Dalbir Kaur & Ors Vs. State of
Punjab [1976] INSC 184 (20 August 1976)
GUPTA, A.C.
GUPTA, A.C.
FAZALALI, SYED MURTAZA
CITATION: 1977 AIR 472 1977 SCR (1) 280 1976
SCC (4) 158
CITATOR INFO:
R 1978 SC1558 (28) F 1980 SC 184 (1) D 1983
SC1081 (18)
ACT:
Constitution of India Article 136--Practice
and procedure--Whether a court of criminal appeal--Whether can interfere with
concurrent findings of fact --interference when grave and substantial
injustice.
Indian Penal Code---Section
302--Non-examination of eye witnesses--Interested witnesses--Meaning
of--Necessity of examining independent witnesses--Motive--Delay in lodging FIR
and dispatch to Magistrate--Identification parade, necessity of.
HEADNOTE:
The deceased Ajaib Singh had two sons, Dalbir
Singh and Amir Singh. Dalbir Singh along with his wife Mrs. Dalbir Kaur and
Mrs. Dalbir Kaur's brother Ajit Singh and her cousin, Pura, n Singh were
charged with having committed the murder of Ajaib Singh and Amir Singh. A
partition had taken place between Ajaib Singh, Dalbir Singh and Amir Singh.
After the partition Dalbir Singh separated
and lived in a separate portion of the same house where as Ajaib Singh and Amir
Singh lived jointly. Mrs. Jaswant Kaur, the wife of Amir Singh had delivered a
child and, therefore, her mother Shiv Kaur was in the house to look after
Jaswant Kaur and the child. As the newly born child was not well, both Jaswant
Kaur and her mother were awake at that time and electric bulb was burning in
the courtyard. Ajaib Shingh was sleeping near the stable outside the house and
Amir Singh was sleeping in the house. All the male appellants were armed with
kitpans and Mrs. Dalbir Kaur was armed with datar. They went to the house of
Ajaib Singh at about 1.00 A.M. Dalbir Singh had altercation with his father
Ajaib Singh and expressed his dissatisfaction over the partition of the lands
and asked his father and brother to get ready to meet the consequences and to
call anybody for help if they liked. Thereupon Dalbir Singh gave a kirpan blow
on the left jaw of Ajaib Singh and Mrs. Dalbir Kaur gave a datar blow on his
right shoulder while Ajit Singh and Puran Singh gave kirpan blows on his chest.
Thereafter, the appellants proceeded to the cost
of Amir Singh who was caught hold off by Dalbir Singh and Puran Singh. Ajit
Singh gave a kirpan blow on his right leg while Mrs. Dalbir Singh gave a datar
blow on his left shoulder.
Dalbir Singh and Puran Singh thereafter
dragged Amir Singh and put him over the body of Ajaib Singh and thereafter all
the appellants caused further injuries to Amir Singh and Ajaib Singh. Both of
them died on the spot. Jaswant Kaur and Shiv Kaur raised alarm but they were
threatened to keep quiet as a result of which those two helpless ladies shut
themselves up in one of the rooms. Sometime early morning the appellants left
the house. Jaswant Kaur narrated the incident to Mukhtiar Singh and Mohinder
Singh and ultimately left with Mohinder Singh and lodged the first information
report at the police station which is about six miles away at 9.00 a.m. The
Sessions Court convicted the appellants under s. 302 of the Indian Penal Code
and sentenced the male appellants to death sentence and to the female appellant
to imprisonment for life. In appeals and confirmation proceedings, the High Court
confirmed the conviction and sentence imposed by the trial court.
In an appeal by special leave, the appellants
contended:
1. Since the special leave is granted, the
appellants are entitled to argue all the questions of law and facts.
2. The only eye-witnesses, namely, Mrs.
Jaswant Kaur and Mrs. Shiv Kaur are the interested witnesses and, therefore,
their evidence should not be accepted.
281
3. No independent witness has been examined
to prove the recoveries.
4. There was no evidence of motive for the
murder.
5. The prosecution case should be thrown out
because of the non-examination of four material witnesses, Mohinder Singh,
Dayal Singh who are alleged to have watched the assault and Mukhtiar Singh and
Mohinder Singh who went to the house after the assault was over.
6. There was delay in the lodging of the
first information report and also in its dispatch to the Magistrate.
7. Jaswant Kaur and Shiv Kaur gave graphic description
of the occurrence by detailing the nature of injuries and the parts of the body
where they were inflicted. Such a photographic description smacks of the
evidence being tainted one.
8. The case of Ajit Singh deserves special
consideration. Shiv Kaur failed to identify him at the test identification
parade and if Ajit Singh is acquitted, all the appellants would be exonerated,
since if one innocent person can be implicated there is no guarantee that
others would not be so implicated.
HELD: (1) The principles governing
interference by this Court in a criminal appeal by special leave were
summarised as follows:
(1 ) That this Court would not interfere with
the concurrent findings of fact based on pure appreciation of evidence even if
it were to take a different view on the evidence;
(2) That the Court will not normally enter
into a re-appraisement or review of the evidence, unless the assessment of the
High Court vitiated by an error of law or procedure or is based on error of
record, misreading of evidence or is inconsistent with the evidence, for
instance, where the ocular evidence is totally inconsistent with the medical
evidence and so on;
(3) That the Court would not enter into credibility
of the evidence with a view to substitute its own opinion for that of the High
Court;
(4) That the Court would interfere where the
High Court has arrived at a finding of fact in disregard of a judicial process,
principles of natural justice or a fair hearing or has acted in violation of a
mandatory provision of law or procedure resulting in serious prejudice or
injustice to the accused;
(5) This Court might also interfere where on
the proved facts wrong inferences of law have been drawn or where the
conclusions of the High Court are manifestly perverse and based on no evidence.
[290D--H] Pritam Singh v. The State [1950] SCR
453;
Mohinder Singh v. The State [1950] SCR 821;
Hem Rai v. The State of Ajmer [1954] SCR 1133; Khachera Singh v. State of Uttar
Pradesh A.I.R. [1956] S.C.
546; Saravanabhavan v. State of Madras, AIR
[1966] S.C. 1273; Piara Singh v. State of Punjab [1969] 1 SCC 379; Nargun
Sunder Das Godeia and others v. State of Rajasthan [1970] 1 SCC 794; Guli Chand
v. Stale of Rajasthan [1974] 3 SCC 698; Kaur Sain v. State of Punjab [1974] 3
S.C.C. 649; Abdul Gani v. State of Madhya Pradesh of A.I.R. [1954] SC 31;
Kanbi Nanii Virji and others v. State of
Gujarat [1970] 3 SCC 103 and Dharam Das and others v. State of U.P. [1972] 2
SCC 216, followed.
(2) Since the incident took place at midnight
inside the house, the only natural witnesses who could be present to see the
assault would be Jaswant Kaur and her mother.
The close relative who is a very natural
witness cannot be regarded as an interested witness. The term "interested
witness" postulates that the person concerned must have some direct
interest in seeing that the 282 accused person is somehow or the other
convicted either because he had some animus with the accused or for some other
reason. In the instant case there, is no evidence to indicate that either
Jaswant Kaur or Shiv Kaur bore any animus against the accused. [293A--B] Dalip
Singh and others v. State of Punjab [1954] SCR 145 and State of Punjab v. Jagir
Singh and others [1974] 3 SCC 277, followed.
The evidence of these witnesses cannot be
rejected merely on the ground that they were relatives of the deceased. They
have given a graphic description of what they saw. There is no reason to
discard the assessment of both the courts below about these two witnesses.
There is circumstantial evidence to support the intrinsic evidence given by
these two witnesses. They are the extract from the birth register proving the
birth of the son to Mrs. Jaswant Kaur. The electricity fitting in the house and
a bulb in the courtyard is proved from the sketch map and the photograph. [294
G--H, 295 A--E] (3) In the instant case the witnesses watched the occurrence
from a close distance in electric light. The assault was so disasterous and
gruesome that it must have made a definite and lasting impact on the memory of
the witnesses.
