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PETITIONER:

HOSHIAR SINGH AND ORS.

Vs.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT29/10/1991

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

KULDIP SINGH (J)

CITATION:

1992 AIR 191 1991 SCR Supl. (1) 575

1992 SCC Supl. (1) 413 JT 1991 (4) 344

1991 SCALE (2)900

ACT:

Indian Penal Code, 1860:

Ss. 148, 149, 302, 302/149, 307, 307/149:

Murder, attempt to murder--Trial of 9 accused--Acquittal

of 4 and con viction of 5---Validity of..

Evidence Act, 1872:

Murder and attempt to murders-Large number of partici-

pants Acquittal of some accused and conviction of the oth-

ers---Prosecution evidence Credibility of. Maxim--Falsus in

uno falsus in omnibus---Applicability of Exhortation--Evi-

dentiary value of.

HEADNOTE:

A litigation regarding possession of a certain plot of

land was pending in the civil court between the complainants

and the accused persons. On 16.12.1975 at about 8 a.m. the

accused, armed with fire-arms and sharp edged weapons,

reached the outer-house of the complainants and attacked

them. According to the prosecution case, accused No. 4 who

was unarmed, raised an exhortation challenging deceased-1l,

and caught hold of his long hair while accused 1 fired a

rifle shot at him and accused No.7 gave two successive

gandasa blows on his head. Accused No.9 fired a shot at PW

15. Accused nos.6 and 8 fired one shot each at deceased-2

who also succumbed to his injuries. PW 16 was fired at by

accused No. 2 hitting him at the left arm and flank. Accused

No. 3 and 5 gave blows from the reverse side of gandasa and

spear to PW. 17 and another woman respectively. On the side

of the accused, a spear blow of accused No. 5 accidently his

accused no. 9 and a shot fired by accused No. 6 accidently

hit another man on the side of the accused who later on

died. Besides the members of the complainant's family, the

neighbours, PWs, 18 & 19 also witnessed the occurrence. The

accused were alleged to have run away taking a rifle and

revolver belonging to the complainants. The police investi-

gation culminated in the trial of the 9 accused.

576

The Trial Court acquitted four accused (nos.1 and 3 to

5 ) but convicted the appellants (accused nos. 2 and 6 to

9) of offences punishable under ss. 148, 149, 302, 302/149,

307 and 307/149 and sentenced them to various terms of

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imprisonment.

The appeal filed by the appellant having been dis-

missed by the High Court, an appeal by special leave to

this Court was filed.

It was contended on behalf of the appellants that the

four accused having been acquitted despite the eye witnesses

deposing to their participation in the alleged incident, no

credence should be given to the

prosecution witnesses in order to maintain the convic-

tion; and that the prosecution failed to explain the way the

injuries were caused to the

persons on the accused side.

Dismissing the appeal, this Court,

HELD :1. The large number of participants in the

occurrence would, at some place or the other leave a place

for entertaining some doubt. But in the instant case the

prosecution case as a whole remained strong supparted as it

was by the independent evidence of P.Ws.18 and 19, the

neighhours. The occurrence took place in the Courtyard of

the outer house of the complainant party. Blood stained

earth was collected from four places therein during investi-

gation. In the totality of circumstances it cannot be said

that the maximfalsus in uno falsus in omnibus was attracted.

[583 H; 584A,C]

2. Exhortation is necessarily not a padding or over

doing and has to be

viewed in the correct perspective, in the facts and

circumstances of each case. [582E]

In the instant case, the roles assigned to accused no. 4

who was acquitted, that he gave [an] exhortation, caught

hold of the long hair of deceased-1 and carried away his

rifle after the incident, were, according to the Sessions

Judge, part of the overdoing. The fact that the rifle was

being carried by the accused at the time of his arrest was

considered by him to be abnormal as otherwise in the normal

course of events it was expected to have been kept con-

cealed. The Sessions Judge held that he was not satisfied

about the criminality of accused No. 4. [582 C-D]

577

Besides the exhortation, there were other factors avail-

able which could lead the Sessions Judge to take the view

that he had, and that was a possible view which any cautious

Judge could have taken. But that per se does not mean that

the witnesses who had deposed to the participation of the

accused at the time of occurrence have to be dubbed as

liars. [582 E-F]

Jainul Haque v. State of Bihar, AIR 1974 SC 45, referred to.

