of Punjab Vs. Karnail Singh  Insc 376 (14 August 2003)
Raju & Arijit Pasayat. Arijit Pasayat, J.
of Punjab is in appeal questioning the
legality of judgment rendered by the Punjab and Haryana High Court directing acquittal of the respondents Karnail
Singh and Nirmal Singh. Learned Sessions Judge, Jalandhar, had found both the
accused persons to be guilty of offence punishable under Section 302 of Indian
Penal Code, 1860 (for short 'IPC'). Life sentence was imposed on each, with
fine of Rs.1,000/-. Additionally, accused Karnail Singh was convicted for
offences punishable under Section 307 read with Section 34 IPC while accused Nirmal
Singh was convicted for offences punishable under Section 307 IPC. Each of them
was sentenced to undergo rigorous imprisonment for five years and to pay a fine
of Rs.500/- each. During pendency of appeal before this Court,
accused-appellant Nirmal Singh expired. Since no application in terms of
Section 394 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.')
has been filed, the appeal abates so far he is concerned.
nutshell the prosecution version is as follows:
Singh @ Kala (hereinafter referred as 'the deceased') had five brothers,
namely, Piara Singh, Swaran Singh, Charan Singh, Dev Singh and Kewal Singh. Piara
Singh and the deceased used to reside in a Dera in their fields, where they had
installed a tubewell. Accused Karnail Singh and Nirmal Singh belong to their
village. They also used to reside in a Dera close to the Dera of Piara Singh
and deceased. As deceased was having illicit relationship with Sito, wife of
accused Karnail Singh, there was enmity between the accused persons and the
deceased. On 26.1.92 in the night Piara Singh and deceased were taking rest at
the Dera after taking meals. Their brother Swaran Singh also came there in
order to irrigate his fields by using their tubewell. At about 11.00 p.m., Swaran Singh asked deceased to have a round and to
check up if the fields were properly irrigated. Deceased went out to check up
the fields. After some time, Piara Singh and Swaran Singh (PWs. 1 and 2
respectively) heard the cry for help made by the deceased. Immediately they
went out and saw both accused persons armed with weapons dragging the deceased
towards their Dera. At that time there was an electric bulb lighting their Dera.
When they tried to help the deceased, Nirmal Singh fired at the deceased with
his gun, as a result of which he fell down on the ground while accused Karnail
Singh was assaulting the deceased with the Kirpan. When Piara Singh (PW 1)
raised alarm pleading that the deceased should not be assaulted, the accused
persons threatened them. Being frightened they ran away to their village. On
the following morning, they told about the incident to Gurdip Singh, Sarpanch.
They went to the place of occurrence, and found the headless body of the
deceased with injury on the right side of the chest lying in the field near the
Dera of accused Karnail Singh.
searched for the head of the deceased and found the same lying in the tubewell
at the Dera of accused Karnal Singh. Piara Singh left Swaran Singh (PW 2) and Kewal
Singh to guard the dead body and lodged the information at the police station.
Investigation was undertaken and on completion charge sheet was placed. Accused
persons pleaded innocence and false implication.
Trial Judge found the prosecution version to be credible and placing reliance
on the evidence of PWs. 1 and 2 convicted the accused persons and sentenced
them as above stated. The judgment of conviction and sentence was assailed
before the High Court. Main challenge before the High Court was that there was
unexplained delay in lodging the FIR and dispatch of the same to the concerned
also submitted that the conduct of the witnesses who were brothers of the
deceased was unusual and instead of coming to his rescue they claimed to have
fled away. The five brothers of the deceased did not take any step in the night
and remained content. They informed the Sarpanch on the next day, and though
they claimed to have told the Lambardar in the night itself, there was no
evidence adduced during trial to that effect. Accepting the contentions of the
accused the High Court directed acquittal as aforenoted. The High Court also
noted that the presence of PWs 1 and 2 was extremely doubtful and a false case
after due deliberation was cooked up and FIR was prepared at about 2.00 p.m. and that being the position, the accused persons
were entitled to acquittal.