Human memory is like a memory which takes
snap shots of striking incident and then transmits the same through the words
of mouth faithfully with absolute accuracy and precision. In view of the
electric bulb burning and since the accused were fully known to the informant
Jaswant Kaur, there is nothing unusual if she gave the names and parentage of
all the a, acused persons in the F.I.R. [302 G--H, 303---A] (4) The weapons
recovered are blood stained and were recovered at the instance of the
appellants. Both the courts below have accepted the evidence of recovery. 296
[A--C] Nachhettar Singh & Others v. State of Punjab A.I.R. 1976 S.C. 351,
distinguished.
(5) The partition with which Dalbir Singh was
not satisfied was the motive for the murder. Both the courts below have found
this to be the motive. In any case, the High Court also confirmed the finding
that even if there was no motive, the offence has been established by the
evidence of the eyewitnesses. [297 A--F] (6)'In the present case, four
witnesses were not examined because two, of them were relatives of Dalbir Singh
and two were won over by the accused according to the prosecution and were not
likely to speak the truth and they were present in the court. Moreover, in the
present case there are two independent witnesses who are corroborated by the
medical evidence and the evidence of the recovery of the weapons at the
instance of the appellants themselves. The fact of non-examination of Mohinder
Singh is immaterial because the question of bulb was a minor matter. Non-examination
of Mohinder Singh would not out-weigh the evidence given by the eye-witnesses
corroborated by the sketch and photographs. [297-H, 298 A--H, 299 A--E] Sahai
Ram v. State of U.P.A.I.R. 1973 S.C. 618, distinguished.
Narain and others v. The State of Punjab
[1959] Supp.
(1) S.C.R. 724 and Masalti v. State of U.P.
[1964] 8 S.C.R.
133, referred to.
There is no duty on the prosecution to
examine witnesses who might have been gained over by the accused and even if
those witnesses are not produced by the prosecution there is nothing to stop
the accused from applying to the court for examining such witnesses under s.
540 of the Criminal Procedure Code. No such application was ever made by the
appellants either before the trial court or before the High Court. Such an
application is made here for the first time which is rejected since this Court
in special jurisdiction does not entertain such application. [300 F H, 301-A]
(7) There was no delay in lodging the F.I.R. after the gruesome murder. Mrs.
Jaswant Kaur and Mrs. Shiv Kaur were threatened by the accused as a 283 result
of which they had to shut themselves in the room and it was only at 6 a.m. that
Mrs. Jaswant Kaur accompanied by Mohinder Singh started for the police station
and lodged the first information report at 9 a.m. The police station being at a
distance of six miles the informant who is a woman could no run to the police
station at night and take the risk of being killed by the accused who had
stayed on in their part of the house even after the occurrence. The delay in
the despatch of the F.I.R. to the magistrate has been clearly explained by the
sub inspector who deposed that he had gone to the Magistrate's court but as the
Magistrate was not in his seat, he proceeded to Gurdaspur to give a copy of the
first information report to Superintendent of Police and after his return he
delivered the FIR to the Magistrate at 3 p.m. Both the courts below have
believed the evidence of the sub inspector which is supported by documents.
[301 F--H, 302 A-B] (8) So' far as Ajit Singh is concerned, the testimony is of
a single witness, Jaswant Kaur. It is difficult to rely on the evidence of Shiv
Kaur. So far as Ajit Singh is concerned although the evidence of Jaswant Kaur
is not distrusted, the possibility of her making an honest mistake in
identifying Ajit Singh cannot be safely excluded or ruled out. Ajit Singh gave
an application praying for a test identification parade on the ground that he
had never gone to the village at the time of the occurrence but at the
identification parade Jaswant Kaur was not asked to identify him. Jaswant Kaur
could not have known appellant Ajit Singh very well. The prosecution ought to
have produced Jaswant Kaur also at the test identification parade to identify
Ajit Singh. It is unsafe to rely on the single testimony of Jaswant Kaur.
Therefore, he was given benefit of doubt.
For the remaining appellants the conviction
and sentence upheld. [303G--H, 304 A G] A.C. Gupta, J. (Concurring)
HELD:It is not possible to catalogue exhaustively
all possible circumstances in which it can be said that grave and substantial
injustice is done. [284 A-B].
CRIMINAL APPELLATE JURISDICTION ' Criminal
Appeals Nos.
232 and 373 of 1975.
(Appeals by Special Leave from the Judgment
and Order dated 10-3-1975 of the Punjab and Haryana High Court in Criminal
Appeal NO. 869/74 and Murder Reference No. 44/74).
Frank Anthony and Harjinder Singh, for the
appellants in both the appeals.
O.P. Sharma, for the respondent in both the
appeals.
The Judgment of the Court was delivered by
Fazal Ali, J.
Gupta, J. gave a separate opinion.
GUPTA, J.---I agree with my learned brother
that the appeals of Dalbir Singh, Puran Singh and Smt. Dalbir Kaur alias Bhiro
should be dismissed. The Judgment of the High Court which affirms the order of
conviction and the sentences passed on these appellants by the trial court does
not appear to suffer from any infirmity which can be said to have caused a
failure of justice so far as the cases of these appellants are concerned. I also
agree that the appeal of Ajit Singh should be allowed for the reasons stated in
the Judgment of my learned brother.
The decisions of this Court referred to in
the Judgment of my learned brother lay down that this Court does not interfere
with the 284 findings of fact unless it is shown that "substantial and
grave injustice has been done". But whether such injustice has been done
in a given case depends on the circumstances of the case, and I do not think
one could catalogue exhaustively all possible circumstances in which it can be
said that there has been grave and substantial injustice done in any case. In
the appeals before us the findings recorded by the trial court and affirmed by
the High Court do not disclose any such exceptional and special circumstances
as would justify the claim made on behalf of the appellants whose appeals we
propose to dismiss that there has been a failure of justice in these cases.
FAZAL ALI, J.--These two appeals by special
leave are directed against the judgment of the Punjab & Haryana High Court
dated March 10, 1975, upholding the convictions and sentences imposed on the
appellants by the Trial Court of Sessions Judge, Gurdaspur. The two appeals
arise out of the same judgment and, therefore, will be dealt with by us by one
common judgment. Criminal Appeal No. 232 of 1975 has been filed by Smt. Dalbir
Kaur @ Bhiro, Puran Singh and Ajit Singh, while Criminal Appeal No. 373 of 1975
has been filed by Dalbir Singh. The Sessions Judge convicted all the appellants
under ss. 302/34 I.P.C. and sentenced Dalbir Singh, Puran Singh and Ajit Singh
to death and Dalbir Kaur to imprisonment for life. The convictions and
sentences passed by the Sessions Judge were upheld by the High Court.
The High Court refused to grant certificate for
leave to appeal to Supreme Court and thereafter on an application made to this
Court special leave was granted.
Two questions arise in these appeals:
(1) Can this Court in a criminal appeal by
special leave enter into a fresh review or reappraisement of the evidence and
examine the question of credibility of witnesses where the two Courts have
concurrently found that the prosecution case against the appellants has been
proved; and (2) Is it open to the appellant, once special leave is granted, to
argue on questions of fact at the hearing, or is he required to confine his
arguments only to the points on which special leave could be granted.
Not that these points are not covered by
authorities but in spite of a catena of decisions of this Court laying down the
various principles from time to time over two decades' and a half counsel for
the parties have been insisting upon this Court to go into the questions of
fact in order to examine whether the judgment of the High Court is correct. I
would, therefore, like to review the decisions of this Court on the two points
mentioned above so as to clarify the position and settle the controversy once
for all.
