State of Punjab Vs. Hari Singh & ANR
[1974] INSC 65 (21 March 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 1168
CITATOR INFO:
RF 1975 SC2001 (20) MV 1982 SC1325 (69)
ACT:
Indian Penal Code--S.302, 307 read with S.
34--Murder--When the evidence of eye witnesses who were related to each other
and the victims could be relied upon.
HEADNOTE:
The trial court had convicted the respondents
u/S. 302/34 I.P.C. and u/s. 307/34 I.P.c. for the death of two persons- G&Z.
The occurrence took place during the night between 18th & 19th June, 1969.
The victims used to cultivate jointly with others. The respondents and the two
acquitted accused persons were brothers who lived in the same village.
It is said that there was enmity between the
deceased persons and the respondents. The prosecution case was that on the of
18th June 1969, the respondents with two others attacked G&Z and as result
G died but Z survived.
The trial court had convicted the respondents
but the High Court acquitted them. I On appeal by the State, the main question
was whether the three alleged eye-witnesses, P.W.3, P.W.4 & P.W.5 who were
related to each other and the victims could be relied upon, when corroborated
by other facts and circumstances.
Allowing the appeal,
HELD :-(1) It is a principle, common to all
criminal appeals by special leave that this Court will refrain from
substituting its own views about the appreciation of evidence if the judgment
of the High Court is based on one of two alternative views each of which was
reasonably open to the High Court to accept. If however, the High Court’s
approach is vitiated by some basically erroneous assumptions, or it adopts
reasoning which, on the face of it is unsound, it may become the duty of this
Court, to prevent a miscarriage of justice and to interfere with an order
whether it be of conviction or of acquittal.[729F] (2) In the present case, the
trial court had accepted the testimony of 3 eye witnesses, despite the fact
that they are relations of the victims. It has been repeatedly held by this
Court that the mere fact that witness is related to the victim could not be a
good enough ground for rejecting his testimony although it may be a ground for
scrutinizing his evidence more critically and carefully where facts and
circumstances disclose that only relations have been produced and others,
presumably independent witness", who were available, were not produced.
[729 H] The ordinary presumption is that a witness speaking under an oath Is
truthful unless and until he is shown to be unreliable or untruthful. In any
particular respect, witnesses solemnly deposing on oath in the witness box
during a trial upon a grave charge of murder, must be presumed to act with a
full sense of responsibility of the consequences of what they state. it may be
that what they say is so' very unlikely or unreasonable that it is safer not to
act upon it or even to disbelieve them. [730 F] In the present case, the
evidence of Z who became unconscious due to fatal blows by the assailants can
be accepted when his evidence is strongly corroborated by medical and other
evidence. 'Therefore, the present case is a fit case where this court will
interefere.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 213 of 1970.
Appeal by special leave from the judgment and
order dated the 17th June, 1970 of the Punjab and Haryana High Court at
Chandigarh in Criminal Appeal No.258 of 1970.
726 Harbans Singh, for the appellant.
Nuruddin Ahmed and U. P. Singh, for the
respondents.
The Judgment of the Court was delivered by
BEG, J. The State of Panjab ha contained special leave to appeal against the
judgment of the High Court of Punjab and Haryana, acquitting the two
respondents from charges under Sections 302 and 302/34 Indian Penal Code and
under Sections 307/34 Indian. Penal Code. The Trial Court had convicted the
respondents under each of these two sections and sentenced Hari Singh to death
under Section 302 Indian Penal Code and Gian Singh to life imprisonment under
sections 302/34 I.P.C., and it had sentenced both to six years rigorous
imprisonment and to pay a fine of Rs. 2,000/-, and, in default of payment of
fine, to undergo further rigorous imprisonment for two years under Sections
307/34 I.P.C.
The occurrence which gave rise to the
prosecution of the two respondents together with two others, Milkiat Singh and
Dalip Singh, who were acquitted by the Trial Court, took place during the night
between 18th and 19th June, 1969.
