Bur Singh & ANR.
Vs. State of Punjab [2008] INSC 1707 (13 October 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of SLP (Crl.) No.1562 of 2008) Bur Singh & Anr. ..Appellants Versus
State of Punjab ..Respondent
Dr. ARIJIT PASAYAT,
J.
1.
1
Leave granted.
2.
Challenge
in this appeal is to the judgment of the Division Bench of the Punjab and
Haryana High Court upholding the conviction of the appellants for conviction punishable
under Section 302 for appellant no.1 and Section 302 read with Section 34 of
the Indian Penal Code, 1860 (in short the `IPC') for appellant no.2 while
directing acquittal of co-accused Parminder Singh. Four persons faced trial.
The learned Sessions Judge Gurdaspur directed acquittal of Lakhbir Singh, while
holding the present appellants and Parminder Singh to be guilty of offence
punishable under Section 302 and Section 302 read with Section 34 IPC as noted
above. By the impugned judgment the High Court as noted above directed
acquittal of the co-accused while confirming the conviction and sentence so far
as the appellants are concerned.
3.
Prosecution
versions as unfolded during trial is as follows:
On 5.10.1999 Bur
Singh had given beatings to the son of Manjit Singh for passing through their
fields to which Surjan Singh had objected, therefore, the accused were annoyed
and challenged to teach him a lesson.
On 6.10.1999 at about
6 AM Sukhraj Singh (hereinafter referred to as the `complainant') along with
his father Surjan Singh was going towards his well to milch the cattle. Surjan
Singh was ahead of complainant. When they came near the field of Hazara Singh,
the accused came there. Bur Singh raised lalkara that they be caught and taught
a lesson for showing sympathy with the police. Kulwinder Singh accused
inflicted datar blow on the right arm of Surjan Singh, Bur Singh inflicted sua
blow on his right temporal region, and, resultantly, he fell down. Thereafter
Parminder Singh accused inflicted dang blow to him on his shoulders. Thus, all
the accused inflicted several blows to him with the respective weapons. The hue
and cry raised by Sukhraj Singh attracted Jasbir Singh and Kulbir Singh to the
spot. At this, the accused fled away with their respective weapons. Surjan
Singh succumbed to the injuries at the spot.
After leaving Jasbir
Singh and Kulbir Singh near the dead body, the complainant went to the police
station, but ASI Lakhbir Singh met him at Aliwal Chowk to whom he got recorded
his statement Ex.PD, which was completed at 7.30 AM on the basis of which FIR
Ex. PD/2 was registered at 8.30 AM. The distance of police station Sadar,
Batala is 4Kms. from the place of occurrence. The FIR was received by the
illaqa Magistrate at 9 A.M. ASI Lakhbir Singh visited the place of occurrence;
prepared the rough site plan; lifted blood stained earth from the spot; took
into possession one shoe of plastic; got conducted postmortem examination the
dead body of the deceased; and took the clothes of the deceased into
possession. Accused Bur Singh was arrested on 11.10.1999 and he got recovered
dang fitted with sua under the chaff in his residential house and Kulwinder
Singh accused got recovered datar from underneath the heap of chaff lying in
his verandah in pursuance of their disclosure statements under Section 27 of
the Indian Evidence Act, 1872 (in short the `Evidence Act'). On 28.10.1999,
Parminder Singh accused was arrested by Inspector Lakhbir Singh CIA staff,
Batala. Completion of the investigation was followed by a report under Section
173 of the Code of Criminal Procedure, 1973 (in short `Code').
In order to
substantiate the accusations twelve witnesses were examined. PWs 2&3 were
stated to be eye witnesses. The accused persons abjured guilt as noted above and
in the examination under Section 313 of the Code stated that they had been
falsely implicated.
Acquitted accused
Parminder Singh stated that he was staying at the different State and was not
present at the date. Four witnesses were examined to further the defence
version about false implication. The trial Court found the evidence of PWs 2
& 3 to be cogent and credible and recorded conviction. In appeal, High
Court upheld their conviction.
4.
In
support of the appeal learned counsel for the appellant submitted that the
evidence of PWs 2 & 3 cannot be believed. Their presence at the spot is
highly improbable. The conspiracy angle as projected by the prosecution having
been disbelieved that defence version of false implication stand substantiated.
