Prem Singh & Ors.
Vs. State of Haryana [2009] INSC 969 (6 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 934 OF 2009
[Arising out of Special Leave Petition (Criminal) No. 7000 of 2008] PREM SINGH
& ORS. ... APPELLANTS Versus
S.B. Sinha, J.
1.
Leave
granted.
2.
This
appeal by special leave is against a judgment and order dated 25.2.2008 passed
by a Division Bench of the High Court of Punjab & Haryana at Chandigarh
affirming a judgment of conviction and sentence dated 9.9.1998 passed by the
Sessions Judge, Rohtak convicting the appellants herein for commission of an
offence under Section 302/34 of the Indian Penal Code (for short,
"IPC") 2
3.
A
First Information Report (for short, "FIR") was lodged on 8.10.1994
at about 5.50 p.m. by Prem Singh (P.W.1) inter alia alleging that Chand Ram,
Ajmer and Dilbagh and the appellants (Prem Singh and Karambir @ Pappu) herein
were responsible for causing death of his brother Krishan (the deceased).
They were charged
under Sections 148 and 302/149 of the IPC.
The prosecution in
order to prove its case examined six witnesses.
4.
P.W.
1 in his deposition before the learned Sessions Judge stated that on the date
of occurrence he was in his Bajra field along with the deceased.
At about 1.00 p.m.
one Samunder and accused Ajmer were taking their bullock cart through their
mustard crop which was objected to by the deceased as a result whereof they
were forced to take back the same. They went away threatening to see the
deceased later. At about 3.00 p.m. on the same day, accused persons came and
started assaulting the deceased. Prem Singh (Accused No.2) is said to have
given a jelly blow on the chest of the deceased whereas Karambir @ Pappu
(Accused No. 3) inflicted a farsa blow on his head; Chand Ram (Accused No.1) is
said to have given a jelly blow on his abdomen whereas Ajmer (Accused No.4)
inflicted a jelly blow on his left knee. Dilbagh (Accused No. 5) is said to
have given a jelly blow with a 3 lathy on the back of the deceased. While
being taken to hospital, the deceased died at about 5.00 p.m.
5.
The
learned trial judge on analysis of the entire evidence brought on record and
after noticing the purported contradictions in the statements of the prime
witnesses, namely, Prem Singh (P.W.1) and Baljit Singh (P.W.4) found all of
them guilty for commission of murder of the deceased. The High Court, however,
while disposing of the appeal preferred by them inter alia on the premise that
the injuries attributed to the three others apart from the appellants herein
having not been found on the person of the deceased gave them the benefit of
doubt while affirming the judgment of conviction and sentence against the
appellants.
6.
Mr.
Anil Agrawal, learned counsel appearing on behalf of the appellant would raise
the following contentions before us in support of this appeal:
i. All the accused
persons having been charged for commission of murder of the deceased Krishan
under Section 302/149 of the IPC and three of them having been acquitted,
appellants could not have been convicted under Section 302 of the IPC.
ii. Both the courts
below having noticed the serious discrepancies and contradictions in the
evidences of P.Ws. 1 and 4, the impugned judgment is wholly unsustainable.
7.
Ms.
Pragati Neekhra, learned counsel appearing on behalf of the State, however,
would support the impugned judgment.
8.
P.W.
1 - Prem Singh - was with the deceased from the very beginning. He was a
witness to both the stages of occurrence, namely, the act of the two accused to
drive bullock cart through the agricultural field where mustard crop had been
grown as also the assault on the deceased by all the accused persons which had
taken place at about 3.00 p.m.
Indisputably, the
deceased was taken to a hospital. The hospital and the Police Station at Meham
was situated at a distance of about 10 kilometers from the village Nidana where
the incident had taken place. P.W.
4 - Baljit Singh was
also nearby. The deceased was taken to the hospital by a buggi. The FIR was
lodged at about 5.10 p.m. and it was recorded at 5.50 p.m. P.W. 3 - Om Prakash
Patwari drew the sketch map.
9.
As
was stated by Dr. Narender Singh (P.W.2), Medical Officer In- Charge of the
Madhath Dispensary, Rohtak, following injuries were found on the person of the
deceased :
"1. A contusion
reddish colour 8 cm x .5 cm about 7 cm below right axilla on right chest.
2. A semi circular
wound (punctured) .9 cm x .6 cm x 4 cm, (punctured wound) just above sternal
notch.