As to the principles on which special leave
is granted by this Court, the same have been clearly and explicitly enunciated
in a large number of decisions of this Court. It has been pointed out that the
Supreme Court is not an ordinary Court of criminal appeal and does not inter285
fere on pure questions of fact. It is only in very special cases where the
Court is satisfied that the High Court has committed an error of law or
procedure as a result of which there has been a serious miscarriage of justice
that the Court would interfere with the concurrent findings of the High Court
and the Trial Court. It has also been pointed out by this Court more than once
that it is not in the province of this Court to reappraise the evidence and to
go into the question of credibility of the witnesses examined by the parties,
particularly when the Courts below has, after considering the evidence, given
their findings thereon. In other words, the assessment of the evidence by the
High Court would be taken by this Court as final, unless it is vitiated by any
error of law or procedure, by the principles of natural justice, by errors of
record, or misreading of evidence, non-consideration of glaring inconsistencies
in the evidence which demolish the prosecution case or where the conclusion of
the High Court is manifestly perverse and unsupportable and the like. As early
as 1950 this Court in Pritam Singh v. The State(1) speaking through Fazal Ali,
J., (as he then was) observed as follows:
"The obvious reply to all these
arguments advanced by the learned counsel for the appellant, is that this Court
is not an ordinary Court of criminal appeal and will not, generally speaking
allow. facts to be reopened, especially when two Courts agree in their
conclusion in regard to them and when the conclusions of fact which are challenged
are dependent on the credibility of witnesses' who have been believed by the
trial Court which had the advantage of seeing them and hearing their
evidence." "In arguing the appeal, Mr. Sethi proceeded on the
assumption that once an appeal had been admitted by special leave, the entire
case was at large and the appellant was free to contest all the findings of
fact and raise every point which could be raised in the High Court or the trial
Court.
This assumption is, in our opinion, entirely
unwarranted." "The rule laid down by the Privy Council is based on
sound principle, and, in our opinion, only those points can be urged at the
final hearing of the appeal which are fit to be urged at the preliminary stage
when leave to appeal is asked for, and it would be illogical to adopt different
standards at two different stages of the same case." On a careful
examination of article 136 along with the preceding article, it seems clear
that the wide discretionary power with which this Court is invested under it is
to be exercised sparingly and in exceptional 'cases only, ........ "
Generally speaking, this Court will not grant special leave, unless it is shown
that exceptional and special circumstances exist, that Substantial and grave
injustice has been done and that the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against." (1) [19501
S.C.R. 453.
286 Analysing this decision, two principles
appear to have been clearly laid down by this Court:
(1 ) that in appeals by special leave against
the concurrent findings of the Courts below, this Court would not go into the
credibility of the evidence and would interfere only when exceptional and
special circumstances exist which result in substantial and grave injustice
having been done to the accused; and (2) that even after special leave has been
granted the appellant is not free to contest all the findings of fact,' but his
arguments would be limited only to those points, even at the final hearing,
which could be urged at the stage when the special leave to appeal is asked
for.
This case was followed by another Bench
decision of this Court a little later in Mohinder Singh v. The State(j) where
this Court observed thus:
"This Court, as was pointed out in
Pritam Singh v. The State (1950) SCR 453--will not entertain a criminal appeal
except in special and exceptional cases where it is manifest that by a disregard
of the forms of legal process or by a violation of the principles of natural
justice or otherwise substantial and grave injustice has been done." In
Hem Raj v. The State of Ajmer,.(2) the same principle was reiterated by Mahajan
C.J., speaking for the Court, where it was observed thus:
"Unless it is shown that exceptional and
special circumstances exist that substantial and grave injusice has been done
and the case in question presents features of sufficient gravity to warrant a
review of the decision appealed against, this Court does not exercise its
overriding powers under article 136(1) of the Constitution and the circumstance
that because the appeal, has been admitted by special leave does not entitle
the appellant to open out the whole case and contest all the findings of fact
and raise every point which could be raised in the High Court. Even at the
final hearing only those points can ,be urged which are fit to be urged at the
preliminary stage when the leave to appeal is asked for." In Khacheru
Singh v. State of Uttar Pradesh(3) it was pointed out that this Court does not
interfere with the findings of fact arrived at by the Courts below, unless
something substantial has been shown to persuade this Court to go behind the
findings of fact. Imam, J. who spoke for the Court observed as follows:
(1) [1950] S.C.R. 821.
(2) [1954] S.C.R. 1133.
(3) A.I.R. [1956] S.C. 546.
287 "In an appeal by way of special
leave this Court usually does not interfere with the findings of fact arrived
at by the Courts below and nothing substantial has been shown to persuade us to
go behind the findings of fact arrived at by them." In Saravanabhavan v.
State of Madras(1), Hidayatullah, J., (as he then was) speaking for the
majority crystallised and reiterated the principles already laid down by this
Court on previous occasions and observed as follows:
"No doubt this Court has granted special
leave to the appellants but the question is one of the principles which this
Court will ordinarily follow in such an appeal. It has been ruled in many cases
before that this Court will not reassess the evidence at large, particularly
when it has been concurrently accepted by the High Court and the court or
courts below. In other words this Court does not form a fresh opinion as to the
innocence or the guilt of the accused. It accepts the appraisal of the evidence
in the High Court and the court or courts below. Therefore, before this Court
interferes something more must be shown, such as, that there has been in the
trial a violation of the principles of natural justice or a deprivation of the
rights of the accused or a misreading of vital evidence or an improper
reception or rejection of evidence which, if discarded or received, would leave
the conviction unsupportable, or that the court or courts have committed an
error of law or of the forms of legal process or procedure by which justice
itself has failed. We have, in approaching this case, borne these principles in
mind. They are the principles for the exercise of jurisdiction in criminal
cases, which this Court brings before itself by a grant of special leave."
The minority judgment in the same case by Wanchoo, J., (as he then was), so far
as the question of interference by this Court was concerned, also took more or
less the :same view and observed as follows:
"Ordinarily, this Court does not go into
the evidence when dealing with appeals under Art.
13 6 of the Constitution particularly when
there are concurrent findings. This does not mean that this Court will in no
case interfere with a concurrent findings of fact in a criminal appeal; it only
means that this Court will not so interfere in the absence of special circumstances.
One such circumstance is where there is an error of law vitiating the finding
as, for example, where the conviction is based on the testimony of an accomplice
without first considering the question 288 whether the accomplice is a reliable
witness.
Another circumstance is where the conclusion
reached by the Courts below is so patently opposed to well established
principles of judicial approach, that it can be characterised as wholly
unjustified or perverse." The only difference between the two views was
that while the majority view was that except for the principles mentioned above
the Supreme Court could never interfere with the concurrent findings of fact in
a criminal appeal, the minority view agreed with the principles but it held
that in view of special circumstances as pointed out in the observations quoted
above the Court could interfere. At any rate, according to both the views the
ratio is that this Court would not normally interfere with the concurrent
findings of fact, unless there are special circumstances justifying interference.
In Piara Singh v. State of Punjab(1) this
Court refused to interfere because it thought that the points involved related
to pure appreciation of evidence and no error of law was at all committed and
observed as follows:
"The High Court has examined in detail
the argument of the appellant on this point and reached the conclusion that the
statement of the approver with regard to the packing of the hand grenade should
be accepted as true. The question involved is one of appreciation of evidence
and not a question of law." In Hatgun Sunder Das Godeja and others v. The
State of Maharashtra(2) it was reiterated that this Court does not normally
proceed to review the evidence, unless there was some illegality or
irregularity in the approach of procedure. In this connection, the Court
observed as follows:
"We may appropriately repeat-what has
often been pointed out by this Court that under Article 136 of the Constitution
this Court does not normally proceed to review the evidence in criminal cases
unless the trial is vitiated by some illegality or material irregularity of
procedure or the trial is held in violation of rules of natural justice
resulting in grave miscarriage of justice. This Article. reserves to this Court
a special discretionary power to interfere in suitable cases when for special
reasons it considers that interference is called for in the larger interests of
justice." In a recent decision of this Court in Guli Chand v. State of
Rajasthan(3) this Court observed as follows:
(1) [1969] 1 S.C.C. 379. (2) [1970] 1 S.C.C.