The two witnesses are interested witnesses and their version should not have
been relied upon. In any event when on the self same evidence, two of the
accused persons were acquitted the present appellants should not have been
convicted. With reference to evidence of PW 3 it was stated that he claimed
that there were bloodstains on his clothes when the deceased was taken by him.
PW 11 the Investigating Officer (in short the `I.O.') has categorically stated
that so far as PW 2 is concerned, it is stated he was working as a Development
Officer and was staying at a different place. Added to that, the time of the
alleged occurrence has been varied. Presence of semi-digested food clearly
shows that the occurrence could not have taken place in the morning as claimed
by the prosecution. It is also submitted that in the First Information Report
(in short the `FIR') and the application made for postmortem, the I.O. had not
stated that the injuries on the person of the deceased were caused by sharp
weapon. There was no mention of any blunt weapon. With reference to Exhibits D1
and D2 it is stated that there were blank spaces and, therefore, there was
scope for manipulation.
5.
Learned
counsel for the respondent on the other hand submitted that the police
officials were was not investigating properly and, therefore, lapse had been
committed. These lapses were committed with a view to help the accused persons
for which complaint was made to the higher officials. The accused persons
cannot take any advantage of the lapses committed by the police officials, if
any, with a view to help them. It is also submitted that the evidence of PWs
2& 3 is clear, cogent and credible and therefore the trial court and the
High Court had rightly convicted them.
6.
Merely
because the eye-witnesses are family members their evidence cannot per se be
discarded. When there is allegation of interestedness, the same has to be
established. Mere statement that being relatives of the deceased they are
likely to falsely implicate the accused cannot be a ground to discard the
evidence which is otherwise cogent and credible. We shall also deal with the
contention regarding interestedness of the witnesses for furthering prosecution
version. Relationship is not a factor to affect credibility of a witness. It is
more often than not that a relation would not conceal actual culprit and make
allegations against an innocent person.
Foundation has to be
laid if plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find out whether it is cogent
and credible.
7.
In
Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has been laid
down as under:- "A witness is normally to be considered independent unless
he or she springs from sources which are likely to 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 relation 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 5 criticism and
the mere fact of relationship far from being a foundation is often a sure
guarantee of truth.
However, we are not
attempting any sweeping generalization. Each case must be judged on its own
facts. Our observations are only made to combat what is so often put forward in
cases before us as a general rule of prudence. There is no such general rule.
Each case must be limited to and be governed by its own facts."
8.
The
above decision has since been followed in Guli Chand and Ors. v. State of
Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras (AIR
1957 SC 614) was also relied upon.
9.
We
may also observe that the ground that the witness being a close relative and
consequently being a partisan witness, should not be relied upon, has no
substance. This theory was repelled by this Court as early as in Dalip Singh's
case (supra) 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:
"We 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."
10.
Again
in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court observed: (p.
209-210 para 14):
6 "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. No
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."
11.
To
the same effect is the decisions in State of Punjab v. Jagir Singh (AIR 1973 SC
2407), Lehna v. State of Haryana (2002 (3) SCC 76) and Gangadhar Behera and
Ors. v. State of Orissa (2002 (8) SCC 381).
12.
The
above position was also highlighted in Babulal Bhagwan Khandare and Anr. v.
State of Maharashtra [2005(10) SCC 404] and in Salim Saheb v. State of M.P.
(2007(1) SCC 699).
13.
As
noted above, stress was laid by the accused-appellants on the non-acceptance of
evidence tendered by PW-3 to contend about desirability to throw out the entire
prosecution case. In essence the prayer is to apply the principle of
"falsus in uno falsus in omnibus"
(false in one thing,
false in everything). This plea is clearly untenable. Even if major portion of
evidence is found to be deficient, in case residue is sufficient to prove guilt
of an accused, notwithstanding acquittal of number of other co-accused persons,
his conviction can be maintained. It is the duty of Court to separate the grain
from the chaff. Where the chaff can be separated from the grain, it would be
open to the Court to convict an accused notwithstanding the fact that evidence
has been found to be deficient to prove guilt of other accused persons. Falsity
of particular material witness or material particular would not ruin it from
the beginning to end. The maxim "falsus in uno falsus in omnibus" has
no application in India and the witnesses cannot be branded as liars. The maxim
"falsus in uno falsus in omnibus" has not received general acceptance
nor has this maxim come to occupy the status of a rule of law. It is merely a
rule of caution. All that it amounts to, is that in such cases testimony may be
disregarded, and not that it must be discarded. The doctrine merely involves
the question of weight of evidence which a Court may apply in a given set of
circumstances, but it is not what may be called `a mandatory rule of evidence'.