support of the appeal learned counsel for the appellant-State submitted that
the time of occurrence was around 11.00 p.m. The FIR was lodged next day around 9.35 a.m. First the information was given at the police chowk around 8.00 a.m., and the FIR was registered at the Police Station at
about 9.35 a.m. The FIR reached the Magistrate
around 3.00 p.m. Undisputedly the police chowk was at a distance of 3
kilometers from the place of occurrence, while the police station was at a
distance of 7 kilometers, and the distance of the court from the police station
was 10 kilometers. Considering the distance there was no reason to discard the
prosecution version. Further the conclusion of the High Court that there was
unusual conduct in not informing the police or co-villagers at the night does
not appear to be correct.
position as noted by the Trial Court is that that area was a terrorist infected
area and terrorism was at its peak during the period. The post-mortem was
conducted at 3.15 p.m. There was no explanation as to how
the dead body was found in the field of the accused Karnail Singh and the
severed head was found near his tubewell.
on mere surmises, credible prosecution evidence has been discarded.
contra, learned counsel for the accused Karnail Singh submitted that the
prosecution has failed to establish its accusations, and the High Court has
noted the infirmities in details and no interference is called for considering
the limited scope of interference in an appeal against acquittal. The PWs 1 and
2 are close relatives of the deceased and, therefore, their evidence should not
have been acted upon. Their evidence is also not consistent with regard to
motive for the crime.
is no embargo on the appellate Court reviewing the evidence upon which an order
of acquittal is based. Generally, the order of acquittal shall not be
interfered with because the presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favourable to the accused
should be adopted. The paramount consideration of the Court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice which may arise
from acquittal of the guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is ignored, a duty is cast upon the
appellate Court to re-appreciate the evidence even where the accused has been
acquitted, for the purpose of ascertaining as to whether any of the accused
committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (JT 2002 (3) SC 387)]. The
principle to be followed by appellate Court considering the appeal against the
judgment of acquittal is to interfere only when there are compelling and
substantial reasons for doing so. If the impugned judgment is clearly
unreasonable, it is a compelling reason for interference. These aspects were
highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (1973 (2) SCC 193), Ramesh Babulal Doshi
v. State of Gujarat (1996 (9) SCC 225) and Jaswant
Singh v. State of Haryana (JT 2000 (4) SC 114).
consideration of the rival submission, we are of the view that the High Court
is not justified in directing acquittal of the accused persons. It proceeded on
an erroneous impression that the FIR was lodged at 2.00 p.m. after deliberations and discussions. No material has been
indicted for coming to this conclusion. On the contrary, evidence on record
clearly shows that the information was lodged at 8.00 a.m. at the police chowk, and the FIR was registered at the
police station at 9.35
a.m. and it reached
the Magistrate at 3.00
p.m. It is baffling as
to how and on what material High Court came to the conclusion that the FIR came
into existence at 2.00 p.m. Additionally considering the distance between the
place of occurrence, police chowk, police station and the court of the
Magistrate, it cannot be said that there was any unexplained delay so far as
registration of FIR and dispatch to the Magistrate are concerned. Merely
because the information was not lodged at the police chowk or the police
station in the night, that cannot be a suspicious circumstance in view of the
factual position noted by the Trial Court. From the evidence it is clear that
the area was a terrorist infected area and terrorism was its peak during the
period. These factors weighed with the Trial Court, and in our opinion rightly.