724.
289 "It is difficult, after considering
the totality of evidence, to hold that the concurrent findings of fact given by
the Courts below as regards the proof of guilt of each accused beyond
reasonable doubt are really erroneous one may not agree with the assessment of
the evidence of each witness individually either by the trial Court or by High
Court. Yet, we do not think that this is a fit case for interference under
Article 136 of the Constitution. Consequently, we uphold the convictions and
sentences of the appellants and dismiss this appeal." To the same effect
is the decision of this Court in Kaur Sain v. State of Punjab,(1) where
Chandrachud, J., speaking for the Court observed thus:
"It is not the practice of this Court to
undertake a fresh appraisal of the evidence in such matters. . If two views of
the evidence were reasonably possible,'we would not have substituted our
conclusion for that of the High Court." The case really lays down that
where the appreciation of the evidence by the Courts below is not erroneous
even though this Court may be inclined to take a different view it would not be
a fit case for interference.
Another important principle that has been
enunciated by this Court is that even where the prosecution case consists of an
admixture of truth and falsehood it is the duty of the Court to sift truth from
falsehood, to separate the grain from the chaff instead of taking the easy
course of rejecting the entire prosecution case in view of some discrepancy
here or there. If, after applying these legal principles, the Court finds that
truth and falsehood are so inextricably mixed together that it is not possible
to sift truth from falsehood the Court would be justified in rejecting the
prosecution case. In Abdul Gani v. State of Madhya Pradesh(2) this Court
observed as follows:
"The learned Sessions Judge was
undoubtedly in error when he said that it was impossible to find out from the
state of the prosecution evidence with any amount of certainty who among the
accused persons participated in the offence and that it would be a pure gamble
to. convict any of the accused. He made no effort to disengage the truth from
the falsehood and to sift the grain from the chaff but took an easy course and
after holding the evidence discrepant held that the whole case was
untrue." To the same effect is a later decision of this Court in Kanbi
Nanji Virji and others v. State of Gujarat(3) where this Court reiterated as
follows:
"It is true that often times the courts
have to separate to the truth from falsehood. But where the two are so (1)
[1974] 3 S.C.C. 649.
(2) A.I.R. 1954S.C.31 (3) [1970] 3 S.C.C.
103.
290 intermingled as to make it impossible to
separate them, the evidence has to be rejected in its entirety." Recently
also in Dharam Das and others v. State of U.P. (1) this Court commented on this
aspect of the matter thus:
"In our view, the trial court approached
the case ignoring the basic principle that unless the exaggeration and
falsehood in the evidence are on points destructive of the substance of the
prosecution story, it is the Court's duty to sift the evidence, separating
truth from falsehood, and come to its conclusion about the guilt or innocence
of the persons accused of the offence. Exaggeration or falsehood on points
which do not touch the core of the prosecution story are not to be given undue
importance, provided, of course, there is trustworthy evidence supporting the
real substance and core of the prosecution case." Thus the principles
governing interference by this Court in a criminal appeal by special leave may
be summarised as follows:
(1) that this Court would not interfere with
the concurrent finding of fact based on pure appreciation of evidence even if
it were to take a different view on the evidence;
(2) that the Court will not normally enter
into a re-appraisement or review of the evidence, unless the assessment of the
High Court is vitiated by an error of law or procedure or is based on error of
record, misreading of evidence or is inconsistent with the evidence, for
instance, where the ocular evidence is totally inconsistent with the medical
evidence and so on;
(3) that the Court would not enter into credibility
of the evidence with a view to substitute its own opinion for that of the High
Court;
(4) that the Court would interfere where the
High Court has arrived at a finding of fact in disregard of a judicial process,
principles of natural justice or a fair hearing or has acted in violation of a
mandatory provision of law or procedure resulting in serious prejudice or injustice
to the accused;
(5) this Court might also interfere where on
the proved facts wrong inferences of law have been drawn or where the conclusions
of the High Court are manifestly perverse and based on no evidence:
(1) [1972] 2 SCC. 216.
291 It is very difficult to lay down a rule
of universal application but the principles mentioned above and those adumbrated
in the authorities of this Court cited supra provide sufficient guidelines for
this Court to decide criminal appeals by special leave. Thus in a criminal
appeal by special leave, this Court at the hearing examines the evidence and
the judgment of the High Court with the limited purpose of determining whether
or not the High Court has followed the principles enunciated above. Where the
Court finds that the High Court has committed no violation of the various
principles laid down by this Court and has made a correct approach and has not
ignored or overlooked striking features in the evidence which demolish the
prosecution case, the findings of fact arrived at by the High Court on an
appreciation of the evidence in the circumstances of the case would not be
disturbed.
Much time, energy and expense could be saved
if the principles enunciated above are strictly adhered to by counsel for the
parties and they confine their arguments within the four corners of those
principles and they cooperate in this sound and subtle judicial method without
transgressing the limits imposed by the decisions of this Court on its power to
interfere with the concurrent findings of fact. In the instant case both the
Courts below have, after full and complete appreciation of the evidence, accepted
the prosecution case and have held that the guilt against all the appellants
has been proved beyond reasonable doubt. This should have been sufficient to
dispose of this appeal. But as Mr. Frank Anthony learned counsel for the
appellants has argued the case at very great length and seemed to have prepared
the case with great thoroughness and from corner to corner, we would like to
deal with some of the important arguments advanced by him after giving a brief
narration of the main features of the prosecution case.
This is really a most unfortunate case of
patricide where a son along with his companions appears to have murdered his
own father and brother over a petty partition dispute relating to few Killas of
land. The murder committed by the appellants, if proved, is both gruesome,
brutal and unprovoked. The deceased Ajaib Singh appears to have partitioned his
properties between his two sons, namely, Dalbir Singh--who is one of the
appellants--and Amir Singh one of the sons who was killed. Ajaib Singh owned 18
killas of land which was divided in three shares, two shares being allotted to
Dalbir Singh and Amir Singh and one share was kept by the deceased Ajaib Singh
for himself.
After the partition Dalbir Singh separated
and lived in a separate portion of the house, while both the deceased Ajaib
Singh and Amir Singh lived jointly in two rooms the verandah being common.
Ajaib Singh was having joint mess and cultivation with his son Amir Singh.
Dalbir Singh was married to Mst. Dalbir Kaur @ Bhiro who is also one of the
appellants. Amir Singh was married to Mst. Jaswant Kaur. As Jaswant Kaur had
given birth to a child she had called her mother Mst. Shiv Kaur to look after
her and the child.
