Garib Singh & Ors Vs. State of
Punjab [1972] INSC 89 (22 March 1972)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
GROVER, A.N.
CITATION: 1973 AIR 460 1972 SCC (3) 418
ACT:
Appreciation of Evidence-Principles Reversal
of judgment of acquittal by High Court when justified-Indian Penal Code, s.
34, applicability of.
HEADNOTE:
Five persons including three appellants were
jointly charged and tried for rioting and offence committed in the course of
it. The Sessions Judge acquitted all the accused because he found the
prosecution story to be artificial. He also took into account the delay in
lodging the first information report and the fact that there were no 'blood
marks found where the injured persons were alleged to have fallen down.
The High Court in appeal filed by the. State
re-assessed, the evidence and reversed the judgment of acquittal in respect of
the three appellants. The appellants had been charged in respect of vicarious
offences under s. 149, of the Indian Penal Code, but the High Court, in view of
the acquittal of two of the five accused, convicted he appellants in respect of
those offences under s. 34 of the Code. In appeal by special leave this Court
had to consider (i) whether the reversal of the judgment of the trial court by
the High Court was justified with reference to principles of appreciation of
evidence and the decisions of the Court, (ii) whether the conviction of the
appellants by recourse to s. 34 was justified on the facts of the case,
HELD: (i) Perhaps there is no uniform method
of arriving at correct or at least satisfactory conclusions upon veracity of
versions placed before the Court which can be applied to all cases. It may be
possible to decide many cases by determining the main or crucial point on which
the decision of the case one way or the other may turn. In other cases, where
many disputable points are revolved, none of which is conclusive, a more
elaborate and comprehensive treatment of the various points involved in the
whole case may be necessary. Courts have, however, to attempt to, separate the
"chaff from the grain" in every case. They cannot abandon this
attempts on the ground that the case is baffling unless the evidence is really
so confusing or conflicting that the process cannot be reasonably carried out.
[983 H-984B] Chet Ram v. State, [1971] 1 S.L.I.153, referred to.
(ii) In judging the credibility of aversion
the Court must apply the standards of a reasonable and prudent man. [983 F]
(iii) In the present case the High Court had undoubtedly corrected the
erroneous approach of the learned Sessions Judge by pointing out obvious
answers to the points which the Sessions Judge seemed to regard as riddles
incapable of solution. For example, the delay in lodging the First Information
Report, although suspicious, could certainly be satisfactorily, explained by
the fact that the stab would in the stomach of one of the victims was so
serious that his statement could not be taken for several days afterwards.
The absence of blood at, the place of
occurrence 979 was given undue importance by the trial court inasmuch 'as the
blood might have got soaked in the clothes of the victims. Secondly after the
occurence, a number of persons must have passed to and fro over the path, where
the occurrence took place, before the arrival of the police next day. The
principles laid down by this Court were applied by the High Court in dealing
with the case and interference by this Court in respect of the appraisal of
evidence by the High Court would not be justified. [984 P-G; 986 A-B] Khedu
Mohton & Ors. v. State of Bihar, [1971] 1 S.C.R. 839 and Laxman Kalu
Nikalje v. The State of Maharashtra, [1968] 3 S.C.R. 685, referred to.
(iv) The High Court however erred in applying
s. 34 I.P.C.
to the facts of the present case. Taking the
totality of circumstances, particularly the nature of the injuries, the Diwali
night, and the place of occurrence on a public thoroughfare into account, the
pattern of the case was not that of a pre-plained attack. Mere carrying of
spears which was not unusual for Sikhs would not establish pre-planning.
The conviction of the appellants with
reference to s. 34 must therefore be set aside. [987 D-G; 989 G-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 165 of 1969.
Appeal by special leave from the judgment and
order dated April 15, 1969 of the Punjab and Haryana High Court in Criminal
Appeal No. 876 of 1966.