3.1 With respect to acquitted accused No. 3, the SeS-

sions judge held that though PW 17 had received injuries

from the reverse side of the gandasa from the accused still

in the FIR the use of weapon was mentioned but not the

manner in which it was used; and that it was normally ex-

pected of the accused to have given at least one gandasa

blow to someone from the sharp side. Besides his taking away

the revolver from the victim after the occurrence did not

inspire confidence. In the circumstances, the act of remov-

ing the revolver was viewed with suspicion, more so, when

its recovery was made as a result of the disclosure state-

ment after a span of eight days of the arrest of the ac-

cused. The view of the Sessions Judge that the case against

acquitted accused No. 3 did not stand beyond reasonable

doubt was a possible view taken on a cautious approach,

without telling on the veracity of the prosecution witness-

es. [582 G-H; 583 A-B]

3.2 Acquitted accused No. 5 was said to have used a

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spear bluntwise but the concerned victim was not found to

have any stab or punctured wound. The recovery of the spear

taking place after seven days of arrest of the accused was

viewed with suspicion due to the time lag. There was omis-

sion in the FIR of the specific manner in which the weapon

had been used. The finding of benefit of doubt to accused

No.5 could be given by the Sessions Judge without causing

least dent to the prosecution case. Shifting the grain from

the chaff does not mean loss of grain and gain of chaff.

Such a view of the learned Judge cannot cast a reflection on

the case as a whole. [583 C-E]

3.3 As regards acquitted accused No.1, finding the

description of the weapon being in discord with the medical

evidence the Sessions Judge held the prosecution case not to

have been proved against the accused. Even though the Ses-

sions Judge did not extend the benefit of doubt to the

accused in so many words, his approach was an exercise in

that direction. The acquittal of accused No.1 too would

cause no affectation to the prosecution case as a whole.

[589 F-G]

578

4.1 The first information report specifically mentioned

that the injuries to the persons on the side of the accused

were as a result of the doings of accused persons them-

selves; and all the eye witnesses cogently and consistently

deposed to that effect. [584 B-C]

4.2 The time of the occurrence being 8.00 a.m. and the

inmates of the 'house being busy with their daily

chores, the complainant party would not

anticipate an assault and be ready with fire-arms to put

them to use. The fact that the licensed weapons of the

complainant party were not shown to have been used by itself

established that the injuries received by the persons on the

side of the accused were accidental and suffered in the man

ner as suggested by the prosecution. [584 D-E]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.404 of

1979.

From the Judgment and order dated 19.4.79 of the

Punjab High Court in Criminal Appeal No.843 of 1976.

A.N. Mulla, N.D. Garg and T.L. Garg for the Appellants.

Ms. Amita Kohli and R.S. Suri for the Respondents.

The Judgment of the Court was delivered by

PUNCHHI, J. This appeal by special leave is directed

against the judgment and order of the Punjab and Haryana

High Court at Chandigarh dated April 19, 1979 passed in

Criminal Appeal No. 843 of 1976.

The appellants herein are five in number. They along

with four others were sent up for trial before the Court of

Session, Faridkot on various charges as detailed in the

judgment under appeal. Those four co-accused of the appel-

lants were acquitted by the learned Sessions Judge, and the

matter seems to have rested there because apparently the

State of Punjab did not rake up the issue against those four

accused. On the basis thereof, the principle plea of the

appellants through their counsel herein is that when four

accused have been acquitted, the prosecution story itself

has lost credence, entitling the appellants to acquittal. It

is this plea which has engaged our attention.

579

The parties belong to village Talwandi Bhagerian, Distt.

