Singh Vs. Devinder Sing & ANR  INSC 587 (9 July 1997)
MUKHERJEE, K. T. THOMAS
case reflects the bizarre offshoot of unholy campus politicisation culminating
in the premature end of Jasbir Singh a student who reached final year in M. A
(Economics). The venue of the murderous onslaught as the precinct of Nar Hari
Hostel attached to Kurukshetra university in Haryana and the time was lunch
recess on 23- 10-1986. Jasbir Singh was stabbed to death
while his fellow student Sumer singh received grievous hurt.
Twelve persons including some student leaders of the rival wing were sent up
for trial before the Designated Court of Kurukshetra as the charge included
Section 6 of the Terrorist and Disruptive Activities(Prevention) Act, 1987 (for
short "the TADA') But all of them were acquitted by the trial Judge and
these appeals have been filed under Section 19 of the TADA.
backdrop disquieting from the angle of campus discipline, was the college
students' union election on the lines of political party loyalties of the
students. Himat (9th accused) was a candidate for presidentship of the students
union and he was opposed by Jasbir Singh, being head of the rival students wing
owing allegiance to another political party. Himat won the election, but its
fallout was the acrimonious tension which persisted for long between two rival
student wings in the campus. Skirmishes erupted as a daily occurrence between
them and police had to register criminal cases against offending students. On
the previous day of occurrence in this case the victorious group made all
efforts to get their budget proposals approved by the general body but such
efforts were thwarted by the stiff resistance offered by jasbir Singh and his
followers. This became the immediate cause for the aggravated hostility between
the group led by Himat and the rival group led by Jasbir singh.
happened during the occurrence in this case, according to the prosecution
version, was this, At about 1,30 p.m. Jasbir Singh and Harpal Singh (PW-3) who
was studying in the first semester of M.A.(English)- and Randeep Rana (who was
the Secretary of the students Union to which Jasbir Singh belonged were
standing outside the canteen of Nar Hari hostel. Suddenly Himat (A-9) caught
hold of Jasbir Singh and then Satparkash (A-6) slapped a knife blow on the left
chest of Jasbir singh which was followed by Satbir Singh (A-1) inflicting
another knife blow on the left side of his chest. When Sumer Singh (PW-6)
intervened, presumably to rescue his colleague, he was prevented from nearing
the victim by Jeevan Singh (A-8) and Sandhip Singh (A-10). But right at a that
time Devinder Singh (A-5) gave a stab injury on Sumer Singh on his front costal
margin. The other assailants also attacked the deceased with iron rods, clubs,
and hockey sticks etc.
Singh breathed his last very soon. but Sumer Singh did not die as he was
operated upon emergently at the post Graduate Institute of Medical Education, Chandigarh which saved his life.
case was registered on the strength of the statement furnished by Harpal singh
(PW-3). Sumer Singh, the injured, was examined as PW-6 and no other eye witness
was examined. The trial court pointed out certain anomalies in the evidence of Harpal
Singh and declined to believe that he had witnessed the occurrence. What
remained was the evidence of Sumer Singh. Since he was one the injured in the
occurrence and was loyal to the opposite students wing, the trial judge found
his evidence insufficient for establishing the guilt against the accused.
Accordingly, he acquitted all the accused.
hearing the appeals, learned counsel for the accused reminded us of the oft
repeated caution that acquittals should not lightly e disturbed in appeals. We
have bestowed our consideration on the facts of these appeals keeping the
aforesaid rule of caution.
examination conducted on the body of Jasbir Singh revealed that out of 11 ante
mortem injuries found by the doctor, one was a spindle shaped incised wound
which pierced the sternum and cut the pericardium and perforated the left
atrium. Besides that he had three other incised injuries on the chest though
none of them was grievous enough to cause his death. However, the injury which
pierced his heart would have ended his life.
injury which the doctors found on Sumer Singh (PW- 6) was an incised wound on
the costal margin which perforated his liver. Dr. Pradeep Kumar (PW-5) of the
Post Graduate Institute of Medical Education, Chandigarh, performed a laparotomy and sutured the liver. PW-5 said in
court that Sumer Singh would have died if the emergency operation was not
performed in time.