The victims, Gian Singh, deceased, and his
nephew, Zora Singh, P.W. 3, cultivated lands jointly with Bachan Singh, P.W. 5,
his son Mukhtiar Singh, his two brothers Gian Singh and Sarwan Singh, and,
Surjit Singh, P.W. 4, and Jagjit Singh, the brothers of Zora Singh and sons of
Sarwan Singh.
All of them also lived together in village
Dhandri Kalan.
The respondents and the acquitted accused
persons are brothers who also lived in village Dhandri Kalan in District
Ludhiana. It is said that there had been a fight between Hari Singh,
respondent, and Gian Singh deceased in 1968 which had been settled by the
Panchayat. In 1969, sometime before the occurrence, another incident is said to
have taken place. Jagjit Singh and Mukhtiar Singh, by show of force, were said
to have carried away some "toori' in a cart to their house against the
wishes of Hari Singh, respondent, and another person in his company. Un
doubtedly, the motive disclosed was not be strong enough for a murderous
assault of a rather brutal kind on Gian Singh and Zora Singh. This, however, is
immaterial if the alleged eye-witnesses of the occurrence could be relied upon
to establish the prosecution case. The whole question before the Courts was
whether the three alleged eye witnesses, Zora Singh, P.W. 3, and Surjit Singh,
P.W. 4, and Bachan Singh, P.W. 5, who are related to each other and the
victims, as stated above could be relied upon, when corroborated by other facts
and circumstances which may appear in the case, to sustain the conviction, The
prosecution case was that Gian Singh and Zora Singh had gone to their field for
watering their sugarcane crop in it on the evening of 18th June, 1969. At about
9 p.m. Bachan Singh, P.W. 5, and Surjit Singh, P.W. 4, are said to have carried
the meals for Gian, Singh and Zora Singh, who were at their field situated
about "100 karams' (nearly 100 paces) away from their tubewell, which was,
as is usual, lit up by electric light. After that, Gian Singh and Zora Singh
went to sleep a few feet from each other at their tubewell while Bachan Singh
and Surjit Singh are said to have stayed on at the sugarcane 727 field nearby.
At about mid night, Zora Singh is said to have got up to urinate, and to have
just laid himself down on his cot after urinating. when he saw the respondents
and Milkiat Singh and Dalip Singh Arrive. with their weapons.
Hari Singh is said to have struck his kirpan
on the neck of Gian Singh, deceased, and Milkiat Singh is said to have struck
Zora Singh on the right arm with his Gandasa, whereupon Zora Singh raised an
alarm. All the four assailants then gave blows to the deceased and Zora Singh
who had cried out: "Marditta-Marditta". Bachan Singh, P.W.
4, and Surjit Singh, P.W. 4, rushed to their,
aid and alleged having seen the attack and the assailants running away. They
found Zora Singh unconscious when they came near him. Gian Singh and Zora Singh
were removed to a Hospital in Ludhiana, where Gian Singh died at 5.45 a.m. The
condition of Gian Singh, which was not such as to enable him to make a dying
declaration, was described as follows "B.P. was not recordable. Pulse
60/mt. fuble, unconscious, Gasping cynotic. Pupils constricted', Reacting
Slugishly to light.
There was 8"x4" wound on the left
side of the neck cutting deep to the muscles. The trachea was cut almost
through and through and be was breathing through the hole of the trachea.
Hyoid bone was lying exposed in the wound.
Could not feel the left carotid artery. No
bleeding was present when patient was brought to the hospital".
Zora Singh who survived had the following
injuries :
1. An incised wound 3"x1/2"x2-1/2"
on the inner side of left hand and was cutting the 5th and 4th matacarpals
completely.
2. Incised wound 1/2"x 1/6"x flesh
deep on the inner side of left wrist.
3. Incised wound. 5" x 1" x 2"
deep on the outer side of left hand and was chopping off the thumb completely
from the hand.
4. Incised wound 6"x1/4"x flesh
deep back of left forearm lower part.