Nur-ud-din Ahmed and J. P. Aggarwal, for the
appellants. V.C. Mahajan and R. N. Sachthey, for the respondents. The Judgment
of the Court was delivered by Beg, J. Garib Singh, aged 36 years, Mohinder
Singh, aged 15 years, Bhagat Singh, aged 25 years, Rain Singh, aged 65 years,
Gurdial Singh, aged 66 years, were jointly charged and tried by the Additional
Sessions Judge of Patiala for rioting and offences committed in the course of
it. Garib Singh was charged separately under Sections 148 and 307 Indian Penal
Code for an injury he was alleged to have given in the abdomen of Sarwan Singh
(P.W. 7) with a Barchha, and for offences punishable under Sections 324 anti
323 Indian Penal Code with the aid of Section 149 Indian Penal Code.
Mohinder Singh was separately charged under
Sections 148 and 324 Indian Penal Code for inflicting an incised wound on
Chanan Singh (P.W. 8) with a spear, and, under, Sections 307 and 323 read with Section
149 Indian Penal Code. Bhagat Singh was separately charged under Sections 147
and 323 Indian Penal Code for causing simple injuries with A lathi on Gurdev
Singh (P.W. 9) and Ralla Singh (P.W. 10) and With the aid of Section 149 Indian
Penal Code for offences punishable under Sections 307 and 324 Indian Penal
Code.
Ram Singh 980 and Gurdial Singh, who were
also said to have been members of' an unlawful assembly which caused injuries
to the party of the complainant Sarwan Singh at about sunset on 24-10- 1965,
the date on which the festival of Diwali fell, were alleged to have only
instigated their companions by, giving lalkaras and saying that Sarwan Singh
should not be spared.
They were, therefore, charged separately only
under Section 147 Indian Penal Code and for offences under Sections 323, 324,
and 307 Indian Penal Code with the help of Section 149 Indian Penal Code. None
of the accused persons was, however, charged with any offence with the aid of
Section 34 Indian Penal Code.
The learned Sessions' Judge Who tried the
accused persons had after elaborately examining the prosecution and defence
versions, found the prosecution case to be "shroded in mystery as to how
all the accused got together, armed variously in the house of Ram Singh and assaulted
hi-in (i.e. Sarwan Singh) all of a sudden by darting out of the, house of Ram
Singh". The picture thus painted by the learned Sessions' Judge to
convince himself of the melo- dramatic artificiality of the prosecution version
did not really accord with prosecution evidence which was that, when Sarwan
Singh was passing in front of the house of Ram Singh, the accused came out and
surrounded him, and that Sarwan Singh thereupon raised an alarm which brought
the other injured witnesses, who had tried to salve him, to the scene.
It was only when Ram Singh and Gurdial Singh
gave, 'lalkaras' or instigated the others to attack and not to spare Sarwan
Singh that the assault was alleged to have begun. It is not unlikely that even
this version did not bring out the whole truth.
The defence version, put forward through
Kartar Singh (D.W.2), was that, on the Diwali night of 24-10-1965, at about 8
p.m., one Gurdev Singh (P.W. 12) son of Mangal Singh, had come with Chanan
Singh (P.W. 8) the injured and Ralla Singh (P W. 10) and Gurdev Singh Harijan
and had a quarrel with Sarwan Singh (P.W. 7) injured, and with one Gurbux Singh
(parentage not given) over the ownership of a tractor which was parked nearby.
It was stated by Kartar Singh that both sides were drunk and that Gurdev Singh
son of Mangal Singh had given a barchha blow to Sarwan Singh and Gurbux Singh
had given a barchha blow to Chanan Singh. It was sought to be proved by the
defence, through other witnesses, that, after this incident, there was a
compromise between the two sides so that Gurdev Singh son of Mangal Singh, at
the instance of Sarwan Singh, agreed to forego the unpaid price of the tractor,
amounting to Rs. 5,000/-, and to patch up the quarrel. It was not even
attempted to be explained by the defence version how an agreement could emerge
so suddenly not 981 only to patch up a quarrel in which a very serious injury
was sustained by Sarwan Singh but also to involve accused persons in place of
the actual assailants of Sarwan Singh and others. The suggestion, however was
that the section case, according to which there was litigation between proses
Singh and Bhagat Singh accused on one side and Sarwan Singh (P.W. 7) on the
other, and the intervention of Chanan Singh (P.W. 8), who had his own scores to
settle with Garib Singh, explained the implication of all .the accused persons.
The learned Sessions' Judge was, we find, ,more mystified by certain features
in the prosecution' case than impressed by I the very unnatural and incredible
defence version. He had, therefore, acquitted all the accused persons for what
he considered to. be. the weaknesses. of the prosecution case, but he had also
mentioned the defence version as, though it could conceivably contain some
truth.
