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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: SURJA RAM

DATE OF JUDGMENT09/08/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) NANAVATI G.T. (J)

CITATION:  1995 AIR 2413            1995 SCC  Supl.  (3) 419  JT 1995 (6)   383        1995 SCALE  (4)689

ACT:

HEADNOTE:

JUDGMENT: (With Crl. Appeal No. 346 of 1984)                           JUDGMENT M.K.MUKHERJEE, J.      Surja Ram and his three sons Mohan Lal, Vinod Kumar and Pramod Kumar, all residents of village Puran Patti under the police station  of Fazilka  (Sadar), were  placed  on  trial before the  Sessions Judge,  Ferozepore  to  answer  charges under Section  302 read  with Section 34 of the Indian Penal Code for  the murders  of Tulsa  Ram, the  elder brother  of Surja Ram, and his son Brij Lal. On conclusion of the trial, the learned  Judge acquitted  all  of  them  of  the  charge relating to  the murder of Brij Lal and also acquitted Vinod Kumar and  Pramod Kumar  of the  other charge  but convicted Surja Ram and Mohan Lal and sentenced each of them to suffer imprisonment  for   life.  Against   their  conviction   and sentence, Surja  Ram and Mohan Lal preferred an appeal which was allowed  by the  High Court.  Assailing their  acquittal these two  apeals have  been preferred;  one by the State of Punjab (Criminal  Appeal No.  448 of  1984)  and  the  other (Criminal Appeal No. 346 of 1984) by Kamla Devi, daughter of the deceased  Tulsa Ram.  Both the  appeals have  been heard together and this judgment will dispose of them.      The case  for the  prosecution, briefly  stated, is  as under: Ishar  Ram, father  of Surja  Ram and  Tulsa Ram  had divided his  lands in  three equal  shares, one of which was given to  Surja Ram (the respondent no. 1), another to Tulsa Ram (the  deceased) and  the third  was retained  by him. In terms of  the said  division, a  field known  as ‘Diggiwala’ fell in  the share  of Tulsa  Ram and  he used to sow Moongi crops thereon. Surja Ram, however, was demanding a share out of the  Moongi crops from Tulsa Ram, but the latter told him that as  he (Surja  Ram) was  already in  possession of more land than  that fell  in his share, he should first give him (Tulsa Ram)  a part of it before he could claim any share in the Moongi  crops. This  proposal was however not acceptable

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to Surja Ram.      On April  18, 1982  at or  about 5  p.m. Tulsa  Ram was sitting in  an open  space outside  his house  while his two sons Ram  Gopal (PW 4) and Brij Lal (the deceased) were away to the  field for  raising crops.  At that  time  Surja  Ram accompanied  by  his  three  sons  came  there  and  started shouting that  Tulsa Ram  should be  taught a lesson for not giving the  share of  Moongi crops. Surja Ram was carrying a spear, Mohan  Lal a  pistol, Vinod Kumar a kirpan and Parmod Kumar a  soti. Apprehending  danger, Tulsa  Ram got  up  and tried to  rush into  his house when Mohan Lal fired from the pistol hitting  him on  the back.  As a result thereof Tulsa Ram  fell  down  with  his  face  upwards.  Surja  Ram  then inflicted a  blow, with  the spear  he was  carrying, on the chest of  Tulsa Ram.  Immediately thereafter Tulsa Ram died. Kamla Devi (PW 2), daughter of Tulsa Ram, and Ram Swarup (PW 3) who  were inside  the house  and had  earlier come out on hearing the  shouts raised by Surja Ram, cried out for help. All the  four miscreants then ran towards the field shouting that they  would not spare the sons of Tulsa Ram also. Kamla Devi and Ram Swarup then rushed towards the field where Brij Lal and  Ram Gopal were working. Sighting the miscreants Ram Gopal fled  away but  Brij Lal  could  not  succeed  in  his attempt as  Mohan Lal  fired three shots at him resulting in his instantaneous  death. Finding  Brij Lal dead, Kamla Devi came back  home and  sent Ram  Swarup to inform her maternal uncles, who  lived in  a nearby  village. After  Ram  Swarup returned with  her maternal  uncles Raja  Ram  (PW  12)  and Kanshi Ram  (PW 13),  Kamla Devi left for the police station accompanied  by   Kanshi  Ram.  There  she  lodged  a  First Information Report,  (Ext. PJ)  which was  recorded by  Sub- Inspector Bhagwan Singh (PW 18).      After registering  the case  Bhagwan Singh left for the place of  occurrence accompanied  by Kamla  Devi and  Kanshi Ram. Reaching  there he  found the  dead body  of Tulsa  Ram lying in  front of  his house. He held inquest thereupon and sent it  for post-mortem  examination. He also collected and seized some  blood stained earth from the spot. He then went to the  field where  the dead  body of  Brij Lal  was lying. After holding  inquest he  forwarded the dead body for post- mortem examination.  From the  field he  also collected  and seized some  blood stained earth. Thereafter he recorded the statements of  witnesses including Ram Swarup and Ram Gopal. In course  of the  investigation  he  arrested  the  accused persons and  interrogated them.  Pursuant to  the  statement made by Surja Ram he recovered a spear which was lying under a heap  of cotton  sticks in  his house.  The other  accused Mohan  Lal   (respondent  No.  2)  also  made  a  disclosure statement and  pursuant thereto  PW 18  recovered a country- made pistol  and three  cartridges, which  were wrapped in a piece of  cloth and kept buried in a field. On completion of investigation he  submitted charge-sheet  and in  due course the case was committed to the Court of Session.      The accused  persons pleaded  not guilty to the charges levelled against them and stated that they have been falsely implicated.  They,   however,  admitted  their  relationship inter-se as  also  with  the  deceased  and  the  factum  of partition.      To bring  home the charges levelled against the accused the prosecution  relied principally  upon the ocular version of the  incident as  given out  by Kamla Devi (PW 2) and Ram Swarup (PW  3). PW  2 also testified about her having lodged the F.I.R.  at the  police station  and PW 3 spoke about his having  gone   to  village  Sabuana  immediately  after  the incident to  fetch Raja  Ram and  Kanshi Ram. To corroborate