The High Court did not attach any importance to this vital factor, and came to
to be noted that there was no dispute by the accused regarding the presence of
the dead body and the severed head in the field and in the tubewell of accused Karnail
Singh. Though the prosecution has to lead evidence to substantiate its
accusations, if factors within the special knowledge of the accused are not
satisfactorily explained it is a factor against the accused. No explanation was
given by the accused during examination under Section 313 of the Code except
making bold denial. Though this factor by itself cannot be sufficient to fasten
the guilt of the accused, while considering the totality of the circumstances
this is certainly a relevant factor. The evidence of PWs 1 and 2 is clearly
cogent and without even properly analyzing their evidence the High Court came
to the conclusion that their presence was doubtful.
also observe that the ground that the witnesses being close relatives and
consequently being partisan witnesses, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh
and Ors. v. The State of Punjab (AIR 1953 SC 364) in which surprise
was expressed over the impression which prevailed in the minds of the Members
of the Bar that relatives were not independent witnesses. Speaking through
Vivian Bose, J. it was observed:
are unable to agree with the learned Judges of the High Court that the
testimony of the two eyewitnesses 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. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find,
however, that it unfortunately still persists, if not in the judgments of the
Courts, at any rate in the arguments of counsel." Again in Masalti and
Ors. v. The State of U.P. (AIR 1965 SC 202) this Court observed: (p. 209-210 para
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.
hard and fast rule can be laid down as to how much evidence should be
appreciated. Judicial approach has to be cautious in dealing with such
evidence; but the plea that such evidence should be rejected because it is partisan
cannot be accepted as correct." To the same effect is the decision in
State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana
(2002 (3) SCC 76). As observed by this Court in State of Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC
1390), normal discrepancies in evidence are those which are due to normal
errors of observation, normal errors of memory due to lapse of time, due to
mental disposition such as shock and horror at the time of occurrence and those
are always there, however, honest and truthful a witness may be. Material
discrepancies are those which are not normal, and not expected of a normal
person. Courts have to label the category to which a discrepancy may be categorized.
While normal discrepancies do not corrode the credibility of a party's case,
material discrepancies do so. These aspects were highlighted in Krishna Mochi
and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186).
because one of the witnesses stated that he was unaware of the illicit relationship,
that does not in any way dilute the evidentiary value of the evidence of other
witnesses who have spoken about it.
devotion to the rule of benefit of doubt must not nurture fanciful doubts or
lingering suspicion and thereby destroy social defence. Justice cannot be made
sterile on the plea that it is better to let hundred guilty escape than punish
an innocent. Letting guilty escape is not doing justice according to law. [See:
Gurbachan Singh v. Satpal Singh and Others [AIR 1990 SC 209]. Prosecution is
not required to meet any and every hypothesis put forward by the accused.
State of U.P. v. Ashok Kumar Srivastava [AIR 1992 SC 840]. A reasonable doubt
is not an imaginary, trivial or merely possible doubt, but a fair doubt based
upon reason and common sense. It must grow out of the evidence in the case. If
a case is proved perfectly, it is argued that it is artificial; if a case has
some flaws inevitable because human beings are prone to err, it is argued that
it is too imperfect. One wonders whether in the meticulous hypersensitivity to
eliminate a rare innocent from being punished, many guilty persons must be
allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See
Inder Singh and Anr. v. State (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches
cannot take place of judicial evaluation. "A judge does not preside over a
criminal trial, merely to see that no innocent man is punished. A judge also
presides to see that a guilty man does not escape. Both are public
duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution
(1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998).
Doubts would be called reasonable if they are free from a zest for abstract
speculation. Law cannot afford any favourite other than truth. (See: Shivaji Sahebrao
Bobade & Anr. v. State of Maharashtra (1974 (1) SCR 489), State of U.P.v.
Krishna Gopal and Anr. (AIR 1988 SC 2154), and Gangadhar Behera and Ors. v. State
of Orissa (2002 (7) Supreme 276).
in view the legal principles and the factual scenario in our view the
inevitable conclusion is that the High Court was not justified in directing
acquittal of the accused persons. Accordingly the judgment of the High Court is
set aside and that of the Trial Court restored.
Karnail Singh is directed to surrender to custody to serve the balance of the
imprisonment as ordered by the Trial Court.
appeal is allowed.