On an appeal filed by the State of Punjab, a
Division Bench 'of the High Court listed and then examined each of the features
of the evidence in the case which had baffled tie learned Sessions Judge. It
then re-assessed the whole prosecution evidence itself. It came to the
conclusion that the injured eye witnesses, namely, Sarwan Singh (P.W. 7),
Chanan Singh' (P.W. 8), Gurdev Singh .son of Sadda Ram (P.W.9), Ralla Singh
(P.W. 10) must be believed, at any rate with regard to the three accused
persons, namely, Garib Singh, Mohinder Singh and Bhagat Singh, who were alleged
to have actually caused injuries to them. It, therefore, convicted the three
appellants before us by special leave by applying Section 34 I.P.C. Garib Singh
was convicted under Section 307 I.P.C. separately, for the injury caused to Sarwan
Singh (P.W. 7) and sentenced to five years rigorous imprisonment and he was
also convicted and sentenced to one year's rigorous imprisonment under Section
324/34 and to three months' rigorous imprisonment under Section 323/34 I.P.C.
Mohinder Singh was convicted separately and
sentenced to one year's rigorous imprisonment under Section 324 I.P C., to
three years' rigorous imprisonment under Section 307/34 Indian Penal Code, and
to three months' rigorous imprisonment under Section 323/34 I.P.C. Bhagat Singh
was convicted separately and sentenced to three months' rigorous imprisonment
under Section 323 I.P.C., to five years' rigorous imprisonment under Section
307/34 I.P.C. and to one year's, rigorous imprisonment under Section 323/34
I.P.C.
All the sentences were directed to
run-concurrently.
The High Court had stistained the acquittal
of Ram Singh and Gurdial Singh for two reasons firstly, because the delay, in
the making of the First Information Report, which was shown to have been lodged
on the- next day i.e. to say 25-10-1965 at 11.30 a.m.
982 at Police Station Ghanaur in' District
Patiala at a distance of only 1-1/2 miles from village Burki where the
occurrence was shown to have taken placed and, secondly, because both Rain
Singh and Gardial Singh "are said to have been empty handed at the time of
the occurrence "and to neither of whom any injuries are attributed".
It may be recalled here, that these two accused persons were only said to have
participated by giving lalkaras and saying that Sarwan Singh should not be
spared., The High Court thought that this evidence of instigation was not
enough to establish beyond reasonable 'doubt the participation' of Ram Singh
and Gurdial Singh in the assault which took place upon the injured persons.
Such allegations of participation by giving lalkaras are sometimes made only to
show additional overt acts so as to, take in at least "five persons arid
make out the ingredients of an offence under Section 147 against all of them.
When delayed lodging of the First Information Report indicated that
deliberation and consulta- tion for implication of some innocent persons with
guilty ones was possible, this distinction made by the High Court could not be
said to be unreasonable.
The High Court had, after examining the
evidence of each of the defence witnesses, emphatically rejected the unnatural
defence version as utterly unworthy of credence. It had rejected the testimony
of Kartar Singh (D.W. 2), the only alleged eye witness of the defence version,
on the ground that he stated that he had not, before he appeared to give
evidence in the witness box on 7-4-1966, disclosed anything about the incident
to anyone. It considered this statement of the Witness to be wholly unnatural.
On examining the evidence of this witness, we find that he had also stated that
he was not examined by the Police, and. presumably to explain this allegation,
he had even stated that the Police had not come to the village. Furthermore, he
had stated that Gurbux Singh (whose identity is uncertain, as there are more
than one Gurbux Singh mentioned in the evidence on record, and, for all we
know, there may be others with this name) had given a barchha blow to Chanan
Singh on his umblicus which is quite absurd as there was no injury at all on
the umblicus of Chanan Singh. The witness stated that, although Sarwan Singh,
Chanan Singh, Ralla Singh, Gurdev Singh. were all armed with lathis no blow
with lathis were given by them. His evidence does not explain the lathi
injuries of any of the injured persons at all. His statement could not,
therefore, be characterised as even an attempt to satisfactorily explain
injuries. We have no doubt, after examining his evidence. that he could not be
an eve witness of the occurrence at all. The remaining defence witnesses,
Gurbux Singh (D.W. 1). Babu Singh (D W. 3). and Vishnu Sarut) (D W. 4), either
made statements based on hear-say or attempted to prove the highly unnatural
alleged agreement or compromise between 983 Sarwan Singh whose condition,
disclosed by medical evidence, was such that he could not be in 'a position to
say much about anything for several days let alone enter into negotiations and
compromise. We have, therefore, no doubt in our minds that the High Court was
quite right in completely rejecting the defence Version which could not even
pass muster as a possible explanation, for whatever it may be worth, as the
learned Sessions Judge wrongly seemed to think that it could.