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the testimonies  of the  above two witnesses the prosecution relied upon  the evidence of Dr. S.N. Mittal (PW 1) who held post-mortem examination upon the two dead bodies and found a number of  injuries on  their persons.  Besides, prosecution laid evidence  to prove that pursuant to the statements made by Surja Ram and Mohan Lal (the two accused-respondents) the offending spear  and pistols  were recovered. The reports of the Forensic  Science Laboratory, which indicated that earth seized from  near  the  house  of  the  deceased  Tulsa  Ram contained  human   blood,  and   of  the   Ballistic  Expert indicating that  the recovered  pistol was  used  in  recent firing were also exhibited. On discussion of the evidence so adduced by  the prosecution,  the trial  Judge firstly  held that even  if it  might be concluded that there was no proof of motive  it would not adversely affect the direct evidence of the  eye-witnesses. The  trial Judge  then discussed  the evidence of  the two  eye-witnesses. The  trial  Judge  then discussed the  evidence of  the two  eye-witnesses and found the same  reliable, so  far as it related to murder of Tulsa Ram  near  his  house,  notwithstanding  some  discrepancies which, according  to him,  were of a minor nature. The trial Judge further  held that the injuries found on the dead body of Tulsa Ram by the doctor conformed with the eye-witnesses’ narration of  the incident.  As regards the other murder the trial Judge  held that  the account of the incident as given out by  the two  eye-witnesses  stood  contradicted  by  the medical  evidence.   In  drawing  the  above  conclusion  he observed that  the fire-arm  injuries sustained  by Brij Lal were the  result of a single shot but both the eye-witnesses stated that he had been shot at thrice. Another reason which weighed with  him in  recording the  order of  acquittal  in respect of  the murder of Brij Lal was the unnatural conduct of the  two eye-witnesses following the murder of Tulsa Ram. According to  the trial  Judge if PWs 2 and 3 had heard from the accused  about their  intention to  go after the sons of Tulsa Ram  and if  they had  in fact  seen the accused going towards the fields where Brij Lal and Ram Gopal were working it was  expected of  them to  raise hue  and  cry  and  seek others’ help.  He also  doubted the presence of Ram Gopal in the field.  Having perused  the evidence  on record  we find that none  of the  grounds canvassed  by the trial Judge for recording the  acquittal in  respect of  the charge  for the murder of  Brij Lal  is sustainable.  However, we  need  not detail the  reasons for  our above conclusion for, no appeal was preferred against that acquittal and in these appeals we are only  concerned with the question whether the High Court was justified  in acquitting  the  two  respondents  of  the charge relating to the murder of Tulsa Ram.      It is  trite that  while dealing with an appeal against an acquittal  recorded by the High Court this Court does not ordinarily interfere  with  it  but  if  it  is  found  that relevant and reliable evidence on record has been lost sight of, ignored  or brushed  aside for  reasons which are wholly unsustainable this Court will not only be justified - but it will be  its duty  - to interfere with the acquittal to make amends for the failure of justice.      From the  impugned judgment  of the High Court we first find that  it negatived-and  in our  view  rightly-the  plea raised on  behalf of  the two  respondents  (the  appellants therein) that since the trial Court had totally rejected the evidence of  the two  eye-witnesses in respect of the murder of Brij  Lal there was no guarantee of truth attached to the self-same evidence  in respect  of the  murder of Tulsa Ram, with the following observation:-      "There is  no gainsaying  and the  trial