5. Incised wound 4" x 1" x 2"
deep on the right side of the face and the middle of the lower part of the nose
and was cutting it and the right side of the upper jaw partially.
6. Inside wound 3" X 1/2"X
l-1/2" deep on the upper part of the back of right side of the neck and
was cutting the, spine bone partially.
7. Incised wound 4"x 1"x 3"
deep on the back of right elbow and was cutting the ulna bone completely and
the forearm was hang ing just with a flesh." A First Information Report of
this occurrence was lodged at 5.15 a.m. at Police Station Sadar, Ludhiana, at a
distance of 7 miles from village Dhandri Kalan, disclosing offences punishable
under Sections 307 and 326 Indian Penal Code only as Gian Singh was still
alive, at 728 that time. It was stated in the F.I.R. that the respondents were
recognised and that two other unknown assailants, who were young Sikhs, could
be identified if produced before the witnesses.
Surjit Singh, P.W. 4, the maker of the
F.I.R., upon cross- examination denied that he had been tutored to state that
he could not identify the two of the assailants as they had their backs towards
him. He had stated in the F.I.R. that they were youngmen although Milkiat
Singh, aged 53, and Dalip Singh, aged 46, years were not so young. He had also
stated there that he could identify the two youngmen thereby implying that he
had seen them properly. He had stated in his evidence that one or two bighas of
sugarcane can be irrigated in an hour by their Tubewell. Watering was said to
have commenced at' p.m. and Zora Singh, P.W. 3, had stated that only 4 bighas
of the field had to be watered.
The High Court, therefore, did not think it likely
that either Bachan Singh or Surjit Singh would still remain at the Sugarcane
field or be awake at the time when the occurrence took place. Moreover, the
High Court thought that both Bachan Singh and Surjit Singh were too far away,
at abount 100 karams, to be able to reach in time to see the occurrence.
Bachan Singh, P.W.5, had supported the
statement of Surjit Singh, P.W.4, that he ran up to help the attacked persons
after hearing Zora Singh Shouting: "Marditta-Marditta". He said that
he saw the assailants from a distance of 15 karams. He also said that Hari
Singh was using his kirpan to attack and that the other assailants had used
their gandasas. On cross-examination, this witness also stated that he could
not recognise the companions of Hari Singh and Gian Singh as they had their
backs towards him, although it was proved that he had stated before the Police
that the unidentified persons were young Sikhs with Gandasas whom he could
identify if produced before him.
The High Court had found some difficulty in
getting over the statement of Zora Singh, P.W. 3. It had observed that Zora
Singh, aged only about 16 years, would have tried to run away as soon as he saw
four assailants by electric light attacking Gian Singh only at a distance of 10
feet, if he was really awake. It had also opened that he would have cried out
earlier-than the moment of time when he received the injury on his right arm if
he was actually awake when the assault on Gian Singh, deceased, took place. It
was not disposed to rely upon the statement of Zora Singh that he was lying
awake because he had got up to urinate 5 minutes before the occurrence as this
appeared to it to be an improvement upon his previous statement. Zora Singh, on
cross-examination, had explained that he had not stated this earlier as he was
not questioned about it. The High Court had doubted the veracity of Zora Singh
because he disclaimed knowledge that Milkiat Singh and Dalip Singh were
employed in the Air Force although their fields adjoined his own fields. The High
Court thought that it was likely that Zora Singh would have become unconscious
after receiving injuries before he could recognise his assailants. The High
Court had also attached importance to the fact that no special report of the
occurrence was proved to have been sent to a Magistrate. It has considered the
explanation that this was due to the fact that the F.I.R. disclosed only
offences punishable under Sections 307 and 326 I.P.C. to be insuffi- 729 cient
to explain this omission. After relying upon the State of Punjab(1) that the
prcsecution must traverse the whole gap between "what may be true"
and "what must be true" before a conviction could be recorded in a
criminal case, the High Court had given the respondents the benefit of doubt
and acquitted them.