We have only disposed of the defence version
first because the learned Counsel for the appellants, placed it in the
forefront and tried to convince us that it was not as.
incredible as the High Court thought it to
be. Learned Counsel for the appellants asserted that truth is stranger than
fiction. We think that, at any rate in appraising evidence led in law Courts,
such an assumption would be extremely hazardous one to adopt. If it were
adopted it would introduce an illegal criterion for appraising evidence.
Section 3 of the Indian Evidence Act enables a Court to employ only the
standards of a prudent man in judging what is to be deemed to be proved
according to law.
And, Section 114 of the Evidence Act enables
Courts to presume only that which accords with the ordinary,. course of events
and human nature and not what would be an aberration from such a course.
Indeed, if such a principle was to be applied in judging some of the features
of the prosecution case before us, which are assailed by the learned Counsel
for the appellants, these features will appear to be more and not less
credible. The degree which proof must reach before a Court trying a criminal
case will convict is no doubt that which a prudent man will employ in reaching
a conclusion beyond reasonable doubt whereas an accused need not prove his case
to the same extent in order to succeed. But, the standards employed in judging
each version are those of a reasonable and prudent man. Such a man can only
adopt what is natural to expect and what accords with common sense and ordinary
experience but not what is extraordinary and unexpected as a reliable test of
credibility of witnesses.
The approach of the learned Sessions Judge to
the whole case seems to us to have been affected by an overemphasis of minor
points emerging from evidence in the case which were magnified into major
defects of the prosecution case.
Perhaps there is no uniform method of
arriving at correct or at least satisfactory conclusions upon veracity of
versions placed before the Court which can be applied to all cases.
It may be possible to decide many cases by
determining the main or crucial point on which the decision of the case one way
or the other may turn. In other cases, where many disputable points,are
involved none of which is conclusive, a more elaborate and comprehensive
treatment of the 984 various points involved in the, whole case may became
necessary. Courts have however to attempt to separate the "chaff from the
grain" in every case. They cannot abandon this attempt on the ground that:
the case is baffling unless the evidence' is really so confusing or conflicting
that the process cannot be reasonably Carried out. The method to be employed in
making this attempt was stated as follows by one of us (Beg, J.) in Chet Ram v.
State(1);
" Courts, in search of the core of
truth, have to beware of-being misled by half truths or Individually defective
pieces of evidence.
Firstly, undeniable facts and circumstances
should be examined. Secondly, the pattern of the case thus revealed in the
context of a whole sequence of proved facts, must be scrutinized to determine
whether a natural, or probable and, therefore, a credible course of events is
disclosed. Thirdly, the minutias of evidence, including established
discrepancies, should be put in the crucible of the whole context of an alleged
crime or occurrence and tested, particularly with reference to the proved
circumstances which generally provide a more reliable indication of truth than
the faulty human testimony' so that the process of separating the grain from
the chaff may take place. Fourthly, in arriving at an assessment of credibility
of individual witnesses, regard must be had to the possible motives for either
deliberate mendacity or subconscious bias.
Lastly, the demeanour and bearing of a
witness in Court should be carefully noticed and an appellate Court has had, in
this respect, an advantage which it does not possess".
It seems to us that the High Court had
undoubtedly corrected erroneous approach of the learned Sessions Judge by
pointing out obvious answers to the points which the learned Session, s Judge
Seemed to regard as riddles incapable of solution.
For example, the delay in lodging the First
Information Report, although suspicious, could certainly be satisfactorily
explained by the fact that the stab wound in Sarwan Singh's stomach was so
,serious that his statement could not be taken for several days afterwards, Dr.