It is therefore,
fairly clear that both jasbir Singh and Sumer Singh sustained serious stab
injuries. When Sumer Singh was examined as a witness to the occurrence, he
stuck to the prosecution version set forth earlier. PW-3 Harpal Singh on whose
statement the case was registered has also narrated the prosecution version
with all vivid details.
can be little doubt that PW-6 Sumer Singh had witnessed the occurrence. But the
drawback of his evidence is that he belonged to the students wing which was
admittedly rival to the accused students. Though that by itself is not enough
to tarnish his testimony, it is a sound rule in appreciation of evidence that
if the testimony of such a witness is to be used as the sole basis of
conviction it should be of such a calibre as to be regarded as wholly reliable.
The blemish attached to PW-6 as a partisan witness stands in the way of his
evidence becoming wholly reliable and hence without adequate reassurance from
other circumstances or materials it may not be safe to make the uncorroborated
evidence of such a witness the sole basis for reversing the order of acquittal.
presence of Harpal Singh at the place of occurrence can be believed as a
certainty his evidence would then become capable of corroborating the testimony
of Sumer Singh. They, when put together, would for, a sturdy basis to make the
prosecution version worthy of acceptance. so a scrutiny of the evidence of Harpal
Singh is of crucial importance in this case.
Singh (PW-3), at the time he gave evidence, was a law graduate, though he was
only a student of M.A.(English) when the occurrence took place. He was a
resident of the hostel in the precincts of which the incident happened, as
observed above. it is he who gave the first information statement to the police
in which also he claimed to have seen the occurrence and in which he narrated
the incident with all details. He was one of those who helped the injured
persons to reach the hospital at the earliest point of time. Normally, these
broad circumstances would ensure that he would ensure that he would certainly
have seen the occurrence.
the trial court which declined to place reliance on him noted some flaws in his
testimony; One such flaw is the failure of the police to collect the clothes
worn by Harpal Singh which were smeared with blood during the rescue operation.
We are unable to appreciate the said approach. If the clothes worn by the
injured or the victims were not recovered by the investigating team that
perhaps would have provided a handle to the defence to attack the prosecution
case. But no investigating agency would normally take the trouble to seize the
clothes worn by witnesses at the time they saw the occurrence merely because
their clothes too had collected stains of blood during any post event
rate the said omission on the part of the investigating agency is not a flaw of
that type to invite the consequence of jettisoning his testimony.
reason which the trial judge highlighted against PW-3 (Harpal Singh) was the
delay in recording first information statement. According to the trial court,
as the occurrence happened at 1.30 p.m. and
as the Sub- Inspector of police received intimation at 2.45 p.m. and that injured Sumer Singh was admitted in the Civil Hospital, Kurukshetra, the Sub-inspector should have rushed to the
hospital and recorded the statement of Sumer Singh. The fact cannot be
overloaded that Sumer Singh who was admitted in the Civil Hospital in a very
serious condition was emergently shifted to the post-Graduate institute of
Medical Education Chandigarh 3.50 p.m and that the sub-Inspector who reached
the civil Hospital had to collect the statement of Harpal Singh at 4.50 p.m.