3. A semi circular
wound (punctured) .9 cm x .6 cm x 4 cm, 5cm away from above injury on left
chest below left sternoclavicular joint."
All the injuries were
found to be sufficient to cause death in the ordinary course of nature.
Correctness of the
said medical report is not in dispute. Homicidal nature of death of the
deceased is also not in dispute.
10.
We
have gone through the evidence of the first informant Prem Singh (P.W.1) and
Baljit Singh (P.W.4). Whereas P.W.1 was examined on 9.2.1996, P.W. 4 was
examined on 9.5.1997.
11.
Both
the learned Sessions Judge as also the High Court did not find any material
discrepancy in their depositions. Some contradictions and/or inconsistencies in
their testimonies were natural, but they were found to be 6 not very material.
We may in this regard place on record the following findings of the learned
Sessions Judge:
"There is
nothing on record to prove that the two witnesses had swerved from the path of
truth, either by suppression or by concoction or by the embellishment of facts
which are untrue.
Undeniably, there are
contradictions in their testimonies and they have made slight improvements from
the version given by them before the police, but the hub of their testimony
remains intact and the criticism leveled against their testimonies does not
seem to be well founded."
The appreciation of
evidence on the part of the learned Sessions Judge cannot be faulted. In his
judgment, he had analysed the depositions of P.W.1 and P.W. 4 at great details.
He not only placed on record the slight improvements made by the witnesses from
their statements made before the police but also pointed out some
inconsistencies in their depositions in the court. But the testimonies in
material particulars were found to have been truthful.
The High Court
recorded a judgment of acquittal in favour of Chand Ram, Ajmer and Dilbagh only
on the premise that the role said to have been played by them was not
corroborated by the medical evidence. The High Court arrived at the said
finding despite the fact that it placed implicit 7 reliance upon the
testimonies of P.W.1 - Prem Singh and P.W. 4 - Baljit Singh, opining:
"PW-1 Prem Singh
and PW-4 Baljit, being real brothers of the deceased, will be the last persons
to leave out the real accused and implicate the appellants. Their presence in
the fields was quite natural. Their version has remained unshaken in the
cross-examination. No major discrepancy has been pointed out in the testimony
of PW-1 Prem Singh and PW-4 Baljit. We are of the view that there is no reason
to reject the testimony of PW-1 Prem Singh and PW-4 Baljit qua appellants Prem
and Karambir @ Pappu. Adequacy or absence of alleged motive has no significance
where reliable eyewitnesses' account is available."
12.
Strong
reliance has been placed by the learned counsel on a decision of this Court in
Balaka Singh and Ors. vs. The State of Punjab [(1975) 4 SCC 511] wherein the
four accused who were said to have taken active part in the assault of the
deceased had not been named in the inquest report as also in the brief
statement by the very person who had lodged the FIR prior thereto. The Court
found that their names were deliberately added in the inquest report at the
instance of the prosecution and thus there was no guarantee as regards their
participation in the assault on the deceased. The injuries found on the body of
the deceased were either contusions, abrasion or lacerated wounds. No
penetrating or incised wounds were found to be present and, thus, the use of
sharp-cutting instrument, such as, barchha or 8 spear was held to be belied.
This Court in the peculiar facts of that case held that grain cannot be
separated from the chaff being inextricably mixed up as in the process of
separation the Court would have to reconstruct an absolutely a new case for the
prosecution by divorcing the essential details presented by it completely from
the context and the background against which they are made. It is on the
aforementioned finding the prosecution case was not believed. Such is not the
case here.
13.
It
is now a well settled principle of law that the doctrine `falsus in uno falsus
in omnibus' has no application in India.
In Jayaseelan vs.
State of Tamil Nadu [2009 (2) SCALE 506], this Court held:
"The maxim
"falsus in uno falsus in omnibus" has not received general acceptance
nor has this maxim come to occupy the status of 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 disregarded. 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 also Mani @
Udattu Man & Ors. vs. State Rep. by Inspector of Police [2009 (3) SCALE
431]}
14.
It
is also not a case where the testimonies of the eye-witnesses had been totally
disbelieved.
Benefit of doubt has
been given only because the testimonies of the witnesses in regard to the place
of assault on the person of the deceased were not corroborated by the medical
evidence. The High Court failed to notice that all the accused persons were
charged of having common object of causing murder. A few of them might have
taken active part and others might have aided and abated the commission of the
offence. It is, however, neither possible nor necessary to delve into the said
question as the State has not filed any appeal questioning the correctness of
the said order. The fact, however, remains that both the courts below have
placed implicit reliance on both P.W.1 and P.W.4. We see no reason to take a
different view.