Prem Nath (P.W. 1), who examined him at 5.25 a.m. on 25-10-1965 found that a
small portion of the omen-turn was protruding from the wound, 5 c.m. X 3.5.
c.m., and the injured was found in severe pain. The only other injury on his
body was an abrasion I c.m. X I c.m. on the margin of the right ,elbow joint.
Dr. H. M. Nahar (P.W. 2), stated that the injured Temained under the effect of
morphine sulphate upto 26.10-1965, (1) [1971] (1) Simla Law Joal p. 153 @ p.
157.
985 after which his condition improved- The
abdominal injury was considered by the Doctor to be dangerous to life. Another
injured person Chanan Singh (P.W., 8)whose brother was said to have filed a
Civil suit against Nand Singh, the, father.
of Garib 'Singh appellant, and Jaimal Singh,
brother of Gurdial accused, was not shown to be connected with Sarwan Singh,
Indeed, as already mentioned above, the suggestion of the defence was- that he
had come to the scene with persons opposed to Sarwan Singh. He had an oblique
incised penetrating wound 1 1/2 " * 3/4 " X 4" on the right side
of his chest and a swelling on the left, elbow. Just as Sarwan Singh was taken
in a cart to Patiala after the occurrence, he had been taken to Rajpura
alongwith Rallar singh (P.W.10) who had received three simple injuries with
blunt weapon. Gurdev Singh (P.W. 9), who had received two contusion and a faint
contusion with blunt weapons had also gone with Chanan Singh and Ralla Singh to
Rajpura, where they were all medically examined. It, therefore, appears that
the injured were, quite naturally, more concerned with getting their injuries
attended to than with lodging a report immediately at the nearest Police
Station. The High Court had in these circumstances, not given undue importance
to the delay in the lodging of a First Information Report on 25-10-1965 signed
by Chanan Singh.
The learned Sessions Judge had used another
fact against the prosecution without looking at the obviously. good answer to
it foundin the evidence. This fact was that, on: 1 25-130-1965 at 8.30 a.m.
Head Constable Kartar Singh (P.W.14) had been giventhe injury reports and the
First Information Report signed by Chanan Singh, when Gurdev Singh met him but
did not tell him that he had himself witnessed the occurrence. Kartar Singh
(P.W. 14), had said that he had waited-to ascertain facts from Chanan Singh
himself, who was lying injured in a hospital at Rajpura, before sending the
First Information Report to the Police State so that the case may be registered.
In these circumstances, we, think that the High Court was quite- right in not
using some.
delay in the lodging of the First Information
Report," in the same way as the learned Sessions Judge had done it. The
High Court used it, no doubt, as one of the grounds, for finding' allegations
against the alleged instigators as possible exaggerations but it had not,
doubted the bona fides of the whole prosecution case on this ground.
Another fact which had-impressed the trial
court very much was the failure of the Police to find any, marks of- blood on
the path in front of the house of Ram Singh where the occurrence was shown to,
have taken place. It had to be remembered that there Were only two injuries one
on the, body of Sarwan Singh and another on the body of Chanan Singh, which
could bleed and that 986 the blood would first get soaked in the clothes of the
injured. Morer, by the time the police had come to the, spot next day quite a
number of people and- vehicles may have passed to and fro over the path. After
the occurrence, even during the preceding night, which was that of Diwali, a
number of persons must have passed over the path. Hence the failure of the
police to find any blood in front of the house of Ram Singh was also not so
inexplicable as the learned Sessions Judge seems to have thou lit it to be.'
Another feature on which considerable emphasis was placed, in the course of
arguments before us, was that Garib Singh appellant was alleged to have
inflicted the most serious injury of all in this case, on the abdomen of Sarwan
Singh, when this accused was an important witness of the case of Sarwan Singh
against Ram Singh and Bhagat Singh who had challenged the adoption of Sarwan
Singh. Garib Singh was said to be a witness of the adoption deed put forward by
Sarwan Singh. It Was, therefore, Contended that Sarwan Singh would not have
liked to displease Garib Singh. It was also urged that there was no, reason why
Garib Singh should take it into his head to suddenly attack Sarwan Singh, whose
alleged adoption deed had been witnessed by him. This may appear to be a
somewhat peculiar feature in the case. But we have no evidence before us to
show what Garib Singh was doing in the' company of Ram Singh and Bhagat Singh.
