The
State of Punjab Vs. Surja Ram [1995] INSC 371 (9 August 1995)
Mukherjee
M.K. (J) Mukherjee M.K. (J) Nanavati G.T. (J) M.K. Mukherjee, J.
CITATION:
1995 AIR 2413 1995 SCC Supl. (3) 419 JT 1995 (6) 383 1995 SCALE (4)689
ACT:
HEAD NOTE:
(With Crl.
Appeal No. 346 of 1984)
Surja
Ram and his three sons Mohan Lal, Vinod Kumar and Pramod Kumar, all residents
of village Puran Patti under the police station of Fazilka (Sadar), were placed
on trial before the Sessions Judge, Ferozepore to answer charges under Section
302 read with Section 34 of the Indian Penal Code for the murders of Tulsa Ram,
the elder brother of Surja Ram, and his son Brij Lal. On conclusion of the
trial, the learned Judge acquitted all of them of the charge relating to the
murder of Brij Lal and also acquitted Vinod Kumar and Pramod Kumar of the other
charge but convicted Surja Ram and Mohan Lal and sentenced each of them to
suffer imprisonment for life. Against their conviction and sentence, Surja Ram
and Mohan Lal preferred an appeal which was allowed by the High Court.
Assailing their acquittal these two apeals have been preferred; one by the
State of Punjab (Criminal Appeal No. 448 of 1984) and the other (Criminal
Appeal No. 346 of 1984) by Kamla Devi, daughter of the deceased Tulsa Ram. Both
the appeals have been heard together and this judgment will dispose of them.
The
case for the prosecution, briefly stated, is as under: Ishar Ram, father of Surja
Ram and Tulsa Ram had divided his lands in three equal shares, one of which was
given to Surja Ram (the respondent no. 1), another to Tulsa Ram (the deceased)
and the third was retained by him. In terms of the said division, a field known
as `Diggiwala' fell in the share of Tulsa Ram and he used to sow Moongi crops
thereon. Surja Ram, however, was demanding a share out of the Moongi crops from
Tulsa Ram, but the latter told him that as he (Surja Ram) was already in
possession of more land than that fell in his share, he should first give him
(Tulsa Ram) a part of it before he could claim any share in the Moongi crops.
This proposal was however not acceptable to Surja Ram.
On April 18, 1982 at or about 5 p.m. Tulsa Ram was sitting in an open space outside his house
while his two sons Ram Gopal (PW 4) and Brij Lal (the deceased) were away to
the field for raising crops. At that time Surja Ram accompanied by his three
sons came there and started shouting that Tulsa Ram should be taught a lesson
for not giving the share of Moongi crops. Surja Ram was carrying a spear, Mohan
Lal a pistol, Vinod Kumar a kirpan and Parmod Kumar a soti. Apprehending
danger, Tulsa Ram got up and tried to rush into his house when Mohan Lal fired
from the pistol hitting him on the back. As a result thereof Tulsa Ram fell
down with his face upwards. Surja Ram then inflicted a blow, with the spear he
was carrying, on the chest of Tulsa Ram. Immediately thereafter Tulsa Ram died.
Kamla Devi (PW 2), daughter of Tulsa Ram, and Ram Swarup (PW 3) who were inside
the house and had earlier come out on hearing the shouts raised by Surja Ram,
cried out for help.
All
the four miscreants then ran towards the field shouting that they would not
spare the sons of Tulsa Ram also. Kamla Devi and Ram Swarup then rushed towards
the field where Brij Lal and Ram Gopal were working. Sighting the miscreants
Ram Gopal fled away but Brij Lal could not succeed in his attempt as Mohan Lal
fired three shots at him resulting in his instantaneous death. Finding Brij Lal
dead, Kamla Devi came back home and sent Ram Swarup to inform her maternal
uncles, who lived in a nearby village. After Ram Swarup returned with her
maternal uncles Raja Ram (PW 12) and Kanshi Ram (PW 13), Kamla Devi left for
the police station accompanied by Kanshi Ram. There she lodged a First
Information Report, (Ext. PJ) which was recorded by Sub- Inspector Bhagwan
Singh (PW 18).
After
registering the case Bhagwan Singh left for the place of occurrence accompanied
by Kamla Devi and Kanshi Ram. Reaching there he found the dead body of Tulsa
Ram lying in front of his house. He held inquest thereupon and sent it for
post-mortem examination. He also collected and seized some blood stained earth
from the spot. He then went to the field where the dead body of Brij Lal was
lying.