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    Court  has  also  held  that  the  maxim      "Falsus in  uno, Falsus  in omnibus" has      not been  applied by the courts in India      but at  the same  time, what is required      to be  judged is  as to whether the eye-      witnesses  are  otherwise  reliable,  or      not".      The High  Court then  posed the  question as to whether the two  eye-witnesses were reliable or not and answered the same in the negative with the following findings: i) The  F.I.R. was not a genuine document as it was prepared at the  behest of  the Investigation  Officer, after he held inquest, to  dovetail with  the injuries found by him on the person of  Brij Lal.  Consequently,  no  reliance  could  be placed upon  the testimony  of Kamla  Devi, who  lodged  the same; ii) There  was no  satisfactory explanation for the delay in lodging the  F.I.R. at  the police  station which  was at  a distance of hardly 4 or 5 miles from the spot; iii) Ram  Swarup was  merely a  chance witness  as he  was a resident of  a  different  village  and  it  was  a  strange coincidence that  he had  come from  his own  village to see Kamla Devi  at exactly  5 p.m. when the incident took place; and iv) Considering  the matter from the angle of natural course of human  conduct and  probabilities, the  two eye-witnesses would not  have dared to follow the appelants to the fields, after seeing  Tulsa Ram  being put  to death  , in  order to witness the  murder of  Brij Lal  and  if  they  had  really followed the  assailants, as  claimed by  them, it  was more likely that  they would  have been  attacked by  the accused persons but no such claim was even made.      After a  close look to the entire evidence on record we are constrained  to say  that each  of the above findings is untenable. Prosecution laid evidence, through PW 2 and PW 18 - which was not controverted - that the F.I.R. was lodged at the police  station at  8 p.m.  on 18.4.82. We next get from the record  of the  trial Court that on 11.1.1983 the Public Prosecutor tendered  the evidence  of a number of witnesses, including  Constable   Sukhwant  Sing   (PW   11),   through affidavits, as he considered their evidence to be formal. On such tendering  of evidence  the trial  Judge  recorded  the following order:      "The accused  have no  objection to  the      admissions to  the statements  of P.W. 5      to P.W.  11 on  affidavits. They  do not      wish to  cross  examine  them.  I  herby      order  that  the  statements  of  formal      witnesses P.W.5 to P.W.11 be admitted on      affidavits."      The procedure so adopted by the trial Judge was clearly in consonance  with Section  296 of  the  Code  of  Criminal Procedure. Coming  now to  the affidavit  of PW  11  we  get therefrom that  on 18.4.1982  at 9.45  p.m. he delivered the special report  to Shri  D.R. Arora, the Judicial Magistrate in charge  of Fazilka.  PW 11 asserted that he did not delay the delivery  of the  special report. The endorsement in the FIR also  corroborates the above uncontroverted statement of PW 11.  Then again  it is  the categorical  statement of the Investigation Officer - which again has not been controvered - that  he completed the formalities regarding the recording of FIR  by 9.15  p.m. and  proceeded for the spot at 10 p.m. Having regard  to the  fact that the FIR and for that matter the special  report  in  respect  thereof  had  reached  the Magistrate in  accordance with  Section 157  of the  code of