The Trial Court, on the other hand, which had
the additional advantage of seeing the witnesses depose in the witness box, was
impressed by the evidence of the, three alleged eye witnesses and had convicted
the respondents. It had not relied upon the alleged recoveries by Hardit Singh,
Sub- Inspector, P.W.8, of a kirpan on 28th June, 1969, from a straw-bin at a
tube well at the instance of Hari Singh and a gandasa on the roof of a tubewell
at the instance of Gian Singh. Both the weapons were proved to be stained with
human blood. As the recovery was shown to have taken place 4 days after the
arrest of the respondents, the Trial Court thought that it must have resulted
from the use of 3rd degree methods during the interrogation of the accused. The
Trial Court had also considered it unsafe to rely upon the sole testimony
&the Investigating Officer on this question when other witnesses of the.
recovery were not produced for some unexplained reason. The Trial Court, had,
however, relied upon the circumstance that the respondents could not be found
when searched in their village and could only be arrested several days later.
'The question raised before us is: should we,
even if we do not entirely agree with the reasoning of the High Court,
substitute our own views and reverse an order of acquittal Vaidyanatha Iyer(2)
to point out that this Courts power of interference under Article 136 of the
Constitution with Judgments of acquittal is not exercised on principles which
are different from those adopted by it in dealing with convictions. It is a
principle, common to all criminal appeals by special leave, that this Court
will retrain from substituting its own views about the appreciation of evidence
if the judgment of the High Court is based on one of two alternative views each
of which was reasonably open to the High Court to accept. If, however, the High
Court's approach is vitiated by some basically errcneous apparent assumption or
it adopts reasoning which, on the face of it, is unsound, it may- become the duty
of this Court, to prevent a miscarriage of justice, to interfere with an order
whether it be of conviction or of acquittal.
In the case before us, the Trial Court, which
had the additional advantage of seeing the witnesses depose in the witness box,
had accepted the testimony of the three eye witnesses, despite the fact that
they are relations of the victims. It has been repeatedly held by this Court
that the mere fact that a witness is related to the victim could not be a good
enough ground for rejecting his testimony although it may be a ground for
scrutinizing his evidence more critically and carefully where facts and
circumstances disclose that only relations have been produced and others,
presumably independent witnesses, who were available, were not produced. In
the. instant case, there is no evidence that anyone (2) 1958 SCR 580 (1) AIR
1957 SC 637.
730 besides the witnesses produced had
actually witnessed the attack upon Gian Singh and Zora Singh.
The High Court's reasons for doubting the
correctness of some of 'the statements of Surjit Singh, P.W. 4, and Bachan
Singh, P.W. 5, as, for instance, that they had actually failed to recognise
Milkiat Singh and Dalip Singh because they had their backs towards them when
these very witnesses had asserted before the police that the two other parti-
cipants were youngmen who could be identified by them, if produced before them,
are quite sound and reasonable. If, however, a false implication was really
intended and the F.I.R. was the result of some conspiracy, there was no reason
to omit the names, of Milkiat Singh and Dalip Singh, the two brothers of the
respondents, from the F.I.R. The prosecution had an explanation for this
omission. This was that Zora Singh, who had seen and recognised these two
accused persons had become unconscious before their names could be communicated
to 'Surjit Singh. The High Court had itself accepted the evidence that Zora
Singh had actually become unconscious. In fact, it had gone to the extent of
holding, that he must have become unconscious even before he recognised any of
the assailants. On the last mentioned point, we certainly do not find it,
possible to accept the view adopted by the High Court.
It is in dealing with the evidence of Zora
Singh, P.W. 3, that the High Court seems to us to have adopted a patently
erroneous approach and to have given grounds which do not appear to us to be
reasonably sustainable. The High Court seems to have assumed that Zora Singh
must have invented the story that he had got up to, urinate so that he may pose
as an eye witness of the occurrence.
