the fact that  evidence has been found to be deficient to prove guilt of  other accused persons. Falsity of particular material  witness or material particular would not ruin it from the  beginning to end. The maxim "falsus in uno falsus in  omnibus" has no application in India and the witnesses  cannot be branded as liar. The maxim "falsus in uno falsus  in omnibus" has not received general acceptance nor has  this maxim come to occupy the status of rule of law. It is  merely a rule of caution. All that it amounts to, is that  in such cases testimony may be disregarded, and not that it  must be disregarded. The doctrine merely involves the

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question of weight of evidence which a Court may apply in a  given set of circumstances, but it is not what may be  called ’a mandatory rule of evidence’. (See Nisar Alli v.  The State of Uttar Pradesh (AIR 1957 SC 366). Merely  because some of the accused persons have been acquitted,  though evidence against all of them, so far as direct  testimony went, was the same does not lead as a necessary  corollary that those who have been convicted must also be  acquitted. It is always open to a Court to differentiate  accused who had been acquitted from those who were  convicted. (See Gurucharan Singh and Anr. v. State of   Punjab ( AIR 1956 SC 460). The doctrine is a dangerous one  specially in India for if a whole body of the testimony  were to be rejected, because witness was evidently speaking  an untruth in some aspect, it is to be feared that  administration of criminal justice would come to a dead- stop. Witnesses just cannot help in giving embroidery to a  story, however, true in the main. Therefore, it has to be  appraised in each case as to what extent the evidence is  worthy of acceptance, and merely because in some respects  the Court considers the same to be insufficient for placing  reliance on the testimony of a witness, it does not  necessarily follow as a matter of law that it must be  disregarded in all respects as well. The evidence has to be  shifted with care. The aforesaid dictum is not a sound rule  for the reason that one hardly comes across a witness whose  evidence does not contain a grain of untruth or at any rate  exaggeration, embroideries or embellishment. (See Sohrab  s/o Beli Nayata and Anr. v. The State of Madhya Pradesh   1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of  Bihar  (AIR 1965 SC 277). An attempt has to be made to, as  noted above, in terms of felicitous metaphor, separate  grain from the chaff, truth from falsehood. Where it is not  feasible to separate truth from falsehood, because grain  and chaff are inextricably mixed up, and in the process of  separation an absolutely new case has to be reconstructed  by divorcing essential details presented by the prosecution  completely from the context and the background against  which they are made, the only available course to be made  is to discard the evidence in toto. (See Zwinglee Ariel v.  State of  Madhya Pradesh  (AIR 1954 SC 15) and Balaka Singh  and Ors. v. The State of Punjab. (AIR 1975 SC 1962). 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 recently in Krishna Mochi and Ors. v.  State of Bihar etc. (JT 2002 (4) SC 186).  Accusations have  been clearly established against accused-appellants in the  case at hand. The Courts below have categorically indicated  the distinguishing features in evidence so far as acquitted  and convicted accused are concerned.  

       As observed by this Court in State of Rajasthan v. Teja  Ram and Ors. (AIR 1999 SC 1776) the over-insistence on  witnesses having no relation with the victims often results  in criminal justice going away. When any incident happens in

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a dwelling house or nearby the most natural witnesses would  be the inmates of that house. It would be unpragmatic to  ignore such natural witnesses and insist on outsiders who  would not have even seen any thing. If the Court has  discerned from the evidence or even from the investigation  records that some other independent person has witnessed any  event connecting the incident in question then there is  justification for making adverse comments against non- examination of such person as prosecution witness.  Otherwise, merely on surmises the Court should not castigate  a prosecution for not examining other persons of the  locality as prosecution witnesses. Prosecution can be  expected to examine only those who have witnessed the events  and not those who have not seen it though the neighbourhood  may be replete with other residents also.  

       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 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.   

In matters such as this, it is appropriate to recall  the observations of this Court in Shivaji Sahebrao Bobade  v. State of Maharashtra [1974 (1) SCR 489 (492-493)]:

"......The dangers of exaggerated  devotion to the rule of benefit of doubt at  the expense of social defence and to the  soothing sentiment that all acquittals are  always good regardless of justice to the  victim and the community, demand special  emphasis in the contemporary context of  escalating crime and escape. The judicial  instrument has a public accountability.  The  cherished principles or golden thread of  proof beyond reasonable doubt which runs  through the web of our law should not be  stretched morbidly to embrace every hunch,

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hesitancy and degree of doubt......."

".....The evil of acquitting a guilty  person light-heartedly as a learned author  Clanville Williams in ’Proof of Guilt’ has  sapiently observed, goes much beyond the  simple fact that, just one guilty person has  gone unpunished. If unmerited acquittals  become general, they tend to lead to a  cynical disregard of the law, and this in  turn leads to a public demand for harsher  legal presumptions against indicted  ’persons’ and more severe punishment of  those who are found guilty. Thus too  frequent acquittals of the guilty may lead  to a ferocious penal law, eventually eroding  the judicial protection of the  guiltless....."

".......a miscarriage of justice may  arise from the acquittal of the guilty no  less than from the conviction of the  innocent....."             

       The position was again illuminatingly highlighted in  State of U.P.  v. Krishna Gopal (AIR 1988 SC 2154). Similar  view was also expressed in Gangadhar Behera and Ors. v.  State of Orissa (2002 (7) Supreme 276).  