After
holding inquest he forwarded the dead body for post- mortem examination. From
the field he also collected and seized some blood stained earth. Thereafter he
recorded the statements of witnesses including Ram Swarup and Ram Gopal.
In
course of the investigation he arrested the accused persons and interrogated
them. Pursuant to the statement made by Surja Ram he recovered a spear which
was lying under a heap of cotton sticks in his house. The other accused Mohan Lal
(respondent No. 2) also made a disclosure statement and pursuant thereto PW 18
recovered a country- made pistol and three cartridges, which were wrapped in a
piece of cloth and kept buried in a field. On completion of investigation he
submitted charge-sheet and in due course the case was committed to the Court of
Session.
The
accused persons pleaded not guilty to the charges levelled against them and
stated that they have been falsely implicated. They, however, admitted their
relationship inter-se as also with the deceased and the factum of partition.
To
bring home the charges levelled against the accused the prosecution relied
principally upon the ocular version of the incident as given out by Kamla Devi
(PW 2) and Ram Swarup (PW 3). PW 2 also testified about her having lodged the
F.I.R. at the police station and PW 3 spoke about his having gone to village Sabuana
immediately after the incident to fetch Raja Ram and Kanshi Ram. To corroborate
the testimonies of the above two witnesses the prosecution relied upon the
evidence of Dr. S.N. Mittal (PW 1) who held post-mortem examination upon the
two dead bodies and found a number of injuries on their persons. Besides,
prosecution laid evidence to prove that pursuant to the statements made by Surja
Ram and Mohan Lal (the two accused-respondents) the offending spear and pistols
were recovered. The reports of the Forensic Science Laboratory, which indicated
that earth seized from near the house of the deceased Tulsa Ram contained human
blood, and of the Ballistic Expert indicating that the recovered pistol was
used in recent firing were also exhibited. On discussion of the evidence so
adduced by the prosecution, the trial Judge firstly held that even if it might
be concluded that there was no proof of motive it would not adversely affect
the direct evidence of the eye-witnesses. The trial Judge then discussed the
evidence of the two eye-witnesses. The trial Judge then discussed the evidence
of the two eye-witnesses and found the same reliable, so far as it related to
murder of Tulsa Ram near his house, notwithstanding some discrepancies which,
according to him, were of a minor nature. The trial Judge further held that the
injuries found on the dead body of Tulsa Ram by the doctor conformed with the
eye-witnesses' narration of the incident. As regards the other murder the trial
Judge held that the account of the incident as given out by the two
eye-witnesses stood contradicted by the medical evidence. In drawing the above
conclusion he observed that the fire-arm injuries sustained by Brij Lal were
the result of a single shot but both the eye-witnesses stated that he had been
shot at thrice. Another reason which weighed with him in recording the order of
acquittal in respect of the murder of Brij Lal was the unnatural conduct of the
two eye-witnesses following the murder of Tulsa Ram.
According
to the trial Judge if PWs 2 and 3 had heard from the accused about their
intention to go after the sons of Tulsa Ram and if they had in fact seen the
accused going towards the fields where Brij Lal and Ram Gopal were working it
was expected of them to raise hue and cry and seek others' help. He also
doubted the presence of Ram Gopal in the field. Having perused the evidence on
record we find that none of the grounds canvassed by the trial Judge for
recording the acquittal in respect of the charge for the murder of Brij Lal is sustainable.
However, we need not detail the reasons for our above conclusion for, no appeal
was preferred against that acquittal and in these appeals we are only concerned
with the question whether the High Court was justified in acquitting the two
respondents of the charge relating to the murder of Tulsa Ram.
It is
trite that while dealing with an appeal against an acquittal recorded by the
High Court this Court does not ordinarily interfere with it but if it is found
that relevant and reliable evidence on record has been lost sight of, ignored
or brushed aside for reasons which are wholly unsustainable this Court will not
only be justified - but it will be its duty - to interfere with the acquittal
to make amends for the failure of justice.