It is not inconceivable that either these two told him something to put him
against Sarwan Singh, or, Sarwan Singh, finding him in the corn pany of his
adversaries, had said something.
Garib Singh, who denied participation in the
occurrence, could not be expected to say What had incensed him. We think that
the High Court had taken a correct and reasonable view in holding that, unless
Garib Singh had actually caused the injury to Sarwan Singh, it would be most
unnatural for Sarwan Singh, situated as he was in his litigation with Ram Singh
and Bhagat Singh, to make such an allegation against Garib Singh. This
inference was far more natural and reasonable than that Garib Singh was falsely
implicated by all the witnesses simply to oblige Chanan Singh.
An overall consideration of all the facts and
circumstances in the case, the important features of which have been noticed by
us, and a reading of the Judgments of the Sessions Judge as well as of the High
Court have led us to the conclusion that, whatever error there was in the
approach of the learned Sessions Judge in appraising the worth of the
prosecution and defence versions, was rectified by the High Court. We are of
opinion that those features of the case to which the learned, Sessions Judge
had attached disproponate importance were put in their proper perspective by
the High Court We, therefore, do not think that this is a fit case for 987
interference by this Court in this appeal by special leave with the view of the
High Court about the substantial truthfulness of the prosecution case and the
utter incredibility of the defence version.
There is, however, one essential aspect of
the case which seems to have escaped the attention of the High Court. It is
that the whole pattern of the case indicates that there was very little likely
hood of any pre-concert. The High Court had itself rejected the version that
Ram Singh and Gurdial Singh had instigated and said that Sarwan Singh should
not be spared. If this instigation was there and had been acted upon Sarwan
Singh would have received many more injuries. The nature of the injuries,
proved by the medical evidence, indicated unmistakably that the occurrence was
a short and sudden affair. Such a short and sudden occurrence could take place
on the evening of Diwali at a chance meeting when Sarwan Singh found Garib
Singh in the company of his adversaries, Ram Singh and Bhagat Singh. It is
possible that something was said to Garib Singh either by Sarwan Singh when he
found him in, the company of his adversaries, or, before that, by Ram Singh and
Bhagat Singh which impelled Garib Singh to attack Sarwan Singh., These,
however, are matters of pure conjecture. Nevertheless, taking the totality of
facts and circumstances particularly the nature of injuries, the Diwali night,
and the place of occurrente on a public thoroughfare, into account, we are
inclined to believe that the pattern of the case was not that of a pre-planned
attack.
There was some force in the submission, which
was noticed by the Sessions Judge, that a pre-planned attack was more likely to
have taken place elsewhere and not on a public thoroughfare in front of the
house of Ram Singh. The learned Counsel for the appellant also submitted that
Ram Singh and his associates were not likely to know the time at which. Sarwan
Singh would pass Ram Singh's house that evening. The prosecution evidence is
that Sarwan Singh was going to untie his cattle. It is possible that it was
known in the village that Sarwan Singh passed the house of Ram Singh at that
time every evening, but there was no evidence led to show that this was so and
that, therefore, the accused were waiting for him to come. Mere carrying of
spears which is not unusual for Sikhs, would not establish pre-planning.
A consideration of the above mentioned
aspect, which was not discussed by the High Court, leads us to the conclusion
that this was not a case in which Section 34 Indian Penal Code, for which there
was not even a charge framed against the appellants, could be applied so
unhesitatingly as the High Court had done. It would have been possible to apply
it even though no, charge was 988 framed for it if the evidence establishing it
had been clear and free from doubt.
We may also mention the two cases cited
before us to contend that the High Court should not have interfered at all with
the appraisal of evidence by the trial Court. These were :
Khedu Mohton & Ors. v. State of Bihar(1),
and Laxman Kalu Nikalje v. The State of Maharashtra (2 ) .