Faridkot, Punjab. Thereat was a vacant plot belonging to

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Karnek Singh, Jagatjit Singh and Wasakha Singh sons of

Partap Singh, who were living abroadAdjoining thereto was

the outer house of Balwant Singh P.W.15. According to the

prosecution, Balwant Smgh P.W.15 had put up a boundary wall

around it as also a structure thereon storing wheat chaff

therein, besides putting cotton sticks and dung manure in

the unbuilt space. Mohinder Singh son of the said Balwant

Singh P.W.15 moved the Civil Court through a suit on Decem-

ber 10, 1975 seeking a decree for permanent injunction

restraining his co-villager Jiwan Singh, his sons Naib Singh

appellaht herein and Mohinder Singh an acquitted co-accused,

as also the minor sons of the aforesaid two accused from

interfering in his possession over the suit land. The Court

on December 10, 1975 granted interim injunction restraining

the impleaded defendants from interfering with the posses-

sion of the plaintiff over the disputed plot. Later on the

request of the defendants, the Civil Court on 29-1-1976

identified the suit property being in Khasra No.345, 346 and

356 and out of the same vide Order Ex.D-16, vacated the

temporary injunction in respect of Khasra No. 345 and 346

confirming the same in respect of Khasra No.356. Besides

there had been security proceedings between Mohinder Singh

aforesaid and his brother Ginder Singh (one of the victims)

on the one hand and Nirmal Singh and Darshan Singh acquitted

co-accused and some others, on the other. However, both

parties were ultimately discharged by the Court.

The occurrence took place in that integral on 16-12-1975

when the temporary injunction was in force. The complainant

party except for P.Ws. 18 and 19 are members of one family.

This relationship is disclosed in the judgment of the

learned Sessions Judge as also by the High Court. We would

not burden this judgment with details thereof. The fact

remains that on the night intervening 15th and 16th Decem-

ber, 1975, Jugraj Singh P.W.14, Balwant Singh P.W.15, Ginder

Singh, since deceased and Assa Singh had slept in a room in

their outer house, and where they were keeping their cattle

also. At about 8.00 a.m. on December 16, 1975, all the

inmates of the outer house, and others having joined them

having come from their residential house, at that' time were

busy doing their assigned chores. At that juncture, the five

appellants namely, Hoshiar Singh, armed with SBBL gun,

Jalaur Singh, armed with a 12 bore DBBL gun, Ex.M.O/5,

Sardara Singh, armed with a gandasa, Ex.M.O./2, Ram Singh

alias Ram Charan Singh, armed with SBBL gun, Ex.M.O./6 and

Naib Singh son of Jiwan Singh, armed with a DBBL gun,

Ex.M.O./7 entered the house accompanied by five other men.

They were the four acquitted co-accused namely, Thamman

Singh, unarmed, Darshan Singh, armed with a gandasa,

580

Mohinder Singh, son of Jiwan Singh (brother of Naib

Singh, appellant) armed with a spear, Nirmal Singh, armed

with a rifle and Major Singh, the fifth man, armed with a

DBBL gun, who was lately injured during the occurrence.

Thamman Singh acquitted co-accused raised an exhortation

challenging Ginder Singh that he would not be spared. Tham-

man Singh, then caught hold of the long hair of Ginder

Singh and thereupon Nirmal Singh acquitted co-accused

fired a shot with his rifle hitting Ginder Singh on his left

flank. On Ginder Singh falling down by the side of the

manger, Sardara Singh appellant gave two successive gandasa

blows on the head of Ginder Singh deceased while he was in

the process of failing down. This was the first casualty. It

was followed by Naib Singh appellant firing at Balwant

Singh P.W.15 hitting him in the abdomen reflective of at-

tempt to murder. Dhanna Singh alias Shinghara Singh a

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member of the complainant's family also happened to reach

the scene of the occurrence having come from the residential

house and while in the door way was fired at by Jalaur Singh

appellant with his gun followed by a gun shot by Ram Singh

alias Ram Charan Singh appellant hitting Dhanna Singh. This

was the second casualty. Sukhminder Singh, P.W.16 also

reached there and was fired at by Hoshiar Singh appellant

hitting him on the left arm and blank, where upon he fell

down. This was the second case reflecting attempt to murder.