From
the impugned judgment of the High Court we first find that it negatived-and in
our view rightly-the plea raised on behalf of the two respondents (the
appellants therein) that since the trial Court had totally rejected the
evidence of the two eye-witnesses in respect of the murder of Brij Lal there
was no guarantee of truth attached to the self-same evidence in respect of the
murder of Tulsa Ram, with the following observation:- "There is no
gainsaying and the trial Court has also held that the maxim "Falsus in uno,
Falsus in omnibus" has not been applied by the courts in India but at the
same time, what is required to be judged is as to whether the eye- witnesses
are otherwise reliable, or not".
The
High Court then posed the question as to whether the two eye-witnesses were
reliable or not and answered the same in the negative with the following
findings:
i) The
F.I.R. was not a genuine document as it was prepared at the behest of the
Investigation Officer, after he held inquest, to dovetail with the injuries
found by him on the person of Brij Lal. Consequently, no reliance could be
placed upon the testimony of Kamla Devi, who lodged the same;
ii)
There was no satisfactory explanation for the delay in lodging the F.I.R. at
the police station which was at a distance of hardly 4 or 5 miles from the
spot;
iii)
Ram Swarup was merely a chance witness as he was a resident of a different
village and it was a strange coincidence that he had come from his own village
to see Kamla Devi at exactly 5 p.m. when the
incident took place;
and
iv) Considering the matter from the angle of natural course of human conduct
and probabilities, the two eye-witnesses would not have dared to follow the appelants
to the fields, after seeing Tulsa Ram being put to death , in order to witness
the murder of Brij Lal and if they had really followed the assailants, as
claimed by them, it was more likely that they would have been attacked by the
accused persons but no such claim was even made.
After
a close look to the entire evidence on record we are constrained to say that
each of the above findings is untenable. Prosecution laid evidence, through PW
2 and PW 18 - which was not controverted - that the F.I.R. was lodged at the
police station at 8
p.m. on 18.4.82. We
next get from the record of the trial Court that on 11.1.1983 the Public
Prosecutor tendered the evidence of a number of witnesses, including Constable Sukhwant
Sing (PW 11), through affidavits, as he considered their evidence to be formal.
On such tendering of evidence the trial Judge recorded the following order:
"The
accused have no objection to the admissions to the statements of P.W. 5 to P.W.
11 on affidavits. They do not wish to cross examine them. I herby order that
the statements of formal witnesses P.W.5 to P.W.11 be admitted on
affidavits." The procedure so adopted by the trial Judge was clearly in
consonance with Section 296 of the Code of Criminal Procedure. Coming now to
the affidavit of PW 11 we get therefrom that on 18.4.1982 at 9.45 p.m. he delivered the special report to Shri D.R. Arora,
the Judicial Magistrate in charge of Fazilka. PW 11 asserted that he did not
delay the delivery of the special report. The endorsement in the FIR also
corroborates the above uncontroverted statement of PW 11. Then again it is the
categorical statement of the Investigation Officer - which again has not been controvered
- that he completed the formalities regarding the recording of FIR by 9.15 p.m. and proceeded for the spot at 10 p.m.
Having
regard to the fact that the FIR and for that matter the special report in
respect thereof had reached the Magistrate in accordance with Section 157 of
the code of Criminal procedure before departure of the Investigating Officer
from the police station for the spot, the finding of the High Court that the
FIR was doctored at the behest of the Investigating Officer to fit in with the
injuries he found on the person of Brij Lal at the time of inquest must be
attributed to its non-consideration of material evidence.
Regarding
the second finding we can only say that there was no delay whatsoever in
lodging the F.I.R. for it was lodged by PW 2 within three hours of the incident
after covering a distance of 5 miles. This apart, the sequence of events as
deposed to by PW 2 clearly demonstrates that she had gone to the police station
at the earliest opportunity.
According
to her she first sent message to her maternal uncles through Ram Swarup and
only after they came she went to the police station and her evidence in this
regard stands fully supported by Raja Ram (PW 12), her maternal uncle.
PW12
testified that at 6.30
p.m. Ram Swarup had
come to his village and reported the incident to him. Thereafter he left for Kamla's
place accompanied by Kanshi Ram. We cannot lose sight of the fact that PW 2,
who was aged only 19 years, had lost her father and brother just then and it
was not unlikely of her first to apprise her relations of the same and seek
their help at that hour of her distress. The High Court, however, observed that
if really PW 3 was there nothing prevented PW 2 to go to the police station
accompanied by him as he was the surpanch of his village instead of getting in
touch with her maternal uncles. Simply because PW 2 did not react in the way
the High Court thought she should have, it ought not have been made a ground
for drawing adverse conclusions against her conduct, which was clearly normal
and natural. While on this point it will be also pertinent to point out that PW
3 was not a sarpanch of Kamla's village.