The ordinary presumption is that a witness
speaking under an oath is truthful unless and until he is shown to be
untruthful or unreliable in: any particular respect. The High Court, reversing
this approach, seems to us to have assumed that witnesses are untruthful unless
it is proved that they are telling the truth. Witnesses, solemnly deposing on
oath in the witness box during a trial upon a grave charge of murder, must be
presumed to act with a full sense of responsibility of the consequences ,of
what they state. It may be that what they say is so very unlikely or unnatural
or unreasonable that it is safer not to act upon it or even to disbelieve them.
The High Court bad no, doubt tried to show that this was the position with
regard to the whole of the testimony of Zora .Singh. But, we do not think that
it was successful.
It is true that the statement of a witness
that he had got up to urinate just before a murder was committed, so that he
could witness the murder, looks suspicious. But, the statement is not, for that
reason necessarily untrue.
Again, if, as , the High Court believed, both
Gian Singh and Zora Singh were attacked almost simultaneously, its view, that
Zora Singh would have got up and Tun away or shouted earlier than he was
attacked had he been really awake, is unreasonable.
Let us, however, assume, for the sake of
argument, that the High Court's guess is correct that Zora Singh was actually
asleep when the 731 attack upon Gian Singh and the Zora, Singh. began. Even
then it would be quite unreasonable to and hold, as. the, High Court. did that
Zora Singh must have become unconscious before he could see and recognise his
assailants. There was the fight of the electricity at the tubewell where Zora
Singh lay on. his bed whether asleep or awake. Zora Singh must have necessarily
got up at, least when he was, struck on the arm. He could not have avoided
seeing and then recognising his assailants, whom he knew very well before he
became unconscious. His account, that he was struck first on the arm and then
hecried out, is corroborated by the fact that other injuries indicate that. his
face and jaw were aimed at and struck probably in an attempt. to silence him.
The injuries were of such a nature that he
must have been awakened, shouted, writhed in pain., and seen the assailants
before he became unconscious. The absolutely unacceptable guess work indulged
in by the High Court, that Zora Singh must have become unconscious before he
could see and recognise his assailants, is utterly unsupported by evidence and
seems very unreasonable.
Even if other parts of his evidence are, for
some reason, not accepted, Zora Singhs statement that he saw and recognised
assailants, before, he became unconscious cannot be held to be capable of
arousing doubts. There is no evidence that the assailants covered him up with a
blanket or a cloth, so as to disable him from seeing them, before.
attacking him. If we accept this part of the
evidence of Zora Singh, as we think we must, since it is so strongly
corroborated by the medical' evidence and there is nothing on record which
conflicts with this inference, it becomes evident that he must have shouted for
help. If that be so, it is difficult to understand why Surjit Singh and Bachan
Singh would, not go to his rescue as they naturally would on hearing shouts
even if they were at some distance. We think that, judging from the number of
injuries on the two victims, the incident must have lasted long enough to
enable Surjit Singh, P.W. 4, and Bachan Singh, P.W. 5, to rush towards the
scene of occurrence and to see and recognise at least the escaping assailants.
It is possible that they may have exaggerated in stating that they actually saw
the attack on both the victims. But that would not be enough to discard the
whole of their testimony on the ground that they were not likely to be present
at their field nearby at the time of the attack. There is no evidence to
suggest that they were elsewhere at the time. Indeed, the fact that they
arranged for the transport of the victims to a hospital' in Ludhiana and took
them there before day-break shows that they were there to be able to do all
this. We do not think that the reasons given for suspecting their presence near
enough from the tubewell. at their sugarcane field, are strong enough to make
it incredible that they should come to the help of the two attacked persons and
to see at least the escaping assailants out of whom they recognised two.
As human testimony, resulting from widely
different powers of observation and description, is necessarily faulty and even
truthfull witnesses not infrequently exaggerate or imagine or tell half truths.
the Courts must try to extract and separate the hard core of truth from the
whole evidence.
This is what is meant by the proverbial
saying 732 that Courts must separate "the chaff from the grain".'