(See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC 366). Merely because
some of the accused persons have been acquitted, though evidence against all of
them, so far as direct testimony went, was the same does not lead as a necessary
corollary that those who have been convicted must also be acquitted. It is
always open to a Court to differentiate accused who had been acquitted from
those who were convicted. (See Gurcharan Singh and Anr. v. State of Punjab (
AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a
whole body of the testimony was to be rejected, because a witness was evidently
speaking an untruth in some aspect, it is to be feared that administration of
criminal justice would come to a dead-stop. Witnesses just cannot help in
giving embroidery to a story, however true in the main. Therefore, it has to be
appraised in each case as to what extent the evidence is worthy of acceptance,
and merely because in some respects the Court considers the same to be
insufficient for placing reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be disregarded in all
respects as well. The evidence has to be sifted with care. The aforesaid dictum
is not a sound rule for the reason that one hardly comes across a witness whose
evidence does not contain a grain of untruth or at any rate exaggeration,
embroideries or embellishment. (See Sohrab s/o Beli Nayata and Anr. v. The
State of Madhya Pradesh 1972 3 SCC 751) and Ugar Ahir and Ors. v. The State of
Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted above, in terms
of felicitous metaphor, separate the grain from the chaff, truth from
falsehood. Where it is not feasible to separate truth from falsehood, because
grain and chaff are inextricably mixed up, and in the process of separation an
absolutely new case has to be reconstructed by divorcing essential details
presented by the prosecution completely from the context and the background
against which they are made, the only available course to be made is to discard
the evidence in toto. (See Zwinglee Ariel v. State of Madhya Pradesh (AIR 1954
SC 15) and Balaka Singh and Ors. v. The State of Punjab. (AIR 1975 SC 1962). 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).
14.
It
is to be noted that the trial court and the High Court have noticed that though
PW2 was working as a Development Officer at Gurdaspur, there was no evidence to
show that he could not have been present at the time of occurrence in the
village which is not very far off from Gurdaspur. Merely because the investigating
officer had not noticed any blood stains on the clothing of PW 3, that does not
mean that PW 3 was telling a lie. PW 11 has stated that he had not noticed the
bloodstains. That is not the same thing to say that there was no bloodstain.
There can be several reasons for which blood stains may not have been noticed
by PW 11 because he may not have focussed his attention to that aspect. So far
as the presence of semi-digested food is concerned, the High Court has stated
that the people in the villages get up early in the morning, take some food and
then start their daily pursuits. No question was asked to the witnesses as to
when the deceased woke up and when he took his food if any. It is of
significance to find that Dr. Harbhajan Singh, PW1 conducted the autopsy and
found the presence of rigor mortis on the upper limbs whereas it was partially
presence on the lower limbs when the autopsy was conducted on 6.10.1999 at 1.15
P.M.
15.
This
indicates that rigor mortis was just in the process of setting and had not
completely set towards the body. In view of all this the presence of 150cc food
in the stomach of the deceased cannot be a factor to disbelieve the evidence of
PWs 2&3. FIR was very promptly lodged, occurrence is supposed to have taken
place around 6 AM and the statement of the complaint was recorded at 7 A.M. So
far as the non-mention about the use of blunt weapon in the inquest report for
post mortem is concerned, there is no requirement in law that the police
officials making inquest or conducting of post mortem should describe in detail
as to the nature of the injuries sustained by the deceased and/or by the type
of weapons used. That cannot be a factor to discard the prosecution version.
16.
Looked
at from any angle, the appeal is without merit, deserves dismissal, which we
direct. Appellant No.1 was exempted from surrendering considering his age. Both
the accused appellants shall surrender to custody forthwith to serve remainder
of sentence.
17.
Appeal
is dismissed.
................................................................J.
(Dr. ARIJIT PASAYAT)
..................................................................J
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