Coming
now to the third finding it must be said that the High Court ought not to have
brushed aside the evidence of Ram Swarup (PW 3) solely on the ground that being
a resident of another village it was not expected of him to be present at the
spot just at the right time for, there are, besides his own evidence and that
of PW 2, other materials on record which confirms his presence at the time of
the occurrence. Raja Ram (PW 12) stated in his evidence that Ram Swarup had
come to his house in village Sabuana on April 18, 1982, at or about 6.30 p.m. and gave a detailed version of the incident. He
further stated that accompanied by Raja Ram he went to village Puran Patti on a
motor cycle. In cross- examination it was not even suggested to PW 12 that his
above statements were incorrect. Another significant fact is that PW 3's name
finds place in the FIR as a witness to the occurrence. We do not, therefore,
find any reason to leave the evidence of PW 3 out of our consideration on the
ground that he was a chance witness.
The
last finding of the High Court is solely based on the ground that the claim of
the two eye-witnesses that they had seen the murder of Brij Lal was highly
improbable. Even if we proceed on the assumption that the finding is
unexceptionable still then the High Court was not at all justified in rejecting
their evidence so far as it related to the murder of Tulsa Ram on that score
alone for law is well settled that when evidence of a witness is rejected in
part a duty is cast upon the court to sift his evidence with more than ordinary
care and caution to find out whether the rest of the evidence is fully
trustworthy, either intrinsically or by reason of corroboration from other
trustworthy sources. Indeed, as noticed earlier, the High Court itself negatived
an identical threshold contention raised by the respondents based on the maxim
"Falsus in uno, Falsus in omninbus".
Now
that we have found that the reasons which weighed with the High Court in
recording the order of acquittal in favour of the two respondents cannot be
sustained we have to ascertain whether the trial Court was justified in
convicting them solely relying on the evidence of P.Ws. 2 and 3. After going
through their evidence carefully we find that they fully supported the
prosecution case as detailed earlier, including the specific roles played by
the two respondents in the murder of Tulsa Ram. Considering the fact that the
incident took place just in front of the house of Tulsa Ram, P.W. 2 was the
most natural and probable witness.
The
claim of PW 3 that he was in the house of Tulsa Ram at the material time has
already been found by us to be a genuine one. He must, therefore, also be held
to be a probable witness. Though both of them were cross-examined at length
nothing could be elicited to discard their evidence or materially contradict
them. Dr. Mittal (P.W. 1) testified that the deceased (Tulsa Ram) had an
incised wound on the right chest, and an incised wound below base of neck. He
also found four pellet wounds on the dead body besides some abrasions. When
P.W. 1 was shown a spear (Ex. p. 1) which was seized during investigation he
opined that the two incised wounds might have been caused by one blow with that
instrument as the two wounds communicated with each other.
He
further opined that the pellet wounds might have been the result of a single
shot from a firearm. The evidence of the Doctor, therefore, fully supports the
evidence of the two eye-witnesses. This apart, the F.I.R., which has been found
by us to have been promptly lodged contains a detailed outline of the prosecution
case and thus corroborates the evidence of P.W.2. The find of human blood near
the house of Tulsa Ram also is a piece of corroboration of the evidence of P.Ws.
2 and 3. The trial Judge, however, did not lend any importance to the factum of
recovery of the spear and the pistol pursuant to the statements made by the
respondent Nos. 1 and 2 respectively, on the ground that no blood was found on
the spear and the Ballistic Expect's report only indicated that the pistol had
been used before it was recovered but such user could not be connected with the
commission of the crime. We also, therefore, do not find it prudent to take
into consideration the above evidence.
However
such non-consideration does not in any way deter us from accepting the prosecution
case as we find that both P.Ws. 2 and 3 are wholly reliable and their evidence
stands corroborated by other evidence on record.
On the
conclusions as above we allow both the appeals, set aside the impugned judgment
of the High Court and restore the order of conviction and sentence recorded
against the two respondents under Section 302/34 I.P.C. by the learned trial
Judge. The respondents who are on bail will now surrender to their bail bonds
to serve out the sentence.
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