According to the prosecution Dalbir Singh
left for his father292 in-law's village Santupura a day prior to the
occurrence, while his wife Bhiro along with her children followed him in the
morning of the day of occurrence. It is alleged that on the might intervening
30th and 31st July, 1973 at about 1 A.M. Jaswant Kaur and her husband Amir
Singh were lying on their cots in the verandah and Shiv Kaur was also sleeping
in front of the verandah while Ajaib Singh was lying on a cot near the buffalo
in the court-yard. As the newly born child of Jaswant Kaur was not well both Jaswant
Kaur and her mother Shiv Kaur were awake t0 nurse him. At that time electric
bulb was burning in the court-yard because an electric connection had been
recently taken from a neighbour in view of the illness of the child of Jaswant
Kaur. Near about 1 A.M. Jaswant Kaur and Shiv Kaur heard the noise of
foot-steps and they saw Dalbir Singh, Ajit Singh and Puran Singh armed with
kirpans while Dalbir Kaur @ Bhiro armed with a datar standing by the side of
the cost of Ajaib Singh. Dalbir Singh had an altercation with his father Ajaib
Singh and expressed his dis-satisfaction over the partition of the lands and
asked his father and brother to get ready to meet the consequences and to call
anybody for help if they liked. Thereupon Dalbir Singh gave a kirpan blow on
the left jaw of Ajaib Singh and Bhiro gave a datar blow on his right shoulder,
while Ajit Singh and Puran Singh gave kirpan blows on his chest. After this
gruesome operation was over, the accused proceeded to the cot of Amir Singh who
was caught hold of by Dalbir Singh and Puran Singh and Ajit Singh is alleged to
have given a kirpan blow on his right leg while Mst. Bhiro gave a datar blow on
his left shoulder. Dalbir Singh and Puran Singh then dragged Amir Singh and put
him over the body of Ajaib Singh and thereafter all the appellants caused
further injuries to Amir Singh and Ajaib Singh with their respective weapons on
different parts of their bodies as a result of which they succumbed to the
injuries. Jaswant Kaur and Shiv Kaur raised alarm but they were threatened to
keep quiet as a result of which these two helpless ladies shut themselves up in
one of the rooms. Sometime in the early morning the accused who had stayed on
in their part of the house left the village and went away. Jaswant Kaur narrated
the incident to Mukhtar Singh and Mohinder Singh and ultimately left with
Mohinder Singh and lodged the First Information Report at police station Sadar
Batala at 9 A.M. Thereafter the Investigating Officer proceeded to the spot,
prepared an inquest report sent bodies of the two deceased for post-mortem
examination and conducted the usual .investigations. It is further alleged that
in the course of the investigation all the. appellants made certain statements
on the basis of which recoveries of the kirpans and the datar were made from
the accused concerned. The police after usual investigation submitted
chargesheets as a result of which the appellants were committed to the Court of
Session and ultimately convicted and sentenced as indicated above. The Sessions
Judge made a reference to the High Court for confirmation of the sentence
imposed on all the appellants and appeals were also filed by all the accused
and the High Court after considering the entire evidence agreed with the view
taken by the Sessions Judge confirmed the sentences and dismissed the appeals.
293 The defence pleaded innocence and Ajit
Singh particularly pleaded alibi and stated that he had never gone to the
village Marrar Kalan where the occurrence had taken place.
It might be mentioned here that the appellant
Puran Singh was a full brother of Bhiro while Ajit Singh was her cousin.
The central evidence against the appellants
consists of the statements of P.W. 3 Jaswant Kaur and P. W. 4 Shiv Kaur who
have given a complete narrative of the prosecution case as indicated above.
These two eye witnesses have been described as interested witnesses by counsel
for the appellants but we do not subscribe to this view. There can be no doubt
that having regard to the fact that the incident took place at mid-night inside
the house of Ajaib Singh, the only natural witnesses who could be present to
see the assault would be Jaswant Kaur and her mother Shiv Kaur. No outsider can
be expected to have come at that time because the attack by the appellants was
sudden. Moreover a close relative who is a very natural witness cannot be
regarded as an interested witness. The term "interested" postulates
that the person concerned must have some direct interest in seeing that the
accused person is somehow or the other convicted either because he had some
animus with the accused or for some other reason. Such is not the case here. In
the instant case there is absolutely no evidence to indicate that either
Jaswant Kaur or Shiv Kaur bore any animus against the accused. This Court had
an occasion to decide as to whether a relative could be treated as an
interested witness. In Dalip Singh and others v. State of Punjab(') this Court
expressed its surprise over the impression which prevailed in the minds of the
members of the bar that relatives were not independent witnesses and in order
to dispel the same the qualities of independent witnesses were clearly
elucidated. In this connection, Vivian Bose, J., speaking for the Court
observed as follows:
"We are unable to agree .with the
learned Judges of the High Court that the testimony of the two eye-witnesses
requires corroboration. If the foundation for such an observation is based on
the fact that the witnesses are women and that the fate of seven men hangs on
their testimony, we know of no such rule. If it is grounded on the reason that
they are closely related to the deceased we are unable to concur. This is a
fallacy common to many criminal cases and one which another Bench of this Court
endeavoured to dispel in Rameshwar v. The State of Rajasthan [1952] S.C.R. 377
& 390. We find, however, that it unfortunately still persists, if not in
the judgments of the courts, at any rate in the arguments of counsel.
A witness is normally to be considered
independent unless he or she springs from sources which are likely to (1)
[1954] S.C.R. 145 294 be tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to implicate him falsely.
Ordinarily, a close relative would be the
last to ..screen the real culprit and falsely implicate an innocent person. It
is true, when feelings run high and there is personal cause for enmity, that
there is a tendency to drag in an innocent person against whom a witness has a
grudge along with the guilty, but foundation must be laid for such a criticism
and the mere fact of relationship far from being a foundation is often a sure
guarantee of truth." A similar view was taken in a later decision of this
Court in Masalti v. State of U.P.(1) where this Court observed as follows:
"But it would, we think, be unreasonable
to contend that evidence given by witnesses should be discarded only on the
ground that it is evidence of partisan or interested witnesses
.................
The' mechanical rejection of such evidence on
the sole ground that it is partisan would invariably lead to failure of
justice." In Guli Chand's case (supra) it was pointed out that normally
close relatives of the deceased would not be considered to be interested
witnesses who would falsely mention the names of other persons as responsible
for causing injuries to the deceased. Thus in this case also the Court held
that the witnesses concerned even though relatives could not be considered to
be interested or partisan. This Court observed at p. 702 thus:
"It has been held by this Court that the
mere fact that a witness is a relation of a victim is not sufficient to discard
his testimony." To the same effect are the observations by this Court in
State of Punjab v. Jagir Singh & Ors. (2) For these reasons, therefore, I
am unable to reject the evidence of P.Ws. 3 and 4 merely on the ground that
they were relatives of the deceased. I have myself carefully gone through the
entire evidence of these two witnesses and I find that shorn of a few
embellishments here and there their testimony has a ring of truth a colour of
consistency and a sense of straightforwardness as a result of which their
evidence inspires great confidence. They have given a graphic description of
what they had seen. In these circumstances, therefore, I do not see any reason
to discard the assessment of the Courts (1) [1964] 8 S.C.R. 133 (2) [1974] 3
S.C.C. 277 295 below regarding these two witnesses. I will, however, deal with
the general comments made by counsel for the appellants regarding the entire
case a little later. Thus once the evidence of these two witnesses is believed,
the prosecution case stands proved, apart from anything else. It will, however,
appear that the prosecution had led circumstantial evidence to support the
intrinsic evidence given by these witnesses. One of the reasons for the
presence of P.W. 4 Shiv Kaur in the house and the electric installation was
that Jaswant Kaur had recently given birth to a child. This fact is clearly
proved from the Birth Register Ext. P.O., which has been proved by P.W. 10,
which clearly shows that a son was born to Amir Singh who is also known as
Bhagta Singh on July 11, 1973. The entry has been made on July 14, 1973.
This extract from the Birth Register has been
proved by P.W. 10 Sohan Singh Chowkidar of the village who maintains birth and
death register and testifies on oath that he had himself seen the child of
Jaswant Kaur. These two pieces of evidence therefore prove conclusively that
the evidence of the two witnesses was absolutely true in the sense that one
Jaswant Kaur had given birth to a child she had called Shiv Kaur a few days
before her delivery. The occurrence took place a little more 'than two weeks
after the birth of the child. Similarly the witnesses (P.Ws. 3 and 4) have
categorically stated that at the time when the accused entered the house an
electric bulb was burning because the child was not well. That there was
electricity fitting in the house and a bulb in the court-yard is established
from the sketch map of the place prepared by P.W. 5 Bal Krishan who has been
examined to prove the sketches prepared by him which shows the electric fitting
and the bulb. This is further corroborated by the evidence of P.W. 5 Mohinder
Singh. photographer who had prepared the photograph Ext. P.N. which also proves
the electric fittings.
In these circumstances the testimony of these
two witnesses on these two essential points is fully corroborated by the other
evidence.
Mr. Anthony however submitted that the prosecution
has not examined the best evidence, namely, Mohinder Singh from whom the
electric connection was borrowed. This was a very minor matter and the evidence
led by the prosecution clearly proved the fact that there was electric
installation and the bulb actually burning at the time of occurrence and nonexamination
of Mohinder Singh would not outweigh the evidence given by the eye witnesses
corroborated as it is by the evidence of P. Ws. 5 & 6 and the documents
Exts. P.N.
and P.M.