For Sumer Singh and his kith and kin as also for the doctors, the life of Sumer
Singh was of prime value and that every effort should be taken to save it. The
trial judge seems to have taken a pedantic view in this matter.
trial court then harped upon the need for speedy despatch of the FIR to the
magistrate. Since four hours' time had elapsed as between making the FIR and
its reaching the hands of the magistrate, the trial judge felt that the FIR would
have been completely cooked up and he observed that Harpal Singh would not have
seen the occurrence. The said conclusion based on the above reasoning is
apparently fragite. Trial court should not have adopted a renown approach
regarding the delay in lodging the fir. Even if the residence of the Chief
Judicial Magistrate was close by, the fact that the FIR was lodged with him
within four hours is not ignorable. No doubt the ideal situation is that FIR is
lodged with utmost speed and despatch but if the ideal is not adhered to in any
case, the corollary is not castigation of the evidence of the maker of the FIR.
In the present set up no police station can be expected to have only one case
to look into. A little delay in lodging the FIR with the magistrate should not
be viewed from an unrealistic angle.
reason advanced by the trial court against evidence of Harpal Singh is that
when he was interrogated by the investigating Officer subsequently, he gave
more details regarding the occurrence. Firstly, the said supplementary
statement recorded by the Investigating officer could only have been used to
contradict the witness in view of the interdict contained in Section 162 of the
Code of Criminal Procedure, Secondly, that statement cannot be used for comparing
it with the FIR. That apart, if the Investigating Officer elicited more details
from the same person during any subsequent interrogation how could his evidence
become suspect? It is not advisable to throw the evidence of the informant
overboard merely because the investigating Officer succeeded in eliciting
further details or even fuller details during subsequent interrogation.
have noticed that the trial judge has omitted to refer to a very important item
of evidence while dealing with the testimony of Harpal Singh. it is the
evidence of Surinder Singh (PW-7) who was a research scholar in Kurukshetra University. The substance of what PW-7 said in court is this: when he
was proceeding to Nar Hari hostel during lunch recess, he saw Harpal Singh and Randeep
Rana helping the injured persons to get into a rickshaw and then PW-7 also
helped them to reach the hospital soon. On the way to the hospital, Harpal
Singh gave an account of the occurrence to PW-7.
cross examiner did not challenge that part of the evidence of PW-7 that Harpal
Singh gave a narration of the occurrence to PW-7 on their way to the hospital.
There is thus reassurance regarding the fact that Harpal singh was a witness to
the occurrence. There is absolutely no reason to doubt the testimony of PW-7
nor has the trial court castigated his testimony in any manner. PW-7,
therefore, gives us the confidence to believe that Harpal Singh has witnessed
what Harpal singh (PW-3) told the police in the First information Statement
must be the fresh account of the true facts. if he has seen the occurrence, we
see no reason of him to substitute some innocent persons as assailants.
position now is this : The testimony of summer singh stands fully corroborated
by the other eye witness pw- 3 Harpal singh.
counsel for the accused in this context argued that non examination of Randeep Rana,
who has seen the occurrence, has seriously impaired the core of the prosecution
case. No doubt, it would have been desirable if Randeep Rana was also examined
by the prosecution in court .
his non examination in this case did not cause any ripple affecting the case.
public Prosecutor may give up witnesses during trial to avert proliferation of
evidence which could save much time of the court unless examination of such a
witness would achieve some material use. Randeep Rana, if examined would only
have helped in duplication of the same category of evidence as the other two
eye witnesses. The Public prosecutor, therefore, cannot be blamed for adopting
the course of not examining him. If the accused thought that Randeep Rana's
evidence would help the defence, it was open to the accused to examine him as a
Singh & others vs. State of Punjab. Air 1965 sc 328, a Bench of three Judges (Gajendragadkar, Wanchoo and Dasgupta,
jj) has observed that in murder cases it is primarily for the prosecutor to
decide which witness he should examine in order to unfold the prosecution
story. " If a large number of persons have witnesses the incident it would
be open to prosecutor to make a selection of those witnesses, but the selection
must be made fairly and honestly and not with a view to suppress inconvenient
from the witness box." The same view has been followed in a number of cases
[ vide Masalti vs. State of U.P. AIR 1965 SC 202, by a Bench of four Judges (Gajendragadkar,
CJ, Wanchoo, Dasgupta and Raghubar Dayal, JJ); Gurmej Singh & others vs. State
Punjab, AIR 1992 SC 214, by a bench of three Judges;
& others vs. State Of Haryana, 1994 SCC (Crl) 239;