15.
The
second contention of the learned counsel, in our opinion, is also without any
merit. It may be true that all the five accused persons were said to have a
common object; they were punished under Section 302/149 of the IPC; but the
same would not mean that only because three of them were given benefit of doubt
on a premise which may not be wholly correct, no case of common intention has been
made out against the appellants.
They came together
armed. They had threatened the deceased. They went back together. It has not
been established that the appellants herein had in any way been prejudiced by
non-mentioning of Section 34 of the IPC in the concluding portion of the
judgment of the High Court. The High Court, in its judgment, however,
categorically stated:
" As regards
Karambir @ Pappu, who has been attributed simple injury on the head, we are of
the view that both the accused clearly shared common intention. They came
prepared with deadly weapons and both have assaulted the deceased on vital
parts of the body. It is not a case of sudden occurrence. The deceased died
almost immediately as a result of the injuries received.
There is no reason to
doubt sharing of common intention by Karambir @ Pappu. He cannot, thus, avoid
responsibility for causing of the death. Even if injury individually attributed
to him is held to be simple, it cannot be held that he could not have
pre-conceived the result of the assault.
Accordingly, while
conviction and sentence of Chand Ram, Ajmer and Dilbagh are set aside and qua
them, the appeal is allowed and they are acquitted, conviction and sentence of
Prem and Karambir @ Pappu is upheld and qua them, the appeal is
dismissed."
16.
A
judgment as is well known is not to be read as a statute. It must be read
reasonably and in its entirety. The effect of a judgment must be found out from
the wordings used by it and the attending circumstances in which they have been
used. The High Court, on a plain reading of its judgment has attributed common
intention on the part of the appellants in committing the aforementioned crime.
Their conviction under Section 302/34, therefore, 11 was justified. In absence
of any prejudice having been shown on the part of the accused, this court on
such technicalities alone would not interfere with the impugned judgment.
In Dhaneswar Mahakud
& Ors. vs. State of Orissa [(2006) 9 SCC 307], this court held:
"23. The nature
of the injuries sustained by the deceased clearly indicates the intention of
the accused-appellants to do away with the deceased.
The evidence of the
witnesses along with the injuries reported in post-mortem reports clearly bring
out the common intention of the accused- appellants and we do not think that
the accused- appellants would be prejudiced merely because the charge was
framed under Section 302 read with Section 149, IPC and not under Section 302
read with Section 34, IPC. From the evidence of two witnesses, PW-5 and PW-7,
it would appear that the accused-appellants shared the common intention to
cause death of the victims."
17.
While
we say so, we are not oblivious of the distinction between the common object
and common intention. But when a common intention can also be found out on the
basis of the testimonies made by the witnesses examined on behalf of the
prosecution, the High Court in a situation of this nature was totally justified
in affirming the said opinion.
12 See Jaswant Singh
v. State of Haryana [(2000) 4 SCC 484 paragraph 22 to 25] Recently in Y.
Venkaiah vs. State of A.P.[2009 (4) SCALE 154], this Court held:
"31. The
Constitution Bench of this Court in Mohan Singh and Anr. v. State of Punjab -
AIR 1963 SC 174, construed the scope of Section 34 and compared it with Section
149 and pointed out the essential distinction between the two. Justice
Gajendragadkar (as His Lordship then was) speaking for the Constitution Bench
held that like Section 149, Section 34 also deals with cases of constructive criminal
liability in the sense where a criminal act is done by several persons in
furtherance of the common intention of all, each of such persons is liable for
that act in the same manner as if it were done by him alone. According to the
Constitution Bench, the essential constituent of the vicarious criminal
liability contemplated by Section 34 is the existence of common intention.
When such common
intention animates the accused persons and leads to the commission of the
criminal offence charged, each of the persons sharing the common intention is
constructively liable for the criminal act done by one of them.
The Constitution
Bench held that in some ways Section 34 and Section 149 are similar and in some
areas they may overlap but nevertheless the common intention, which is the
sine-qua-non of Section 34 is different from the common object which brings
together an unlawful assembly of persons within the meaning of Section 149 of
the Code."
18.
For
the reasons aforementioned, there is no merit in this appeal. It is dismissed
accordingly.
......................................J.
[S.B. Sinha]
......................................J.
[Dr. Mukundakam Sharma]
New
Delhi;
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