The prosecution has further led the evidence
of recovery of the weapons from all the appellants at their instance which are
Exts. P.Q., P.S., P.T., and P.U. The weapons recovered were bloodstained and
they were recovered at the instance of the appellants. Both the Courts below
have accepted this evidence and this was sought to be repelled by learned
counsel for the appellants on the ground that no independent witness as such as
has been examined to prove the recoveries. It would appear that so far as Ext.
P.Q. 3--1104SCI/76 296 the recovery of kirpan from Pooran Singh is concerned it
has been proved by Darshan Singh brother of Jaswant Kaur. We find that Jaswant
Kaur was not an interested witness because she was the wife of one of the
deceased. Her brother Darshan Singh's testimony does not suffer from any
infirmity and he must be considered to be an independent witness because he
bears no animus whatsoever against any of the appellants. Darshan Singh was
examined as a witness as P.W. 11 and was examined at great length but no
suggestion was given to him that he had any enmity against the accused. The
only thing that was suggested to him was that he was deposing falsely because
of his relationship---a ground which cannot be entertained.
As regards the recoveries of the weapons at
the instance of Dalbir Kaur, Dalbir Singh and Ajit Singh, it is true that they
have been attested by the police officers and some independent persons as
search witnesses. The police officers have been examined to prove the search
but the other witnesses have not been examined. That by itself does not
introduce any serious infirmity in the evidence furnished by the recoveries
which at best is only a corroborative piece of evidence. We shall, however,
take. up the case of Ext.
P.U. the recovery of kirpan from Ajit Singh a
little later.
The learned counsel for the appellants relied
on a decision of this Court in Nachhettar Singh & others v. State of
Punjab(1) where Bhagwati, J., speaking for the Court observed as follows:
"It is because of the serious
infirmities in the main version of the occurrence that the story of arrest,
recovery of fire-arms and cartridges from the person of the appellants and the
findings of the empties at the place of occurrences assumed importance ......
The recovery in the circumstances of this case ought to have been proved by
examining the witnesses who had witnessed the recovery." In the first
place that case is clearly distinguishable because the recoveries in that case
suffered from various other infirmities which led the Court to reject that evidence.
Again what the Court observed was that the recovery should be proved by
examining witnesses who had witnessed the recovery. In the instant case the
witnesses were no doubt examined to prove the recoveries and both the courts
below have accepted their evidence. This is not a ease where no witnesses for
recoveries were examined at all so that the evidence of recovery could be
thrown out on that ground also. In these circumstances, therefore, the case
cited by the learned counsel for the appellants does not appear to be of any
assistance to him and therefore we overrule the contention of the learned
counsel on this scope.
It was further urged that there does not
appear to be any motive for murder of the two deceased persons by the
appellants who happened to be the son of one of the deceased and brother of
another. It (1) A.I.R. 1976 S.C. 831.
297 was submitted that in case of patricide
the prosecution must prove strong and compelling motive before the murder can
be accepted. The learned Sessions Judge has accepted the evidence of motive,
namely, the fact that the appellant Dalbir Singh was wholly dissatisfied with
the partition of properties and particularly because his father Ajaib Singh
used to give the produce of the land to his brother Amir Singh.
The Sessions Judge on the question of motive
found as follows:
"This was the main bone of contention
between Ajaib Singh and Dalbir Singh accused. Dalbir Singh accused wanted to
have three more killas of land from Ajaib Singh but the latter refused to part
with his land. Although as discussed above, the circumstances of the case do
point out that the accused had a motive to commit the crime, yet even if it is
assumed for the sake of argument that the prosecution has not been able to
prove by good evidence that the. accused had any impelling motive to commit the
crime, it would not render any help to them." The High Court also
confirmed this finding and held that even if the motive was not proved, if the
evidence of the eye witnesses Jaswant Kaur and Shiv Kaur is accepted the
question of motive pales into insignificance and becomes absolutely academic.
We would, however, hasten to add that this is no doubt the correct proposition
of law, but in the instant case we should remember that lust of land is a very
sensitive matter. We have known a very large number of cases resulting in
serious disputes cultimating in murders over small land disputes. Various
persons react differently in similar circumstances and we cannot, therefore, exclude:
the possibility of the appellant Dalbir Singh having reacted very sharply
against what he considered to be an inequitable distribution of the property.
This would undoubtedly provide an adequate motive for the murder which is demonstrated
by the fact that the two deceased persons were actually murdered by Dalbir
Singh and his party. In these circumstances we are satisfied that the finding
of the Courts below on this point is absolutely correct.
I shall now deal with two important points
which were vehemently pressed by Mr. Anthony learned counsel for the
appellants. In the first place it was contended that the entire prosecution
case should be thrown out because of non-examination of four material witnesses
in this case. It was submitted that even according to the evidence of Jaswant
Kaur her neighbours Mohinder Singh and Daya Singh had also witnessed the
occurrence. Jaswant Kaur stated this fact at p. 46 of Paper Book No. II but she
also added that even though they were watching the occurrence they did nothing
to help the deceased nor did they raise any alarm. The counsel further
submitted that these two witnesses were interrogated by the police and yet they
have not been examined to prove and corroborate the evidence of the eye witnesses.
This omission is undoubtedly there and we have to see as to what 298 is its
effect on the truth of the prosecution case. In the same token it was also
contended that two other witnesses, namely, Mukhtiar Singh and Mohinder Singh
who immediately came to the house and to whom the eye witnesses narrated the
occurrence have also not been examined. Particular comment was made regarding
the non-examination of Mohinder Singh who had in fact accompanied the informant
to the police station.
It was argued by Mr. Anthony that in view of
this deliberate omission to examine material witnesses a reflection is cast on
the fairness of the trial so as to vitiate the conviction of the appellants.
Strong reliance was placed by counsel for the appellants on the decision of
this Court in Habeeb Mohammad v. The State of Hyderabad.(1) In that case what
had happened was that the only witness examined to prove the firing by the
accused was a police Jamadar whereas a very senior police officer who is said
to be present at the time when the accused gave orders for firing was not
produced and what was more was that no explanation for the omission to examine
this witness was given. In view of these circumstances and the other
infirmities appearing in that case generally, this Court held that such an
omission to produce a material witness was sufficient to throw doubt on the
prosecution case. In this connection this Court observed thus:
"In this situation it seems to us that
Biabani who was a top-ranking police officer present at the scene was a
material witness in the case and it was the bounden duty of the prosecution to
examine him, particularly when no allegation was made that if produced, he
would not speak the truth .....In our opinion, not only does an adverse
inference arise against the prosecution case from his non-production as a
witness in view of illustration (g) to section 114 of the Indian Evidence Act,
but the circumstance of his being withheld from the court casts a serious
reflection on the fairness of the trial." The facts of that case are
clearly distinguishable from the facts of the present case. To begin with, in
that case, excepting the interested witness the police Jamadar there was no
other eye witness to support the occurrence. Secondly, this Court clarified its
observations that an adverse inference could be drawn only if no explanation
for the non-examination was given or if no allegation was made that the witness
if produced would not speak the truth. Thirdly, it appears that although an
application was made to the Trial Court for examination of the witness
concerned under s. 540 of the Code of Criminal Procedure. the Court did not
accede to this prayer. In the instant case the prosecution has given very
reasonable explanation for not examining these witnesses and there is nothing
to show that the accused filed any application before the Trial Court or even
before the High Court for examining these witnesses as the Court witnesses nor
did they choose to examine them as the defence witnesses. The Public (1) [1954]
S.C.R. 475.