vs. State of Haryana, 1996 SCC (Crl.) 178 Girish Yadav & others vs. state
of M.P. 1976 SCC(Crl.) 552; Ram Sanjiwan Singh & others vs state of Bihar,
1996 SCC (Crl.) 701 Malkan Singh & others vs state of U.P 1995 SCC (Crl.)
893] No doubt Randeep Rana would have been a material witness. But merely
because he was not examined by the prosecution a criminal court is no to lean
to draw adverse inference that if he was examined he would have given a
contrary version. The illustration (g) in section 114 of the Evidence Act is
only a permissible inference and not necessary inference. Unless there are
other circumstances also to facilitate the drawing of an adverse inference, it
should not be a mechanical process to draw the adverse inference merely on the
strength of non-examination of a witness even if it is a material witness. We
do not see any justification, in this case, in drawing such an adverse
inference due to non examination of randeep Rana. [vide state of Karnataka vs. Moin
Patel, 1996 SCC (CRL.) 632] The aforesaid discussion leads to the following
made a clarion call to his companions to attack jasbir Singh and thereupon A-9
and A-7 inflicted stab injuries on the chest of the deceased. A-5 has inflicted
grievous hurt on the costal margin of Sumer Singh. A-1 and A-6 have acted
conjointly with the common intention to murder Jasbir singh.
cannot be convicted of anything more than causing grievous hurt to PW-6. The
exhortation made by A-9 would, no doubt, amount to facilitation of the crime. but
we think that in the circumstances it was probable that he would not have
intended causing more harm than grievous hurt to jasbir Singh. In such a
situation, we are not inclined to convict A-9 of the offence under Section 302
read with Section 34 of the IPC. but we unhesitatingly hold that he has
committed the offence under Section 326 read with Section 34 of the IPC.
parting with the case, we feel strongly to add a few more words which are of
contextual and topical importance. It is a malady in our country that political
parties allure young students through their student wings.
do so because it is an easy method for enlisting support and participation of
student population to their political programmes. Students, particularly in
adolescent age, are easily swayable by political parties without much effort or
cost as young and tender minds are susceptible to easy persuasiveness by party
leaders. But the disturbing aspect is that most of the political leaders do not
mind their student supporters developing hostility towards their fellow
students belonging to rival political wings. What happened in this case perhaps
was only the tip of the iceberg as campus rivalry has now deteriorated into a
bane of the Country. The print media is now replete with reports of such
calamitous instances in the campus atmosphere.
at the top layer leaders belonging to different political parties dine together
and socialise with each other without any personal acrimony as between
themselves, it is a pity that they do not encourage that healthy attitude to
percolate down to the grass root level. Tender mind gets galvanised on minor
issues, frenzy flares up even on trivialities, young children and adolescents
unaware of the disastrous consequences befalling their own future indulge in
vandalism, mayhem and killing spree against their own fellow students.
think that the time is now ripe for legislative interference to salvage the
campus free of political activities. We leave it to the members of legislatures
and leaders of the country to ponder over this with the seriousness it deserves
and to bring forth necessary measures to plug it.
therefore, allow these appeals and set aside the order of acquittal as against
A-1, A-5, A-6 and A-9. We convict A-1 and A-6 under Section 302 read with
Section 34 of the IPC and sentence each to imprisonment for life. We convict
A-5 under Section 326 of the IPC and sentence him to rigorous imprisonment for
five years. We also convict A-9 under Section 326 read with Section 34 of the
IPC and sentence him to rigorous imprisonment for five years. The acquittal as
for the remaining accused would stand undisturbed. Sessions judge is directed
to take steps to put the above convicted persons in jail to undergo the