                 So far as inaction of PWs 9 and 10 in not coming to  rescue of deceased is concerned, it has been noted by the  trial Court and the High Court that both of them were  unarmed and bare handed and the accused persons were armed  with deadly weapons. How a person would react in a  situation like this cannot be encompassed by any rigid  formula. It would depend on many factors, like in the  present case where witnesses are unarmed, but the  assailants are armed with deadly weapons. In a given case  instinct of self-preservation can be the dominant instinct.  That being the position, their inaction in not coming to  rescue of the deceased cannot be a ground for discarding  their evidence.  

       One of the pleas is that the prosecution has not  explained the injuries on the accused. Issue is if there is  no such explanation what would be its effect? We are not  prepared to agree with the learned counsel for the defence  that in each and every case where prosecution fails to  explain the injuries found on some of the accused, the  prosecution case should automatically be rejected, without  any further probe. In Mohar Rai and Bharath Rai v. The  State of Bihar (1968 (3) SCR 525), it was observed:

               "...In our judgment, the failure  of the prosecution to offer any explanation  in that regard shows that evidence of the  prosecution witnesses relating to the  incident is not true or at any rate not  wholly true. Further those injuries  probabilise the plea taken by the  appellants."

In another important case Lakshmi Singh and Ors. v. State  of Bihar (1976 (4) SCC 394), after referring to the ratio

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laid down in Mohar Rai’s case (supra), this Court observed:

               "Where the prosecution fails to  explain the injuries on the accused, two  results follow:

               (1)     that the evidence of the  prosecution witnesses is untrue; and (2)  that the injuries probabilise the plea taken  by the appellants."

It was further observed that:

       "In a murder case, the non-explanation  of the injuries sustained by the accused at  about the time of the occurrence or in the  course of altercation is a very important  circumstance from which the Court can draw  the following inferences:

       (1)     that the prosecution has  suppressed the genesis and the origin of the  occurrence and has thus not presented the  true version;

       (2)     that the witnesses who have denied  the presence of the injuries on the person  of the accused are lying on a most material  point and, therefore, their evidence is  unreliable;

       (3)     that in case there is a defence  version which explains the injuries on the  person of the accused assumes much greater  importance where the evidence consists of  interested or inimical witnesses or where  the defence gives a version which competes  in probability with that of the prosecution  one."

In Mohar Rai’s case (supra) it is made clear that failure  of the prosecution to offer any explanation regarding the  injuries found on the accused may show that the evidence  related to the incident is not true or at any rate not  wholly true. Likewise in Lakshmi Singh’s case (supra) it is  observed that any non-explanation of the injuries on the  accused by the prosecution may affect the prosecution case.  But such a non-explanation may assume greater importance  where the defence gives a version which competes in  probability with that of the prosecution. But where the  evidence is clear, cogent and creditworthy and where the  Court can distinguish the truth from falsehood the mere  fact that the injuries are not explained by the prosecution  cannot by itself be a sole basis to reject such evidence,  and consequently the whole case. Much depends on the facts  and circumstances of each case. These aspects were  highlighted by this Court in Vijayee Singh and Ors. v.  State of U.P. (AIR 1990 SC 1459).

       Non-explanation of injuries by the prosecution will not  affect prosecution case where injuries sustained by the  accused are minor and superficial or where the evidence is  so clear and cogent, so independent and disinterested, so  probable, consistent and creditworthy, that it outweighs the

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effect of the omission on the part of prosecution to explain  the injuries. As observed by this Court in Ramlagan Singh v.  State of Bihar (AIR 1972 SC 2593) prosecution is not called  upon in all cases to explain the injuries received by the  accused persons.  It is for the defence to put questions to  the prosecution witnesses regarding the injuries of the  accused persons.  When that is not done, there is no  occasion for the prosecution witnesses to explain any injury  on the person of an accused.  In Hare krishna Singh and Ors.  v. State of Bihar (AIR 1988 SC 863), it was observed that  the obligation of the prosecution to explain the injuries  sustained by the accused in the same occurrence may not  arise in each and every case. In other words, it is not an  invariable rule that the prosecution has to explain the  injuries sustained by the accused in the same occurrence.   If the witnesses examined on behalf of the prosecution are  believed by the Court in proof of guilt of the accused  beyond reasonable doubt, question of obligation of  prosecution to explain injuries sustained by the accused  will not arise.  When the prosecution comes with a definite  case that the offence has been committed by the accused and  proves its case beyond any reasonable doubt, it becomes  hardly necessary for the prosecution to again explain how  and under what circumstances injuries have been inflicted on  the person of the accused.  It is more so when the injuries  are simple or superficial in nature.  In the case at hand,  trifle and superficial injuries on accused are of little  assistance to them to throw doubt on veracity of prosecution  case, particularly, when the accused who claimed to have  sustained injuries has been acquitted.          

       The fact that name of PW10 does not figure in the  inquest report or that the DDR entry does not contain the  name of Pritam Singh does not in any way corrode the  credibility of the prosecution version, particularly when  the reason as to why these were absent in the relevant  documents has been plausibly explained by the witnesses,  and after consideration accepted by the trial Court and the  High Court.

       Above being the position, the appeals are without  merit and deserve dismissal, which we direct.