299 Prosecutor in his statement before the
Sessions Judge clearly stated thus at p. 57 of Paper Book No. II:
"I give up Inder Singh and Sadhu Singh
PWs as the uncles of Dalbir Singh accused, Mohinder Shingh as maternal uncle of
Dalbir Singh, I also give up Mukhtar Singh, Nazir Masih, Pursan Masih, Chanan
Singh and Ravinder Singh IPWs as having been won over by the accused. They are
not likely to speak the truth and they are present in court." The reasons
given by the Public Prosecutor are quite understandable, because the witnesses
who had been given up either on the ground that they were relatives of the
appellant Dalbir Singh or that they had been won over by the accused and were
not likely to speak the truth. This statement of the Public' Prosecutor which
was recorded by the Trial Court on June 3, 1974 clearly takes the case out of
the ambit of the ratio of the decision in Habeeb Mohammed's case (supra).
Furthermore, in the instant case, there were
two independent witnesses P.Ws. 3 and 4 who had proved the actual occurrence
and their evidence was fully corroborated by the medical evidence and the
evidence of the recovery of the weapons at the instance of the appellants
themselves. In these circumstances, therefore, the principles laid down in
Habeeb Mohamed's case (supra) will not apply to this case at all, Further more
in Habeeb Mohamed's case there was a serious violation of procedure because the
Trial Court refused to summon those witnesses who were cited by the defence which
was by itself sufficient to vitiate the trial. It was in view of these
circumstances that this Court was not prepared to convict the accused. In these
circumstances, therefore, the case relied upon by the learned counsel for the
appellants has no application to the present case.
Reliance was also placed on a decision of
this Court in Sahaj Ram State of U.P. (1) where this Court observed as follows:
"There is a clear finding of the
Sessions Court to the effect that P.Ws. 1 to 3 had a very strong motive to
falsely 'implicate the four accused forming group II. In view of these circumstances,
the High Court's consideration of the evidence of P.Ws. 1 to 3 is faulty and
erroneous.
The conviction of the appellants by the High
Court is based exclusively on the evidence of these witnesses giving great
importance to Ext. Ka-8. We have already held that Ext. Ka-8 should not have
been taken into account. Having due regard to the other circumstances referred
to above, the evidence of P.Ws. 1 to 3 even as regards the appellants, stands
considerably discredited and no conviction can be based on such an evidence.
This really is a case, in our opinion, where
the courts have substantially disbelieved the substratum of the prosecution's
case and have reconstructed a story of their own against the appellants."
(1) A.I:R. 1973 s.c. 618 300 It would appear that in that case there was no
evidence of the eye' witnesses at all who were examined as court witnesses and
who destroyed the prosecution case completely.
Furthermore, the witnesses examined by the
prosecution, namely, P.Ws. 1 to 3 were factional witnesses and the finding was
that they had very strong motive to implicate the accused. Lastly in that case
the F.I.R. on which the High Court relied was found to be inadmissible in
evidence. It was in these circumstances that an adverse inference was drawn
against the prosecution for non-examining some of the witnesses. That case also
therefore has no application to the facts of the present case.
On the other hand in Narain and others v. The
State of Punjab it was pointed out by this Court that if non-examination of
material witnesses was deliberate and international then a serious reflection
was cast on the prosecution and the Court observed as follows:
"We agree that if a material witness has
been deliberately or unfairly kept back, then a serious reflection is cast on
the propriety of the trial itself and the validity of the conviction resulting
from it may be open to challenge." In the instant case it has been seen
that the Public Prosecutor has given a statement that the witnesses concerned
were either relatives of the accused or that had been gained over by the
accused and were, therefore, not likely to speak the truth. In view of this
explanation it cannot be said that the witnesses were deliberately withheld or
unfairly kept back and therefore no adverse inference could be drawn against
the prosecution for non-examination of those witnesses.
To the same effect is the decision of this
Court in Masalti's case (supra) which was also relied upon by counsel for the
appellants on this point. In that case the Court observed as follows:
"It is undoubtedly the duty of the
prosecution to lay before the Court all material evidence available to it which
is necessary for unfolding its case; but it would be unsound to lay down as a
general rule that every witness must be examined even though his evidence may
not be very material or even if it is known that he has been won over or
terrorised. In such a case, it is always open to the defence to examine such
witnesses as their witnesses and the court can also call such witnesses in the
box in the interest of justice under s. 540 Cr. P.C." From the
observations made by this Court it is quite clear that there no duty on the
prosecution to examine witnesses who might have been gained over by the accused
and even if those witnesses are not produced by the prosecution there is
nothing to stop the accused from applying to the Court for examining such
witnesses under s. 540 of the Code of Criminal Procedure. No such application
was ever made by the appellants either before the Trial Court or the High Court
but for the first time it was made in this Court and that too during the (1)
[19591 supp. 1 S.C.R. 724.
301 course of the arguments. This Court in
its special jurisdiction does not entertain such applications, particularly
because the accused had an opportunity to make a similar application before the
Courts below and they have not availed of the same. For these reasons,
therefore, Criminal Miscellaneous Petition No. 1291 of 1976 filed by the appellants
in this Court is rejected.
There is one peculiar feature in this case
which is with regard to the eye witnesses Mohinder Singh and Daya Singh who are
alleged to have seen the occurrence. According to P.W. 3 they refused to give
statements to the p?lice as deposed to by the Investigating Officer P.W. 14 at
p. 65 of Paper Book No. II. In this connection P.W. 14 Sub-Inspector
categorically stated as follows: (p. 66 of Paper Book No. II):
"I wanted to record the statements of
Mohinder Singh and Daya Singh under section 161 Criminal Procedure Code on 1st
August, 1973 but they were not prepared to make statements regarding this
occurrence and to become witnesses." What the witness really meant was
that although he did interrogate the witnesses who must have given some statement,
yet they were not at all prepared to be cited as witness for the purpose of
giving evidence. I had sent for the case diary and all that we can say is that
after perusing the same 1 do not think that the statement made by the witness
can be said to be either wrong or incorrect. The witness does not bear any
animus against the accused nor was any such suggestion made to him in
cross-examination. I, therefore, do not see any reason to distrust the evidence
of the Investigating Officer P.W. 14 on this point. If his evidence is
accepted, then the prosecution has given an adequate explanation for not
examining Mohinder Singh and Daya Singh, and therefore no adverse inference can
be drawn against the prosecution.
It was then submitted that there was delay in
the lodging of the F.I.R. and also in its despatch to the Magistrate. This
argument is to be stated only to be rejected.
The eye witnesses have clearly stated that
after the gruesome occurrence they were threatened by the accused as a result
of which they had to shut themselves in the room and it was only in the morning
when the accused had left the house that Jaswant Kaur accompanied by Mohinder
Singh started for the police station at 6 A.M. and lodged the F.I.R.
at the police station at 9 A.M. the police
station being at a distance of six miles from village Marfar Kalan where the
occurrence took place. In view of these facts it is not reasonable to except
the informant to have reached the police station earlier than 9 A.M. It was
impossible to expect from the informant who was a woman to rush to the police
station at night and take the risk of being killed by the accused who had
stayed on in their part of the house even after the occurrence and had left the
house only in the morning. It was, however, suggested that there was delay in
the despatch of the F.I.R. to the Magistrate.
302 This matter has been clearly explained by
the Sub-Inspector who after making the necessary entries arrived at the spot
and sent Constable Prem Chand P.W. 15 to take the F.I.R. to the Magistrate.
P.W. 15 Prem Chand has deposed that he had gone to the Magistrate's Court but
as the Magistrate was not in his seat he preceded to Gurdaspur to give a copy
of the F.I.R. to Superindendent of Police and after his return he delivered the
F.I.R. to the Magistrate at 3 P.M. Both the Courts below have believed the
evidence of P.W. 15 which is supported by the documents and the fact that the
Magistrate actually received the F.I.R. at 3 P.M. If the accused wanted to
contest this fact they should have examined the officers of the Court of the
'Magistrate to find out whether or not the Magistrate was available in his seat
in the morning as deposed to by Prem Chand. At any rate, this is a pure finding
of fact which is arrived at on the basis of the evidence led by the prosecution
and we are not prepared to re-open this finding in the present appeal by
special leave in view of the decisions of this Court.