In Khedu Mohton's case(3), an appellate court
had set aside the conviction of the accused persons on certain grounds
including that the four eye witnesses of the alleged occurrence were unreliable
because they were interested persons. The High Court had interfered with an
acquittal by an appellate Court. This Court had said, with regard to the
conclusion reached in that particular case by the acquitting Judge :
" Unless the conclusions reached by him
are palpably wrong or based on erroneous view of the law or that his decision
is likely to result in grave injustice, the High Court should be reluctant to
interfere with his conclusions. If two reasonable conclusions can be reached on
the basis of the evidence on record then the view in support of the acquittal
of the accused should be preferred.
The fact that the High Court is inclined to
take a different view of the evidence on record is not sufficient to interfere
with the order of acquittal".
We think that the present case is
distinguishable from that case in as much as the approach of the Trial Court,
in the case before us, shows that it was misled by attaching undue importance
to individual features of the case which had been viewed in their correct
perspective by the High Court. The Trial Court had ignored the very important
fact that it is contrary to the ordinary course of human nature for injured
persons, without showing strong grounds for it, to omit the names of their
actual assailants and to substitute wrong persons in their places. Implication
of the innocent with guilty ones is more easily credible than a wholesale
substitution, out of enmity, of the innocent for the actual assailants, Such
quick substitution was not, for the reasons already mentioned, conceivable in
the present case. As we have already indicated, the High Court, in the case
before us, had confected an error in the approach and in the reasoning of the
Sessions Judge rather than upset the findings of the Sessions' Judge or the
credibility of witnessess at the trial. The trial Court had not held that the
injured eye witnesses could not be believed. It had not weighed evidence so
much as given a catalogue of reasons for suspecting the prosecution case
without considering what (1) [1971] S.C.R. 839 @ 840-841.
(2) [1968] (3) S.C.R. 685.
989 could be said in Answer. Appraisement
involves ,weighing of one set of facts or inferences from them against the
opposite one fairly and reasonably.
In Laxman Kalu Nikalje's case(1) it was laid
down by Court at page 688 "We may say here that it is now the settled law
that the powers of the High Court in an appeal against the acquittal are not
different from the powers of the same court in hearing an appeal against a
conviction. The High Court in dealing with such an appeal can go into all
questions Of fact and law and reach its own conclusions on evidence provided it
pays due regard to the fact that the matter had been before the Court of
Sessions and the Sessions Judge had the chance and opportunity of seeing the
witnesses depose to the facts.
Further the High Court in reversing the
judgment of the Sessions Judge must pay due regard to all the reasons given by
the Sessions Judge for disbelieving a particular witness and must attempt to
dispel those reasons effectively before taking a contrary view of the matter.
It may also be pointed out that an accused starts with a presumption of
innocence when lie is put up; for trial and his acquittal in no sense weakens
that presumption, and this presumption must also receive adequate consideration
from the High Court." We think that the principles laid down above by this
Court were applied by the High Court in dealing with the case before us. It had
not set aside, as already indicated, the verdict of a Court of trial based upon
the special advantage it derives from watching witnesses depose.
As we have already observed, we think that
the High Court had erred in applying Section 34 Indian Penal Code to the facts
and circumstances of the case before us. As we are satisfied that the
occurrence which led to the prosecution of the appellants must have arisen out
of a sudden quarrel over some exchange of words in circumstances which have not
been brought out by the evidence in the case, we are unable to hold the
appellants guilty of any offence with the aid of Section 34 Indian Penal Code.
We, therefore, set aside the convictions and sentences of Garib Singh under
Section 324/34 and 323/34 Indian Penal Code but we maintain his conviction
under Section 307, and, in the special circumstances of this case, reduce his
sentence to three years rigorous imprisonment from five years rigorous
imprisonment. We also set aside the convictions and sentences of the appellant
Bhagat Singh under Section 307/34 and 324/34 Indian Penal (1) [1968] 2 S. C. R.
685.
17-1061Sup Cl/72 990 Code, but maintain his
conviction under Section 323 indian Penal Code and sentence of three months
rigorous imprisonment for that offence. As regards Mohinder Singh appellant, a
youngster who was bound to have been misguided by the example of older people
and against whom no previous conviction is disclosed, while setting aside his
conviction and sentence under Section 307/34 and 323/34 Indian Penal Code, we
maintain his conviction under Section 324, Indian Penal Code, but reduce his
sentence under Section 324 India Penal Code to the period already undergone.
This appeal is partly allowed to the extent
indicated above.
G.C. Appeal allowed in part.
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