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Criminal procedure  before departure  of  the  Investigating Officer from the police station for the spot, the finding of the High  Court that  the FIR  was doctored at the behest of the Investigating  Officer to  fit in  with the  injuries he found on  the person of Brij Lal at the time of inquest must be attributed to its non-consideration of material evidence.      Regarding the second finding we can only say that there was no  delay whatsoever  in lodging  the F.I.R.  for it was lodged by  PW 2  within three  hours of  the incident  after covering a  distance of 5 miles. This apart, the sequence of events as  deposed to  by PW 2 clearly demonstrates that she had gone  to the police station at the earliest opportunity. According to  her she  first sent  message to  her  maternal uncles through  Ram Swarup and only after they came she went to the police station and her evidence in this regard stands fully supported  by Raja  Ram (PW  12), her  maternal uncle. PW12 testified  that at 6.30 p.m. Ram Swarup had come to his village and reported the incident to him. Thereafter he left for Kamla’s  place accompanied by Kanshi Ram. We cannot lose sight of the fact that PW 2, who was aged only 19 years, had lost her  father and  brother  just  then  and  it  was  not unlikely of  her first  to apprise her relations of the same and seek  their help  at that hour of her distress. The High Court, however,  observed that  if really  PW  3  was  there nothing  prevented   PW  2  to  go  to  the  police  station accompanied by  him as  he was  the surpanch  of his village instead of getting in touch with her maternal uncles. Simply because PW 2 did not react in the way the High Court thought she should  have, it  ought not  have been made a ground for drawing adverse  conclusions against  her conduct, which was clearly normal  and natural.  While on this point it will be also pertinent  to point out that PW 3 was not a sarpanch of Kamla’s village.      Coming now  to the  third finding  it must be said that the High  Court ought not to have brushed aside the evidence of Ram  Swarup (PW  3) solely  on the  ground that  being  a resident of another village it was not expected of him to be present at  the spot  just at the right time for, there are, besides his  own evidence  and that of PW 2, other materials on record  which confirms  his presence  at the  time of the occurrence. Raja Ram (PW 12) stated in his evidence that Ram Swarup had come to his house in village Sabuana on April 18, 1982, at  or about  6.30 p.m. and gave a detailed version of the incident. He further stated that accompanied by Raja Ram he went  to village  Puran Patti on a motor cycle. In cross- examination it  was not  even suggested  to PW  12 that  his above statements were incorrect. Another significant fact is that PW  3’s name finds place in the FIR as a witness to the occurrence. We  do not,  therefore, find any reason to leave the evidence  of PW 3 out of our consideration on the ground that he was a chance witness.      The last  finding of  the High Court is solely based on the ground that the claim of the two eye-witnesses that they had seen  the murder of Brij Lal was highly improbable. Even if  we  proceed  on  the  assumption  that  the  finding  is unexceptionable still  then the  High Court  was not  at all justified in  rejecting their  evidence so far as it related to the  murder of  Tulsa Ram  on that score alone for law is well settled  that when evidence of a witness is rejected in part a duty is cast upon the court to sift his evidence with more than  ordinary care and caution to find out whether the rest  of   the  evidence   is  fully   trustworthy,   either intrinsically or  by  reason  of  corroboration  from  other trustworthy sources.  Indeed, as  noticed earlier,  the High Court itself  negatived an  identical  threshold  contention

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raised by the respondents based on the maxim "Falsus in uno, Falsus in omninbus".      Now that  we have  found that the reasons which weighed with the  High Court  in recording the order of acquittal in favour of the two respondents cannot be sustained we have to ascertain  whether   the  trial   Court  was   justified  in convicting them  solely relying  on the  evidence of P.Ws. 2 and 3.  After going through their evidence carefully we find that they  fully supported  the prosecution case as detailed earlier, including  the specific  roles played  by  the  two respondents in the murder of Tulsa Ram. Considering the fact that the  incident took  place just in front of the house of Tulsa Ram, P.W. 2 was the most natural and probable witness. The claim  of PW  3 that he was in the house of Tulsa Ram at the material  time has  already been  found by  us to  be  a genuine one.  He must,  therefore, also  be  held  to  be  a probable witness. Though both of them were cross-examined at length nothing  could be  elicited to discard their evidence or materially contradict them. Dr. Mittal (P.W. 1) testified that the  deceased (Tulsa  Ram) had  an incised wound on the right chest,  and an  incised wound  below base  of neck. He also found  four pellet wounds on the dead body besides some abrasions. When  P.W. 1  was shown  a spear (Ex. p. 1) which was seized  during investigation  he  opined  that  the  two incised wounds  might have been caused by one blow with that instrument as  the two  wounds communicated with each other. He further opined that the pellet wounds might have been the result of  a single shot from a firearm. The evidence of the Doctor, therefore,  fully supports  the evidence  of the two eye-witnesses. This  apart, the F.I.R., which has been found by us  to have  been promptly  lodged  contains  a  detailed outline of  the prosecution  case and  thus corroborates the evidence of P.W.2. The find of human blood near the house of Tulsa Ram  also is  a piece of corroboration of the evidence of P.Ws. 2 and 3. The trial Judge, however, did not lend any importance to  the factum  of recovery  of the spear and the pistol pursuant  to the  statements made  by the  respondent Nos. 1  and 2  respectively, on the ground that no blood was found on  the spear  and the  Ballistic Expect’s report only indicated that  the pistol  had  been  used  before  it  was recovered but  such user  could not  be connected  with  the commission of  the crime. We also, therefore, do not find it prudent to  take  into  consideration  the  above  evidence. However such  non-consideration does not in any way deter us from accepting  the prosecution  case as  we find  that both P.Ws. 2  and 3 are wholly reliable and their evidence stands corroborated by other evidence on record.      On the  conclusions as above we allow both the appeals, set aside  the impugned  judgment  of  the  High  Court  and restore  the  order  of  conviction  and  sentence  recorded against the  two respondents  under Section 302/34 I.P.C. by the learned  trial Judge.  The respondents  who are  on bail will now  surrender to  their bail  bonds to  serve out  the sentence.