'If, after considering the whole mass of evidence, a residue of acceptable
truth is established by the prosecution beyond any reasonable doubt the Courts
are bound. to give effect to the result flowing from it and not throw it
overboard on purely hypothetical and conjectural grounds. In so far as the
grounds given for rejecting the evidence of Zora Singh appear to us to be
patently unreasonable and highly conjectural, we think that the case before us
calls for interference by this Court. That evidence, as we have already pointed
out, is corroborated by medical evidence as well as by the statements of Surjit
Singh and Bachan Singh.
Hence, although, the statements of Bachan
Singh and Surjit Singh, taken by themselves, may not have been enough to
warrant the conviction of the respondents, yet, when the evidence of Zora
Singh, strongly corroborated by medical evidence is there, we think that the
statements of Surjit Singh & Bachan Singh could be used to support the
conclusion thus reached without going to the extent of holding that Surjit
Singh and Bachan Singh must be wholly believed before their evidence could
serve any useful purpose at all as the High Court seems to have erroneously
thought. Indeed, it is very difficult to find a witness whose evidence is so
flawless that it has to be wholly, completely and, unqualifiedly accepted. We
think that the High Court had, without saying so, ignored the principle repeatedly
laid down by this Court in appraising evidence, that Courts do not, in this
country, act on the maxim : "falsus in uno falsus in omnibus". In
considering the effect of each allegation proved to be incorrect or the
likelihood of its being true or untrue, we have to view it in the light of a
whole setting or concatenation of facts in each particular case.
There may be reasons for doubting the, worth
of the evidence of recovery from the respondents, but, that does not mean that
the evidence given by Hardit Singh, S.I., P.W.8, relating to recoveries, is
necessarily false so that the investigation itself is tainted. Similarly, the
more fact that, after the lodging of the F.I.R., the necessary precaution of
sending the special report to a Magistrate speedily was not shown by the
prosecution to have been observed does not mean that the whole, prosecution
case is false or unacceptable. On the other hand, the fact that the F.I.R.
discloses only offences punishable under Sections 307 and 326 I.P.C. indicates
that it must have been lodged before,6. a.m. In any event, before the Inquest
report on the morning of 19-6-1969, the police had before it then prosecution
version contained in the F.I.R. to which a reference is made in the Inquest
report. The statements of Bachan Singh and Surjit Singh were also recorded
before that. Therefore, the alleged suspected delay in the lodging of the
F.I.R. or in sending a special report to a Magistrate do not, on the facts of
this case, indicate an attempt to conspire and fabricate. Indeed, if this was
so, as already observed, one would have expected to find the names of Milkiat
Singh and Dalip Singh also in the F.I.R. instead of a description given of the
unidentified youngmen which did not fit these two acquitted accused persons who
were, therefore, given the benefit of doubt. This feature of the evidence
indicates that the names of these two accused were introduced in the case only
after Zora Singh had regained consciousness and revealed them as the pro- 733
secution alleged. Hence, it is likely that the F.I.R. must have been made soon
enough to contain the earliest version before Zora Singh's version could get
into it after he regained consciouness.
We think that the High Court had missed the
core of truth in the case and had unjustifiably rejected the prosecution case
which was strong enough on the statement of Zora Singh alone corroborated by
medical evidence. It had, we think, made the error of throwing away the
prosecution case, without attempting to separate the chaff from the grain on
the wrong assumption that the two were inseparable here. We, therefore, set
aside the order of acquittal by the High Court and convict the respondents for
the offences with which they were charged. As, however, the occurrence took
place several years ago, we refrain from awarding a death sentence in this
case. We sentence both Hari Singh respondent u/s 302 I.P.C. and Gian Singh
respondent sons of Arjan Singh to life imprisonment under Sections 302/34
I.P.C. We also sentence each of them to six years rigorous imprisonment and to
pay a fine of Rs. 2,000/- each, and, in default of payment of fine, to rigorous
imprisonment for a further period of two years under Sections 307/34 I.P.C. The
sentences awarded shall run concurrently.
S.C. Appeal Allowed.
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