It was also argued that the evidence of P.Ws.
3 and 4 should be disbelieved because they have given graphic description of
the occurrence by detailing the nature of the injuries and the parts of the
body where they were inflicted. Such a photogenic description smacks of the
evidence being a tainted one according to the counsel for the appellants.
Reliance was placed on a decision of this
Court in Shivali Sahabrao Bobade v. State of Maharashtra(1) where this Court
observed thus:
"Some attempt was made to show that the
many injuries found on the person of the deceased and the manner of their
infliction as deposed to by the eye-witnesses do not tally. There is no doubt
that substantially the wounds and the weapons and the manner of causation run
congruous. Photographic picturisation of blows and kicks and hits and strikes
in an attack cannot be expected from witnesses who are not fabricated and
little turns on indifferent incompatibilities. Efforts to harmonise humdrum
details betray police tutoring not rugged truthfulness." The observations
made by this Court were made having regard to the peculiar facts of that case
and cannot be taken to lay down a rule of universal application. In the instant
case the witnesses watched the occurrence from a close distance in an electric
light, The assault was so dastardly and gruesome that it must have made a
definite and lasting impact on the memory of the witnesses that made them remember
the assault with its grotesque details. Human memory is like a camera which
takes snap shots of striking incidents and then transmits the same through word
of mouth faithfully with absolute accuracy and precision. Moreover, it is not a
question of giving photographic details of all but the witnesses have merely
described what they actually saw. It is manifest that in view of the electric
bulb burning, the (1) [1973] 2 S.C.C. 793.
303 witnesses were bound to observe the
weapons with which the accused were armed, the main parts of the body where the
blows were given and the like. As the accused were fully known to the informant
Jaswant Kaur, there is nothing unusual if she gave the names and parentage of
all the accused persons in the F.I.R. In these circumstances, the comment of
the learned counsel for the appellants is without substance and must be
overruled.
Lastly Mr. Frank Anthony submitted that. the
case of Ajit Singh deserves special consideration, particularly in view of the
fact that one of the eye-witnesses Shiv Kaur has failed to identify him at the
test identification parade.
It was further submitted that if Ajit Singh
is acquitted, then the whole case would fall to the ground, because if the
witnesses could implicate one innocent person there is no guarantee that the
others were not equally innocent.
While I agree with the first part of the
statement that here is some room for giving benefit of doubt to Ajit Singh, I
do not agree with the other part of the argument that merely because Ajit Singh
is given benefit of doubt, the others also should be acquitted. In Sat Kumar v.
State of Haryana(1) this Court observed thus:
"There is no rule of law that if the
Court acquits certain accused on evidence of a witness finding it to be open to
some doubt with regard to them for definite reasons, any other accused against
whom there is absolute certainty about his complicity in the crime based on the
remaining credible part of the evidence of that witness, should also
be-acquitted. It will, however, call for a closer scrutiny of the evidence and
the Court must feel assured that it is safe to rely upon the witness for the
conviction of the remaining accused." To the same effect is the earlier
decision of this Court in Mohammed Moinuddin v. State of Maharashtra(2) where
it was observed:
"Mr. Nuruddin Ahmed urged that the High
Court on the very same evidence has chosen to give the benefit of doubt to
accused No. 3 and, if so, the appellant also should be given the benefit of
doubt. We are not inclined to accept this contention of the counsel." So
far as Ajit Singh is concerned we have the single testimony of Jaswant Kaur as
it is difficult to rely on the evidence of Shiv Kaur, so far as Ajit Singh is
concerned, because she has failed to identify the appellant Ajit Singh at the
test identification parade. Shiv Kaur who is undoubtedly a truthful witness has
made no secret of the fact and has frankly admitted in her statement that she
did not know Ajit Singh from before. In these circumstances, therefore, the
evidence of Shiv Kaur cannot be relied upon for the purposes of identification
so far as the appellant Ajit Singh is concerned. As regards Jaswant Kaur I see
no reason to distrust her evidence at all, but in the circum(1) [1974] 3 S.C.C.
643. (2) [1971] 3 S.C.C. 33 .
304 stances the possibility of this witness
making an honest mistake in identifying Ajit Singh cannot be safely excluded or
ruled out. It may mentioned here that the accused Ajit Singh at the time of
surrendering gave an application which is Ext. D.B. at p. 42 of Paper Book Part
II where he categorically prayed that be should be put at the test identification
parade for identification by all the eye witnesses who did not know him from
before. In iris statement under s. 342 of the Code of Criminal Procedure also
Ajit Singh took the stand that he had never gone to the village Marrar Kalan
before or after the occurrence and that is why be surrendered not at Batala but
at Gurdaspur so that he might not be got identified by the police to the
witnesses. The Magistrate passed an order that the accused Ajit Singh should be
identified at the test identification parade but unfortunately while Shiv Kaur
was asked to identify the appellant Ajit Singh at the test identification
parade, Jaswant Kaur was not asked to identify him there. It is true that
Jaswant Kaur has stated in her evidence that she knew the appellant Ajit Singh
as being the cousin of Mst.
Bhiro the wife of her husband's eider
brother. He used to come to the house off and on. It is, therefore, clear that
Jaswant Kaur herself might have caught only a glimpse of the appellant Ajit
Singh when he came to meet Mst. Bhiro who admittedly lived in a separate
portion of the house and, therefore, the witness Jaswant Kaur could-not have
known the appellant Ajit Singh very well. At any rate, either Ajit Singh was
known to the witness Jaswant Kaur or he was not known. In any case, in view of
the stand taken by Ajit Singh the prosecution should, in all fairness, have put
Jaswant Kaur also at the test identification parade to identify Ajit Singh. If
Ajit Singh was not known to Jaswant Kaur as he said, then she would not have
been able to identify him. If Ajit Singh was known to her, then also the
prosecution was not to lose anything. In view of these circumstances,
therefore, I feel it unsafe to rely on the single testimony of Jaswant Kaur, so
far as the appellant Ajit Singh is concerned. This, however, does not mean that
I am casting any reflection on the credibility or truthfulness of any of the
eye-witnesses. The appellant Ajit Singh may have been one of the assailants but
in view of the circumstances mentioned above, a reasonable doubt arises,
regarding his participation, which must be given to him. If the evidence of
Jaswant Kaur is excluded from consideration, so far as Ajit Singh is concerned,
then the evidence of the recovery of kirpan from Ajit Singh by itself was not
sufficient to connect him with the crime, particularly when there was no
statement by Ajit Singh wherein he had confessed assaulting the deceased and
then pointed out to the weapon as being the weapon with which he had assaulted
the deceased. In these circumstances I am satisfied that the prosecution has
not been able to prove its case against Ajit Singh beyond reasonable doubt and
the High Court was wrong in convicting him.
So far as the other appellants, namely,
Dalbir Kaur, Dalbir Singh, and Puran Singh are concerned, I fully agree with
the judgment of the High Court that the case has been proved beyond doubt
against those appellants and they have been rightly convicted. Both the Courts
305 below have applied their mind to the question of giving death sentences and
have pointed out that this being the case of a most dastardly, cruel, gruesome
and unprovoked murder of two innocent and helpless persons, while they were asleep,
death sentence was the only sentence that could be given to them, particularly
to Dalbir Singh and Puran Singh.
The Trial Court rightly gave life
imprisonment to Dalbir Kaur @ Mst. Bhiro as she was a woman and appears to have
played in the hands of her husband.
The result is that the appeal of Ajit Singh
is allowed and the conviction and sentence imposed on him are hereby set aside.
He is acquitted of the charges framed against him and is directed to. be set at
liberty immediately. The appeals of Dalbir Singh, Puran Singh and Dalbir Kaur @
Mst.
Bhiro are hereby dismissed and the
convictions and sentences imposed on them are affirmed.
P.H.P. Appeals partly allowed.
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