The female folk Bhagwan Kaur P.W.17 and Raj Kaur present at

the place of occurrence while raising alarm laid themselves

over Ginder Singh and Sukhvinder Singh respectively. Darshan

Singh acquitted co-accused gave blows from the reverse side

of his gandasa to Bhagwan Kaur P.W.17, and Mohinder Singh

co-accused to Raj Kaur with the blunt side of his spear.

Apart from the members of the family involved Sukhdev Singh

P.W.18, Pritam Singh P.W,19, neighbours, had occasion to see

the occurrence while standing in their respective houses. On

the side of the accused party, so claimed the prosecution, a

Barchha(spear) blow of Mohinder Singh meant to hit Raj Kaur

accidently hit the abdomen of Naib Singh appellant. Like-

wise, a shot fired by Jalaur Singh appellant accidently

caused injury to Major Singh the co-culprit, but that injury

later proved fatal. The accused persons took away not only

their weapons but a licensed rifle of Ginder Singh and

revolver of Mohinder Singh son of Balwant Singh P.W.15 from

inside the room (baithak) while going away. This is the

whole prosecution case with regard to the motive and the

actual occurrence.

To complete the picture the deceased persons were

taken to the Civil Hospital, Moga wherefrom Dr.A.C. Gupta

P.W.I sent intimation to Police Station, Moga Sadar. Avtar

Singh, ASI. P.W.20 reached the spot and recorded the

statement of Jugraj Singh P.W.14 at 11.00 a.m., within three

581

hours of the occurrence, formal F.I.R. of which was recorded

at the Police Station at 11.15 a.m. In that statement vivid

details of the occurrence are given. The injured persons

were examined and given medical aid. The bodies of the

deceased persons were subjected to post-mortem. The accused

were arrested and weapons were recovered, either from them,

or at their instance, on statements made under Section 27 of

the Evidence Act. The accused at the trial pleaded denial to

the occurrence but Naib Singh appellant gave written state-

ment, Ex.D-6 as his counter version. The trial resulted in

the acquittal of four persons but so far as the appellants

were concerned, all of them were held guilty and convicted

under Sections 148, 449 IPC awarding them various terms of

sentences. Substantively, Sardara Singh appellant was con-

victed under Section 302 IPC for having caused the death of

Ginder Singh by giving him two fatal gandasa blows. The

remaining appellants were convicted constructively under

Sections 302/149 IPC. All of them were given life sentence.

Jalaur Singh and Ram Singh appellants were substantively

convicted under Section 302/149 IPC for causing the death of

Dhanna Singh and the remaining appellants under Sections

302/149 IPC, and all were awarded life sentence. Naib Singh

appellant was substantively convicted under Section 307 IPC

for murderously attacking Balwant Singh P.W.15, as also

Hoshiar Singh appellant under Section 307 IPC for murderous-

ly attacking Sukhminder Singh P.W.16. The remaining four

appellants in each case were convicted constructively under

both counts under Sections 307/149 IPC and awarded various

terms of imprisonment. All the sentences imposed were or-

dered to run concurrently. Appropriate orders of disposal

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with respect to the weapons recovered were passed by the

learned Sessions Judge.

As indicated above, the main plea of the appellants is

that four accused having been acquitted, despite the eye-

witnesses deposing to their participation, no credence

should be given to the prosecution witnesses in order to

maintain the convictions. The maxim falsus in uno falsus in

omnibus has been pressed into service. It appears that the

argument as such was not raised before the High Court.

Rather it appears that the High Court's attention was not

invited to the reasoning of the learned Sessions Judge in

acquitting the four co-accused. It would be apt therefore to

scrutinize that reasoning and see whether the prosecution

case has lost credibility on such reasoning.

Thamman Singh acquitted accused was empty handed. The

role attributed to him is that he gave an exhortation chal-

lenging Ginder Singh deceased to be ready and that he would

not be spared. He then caught hold of the long hair of

Ginder Singh. Thereafter Ginder Singh was as-

582

saulted. At the end of the occurrence, he is blamed of

having taken away the licensed rifle of Ginder Singh. The

learned Sessions Judge tended to go in generalities in

terming that the evidence of exhortation, in the very nature

of things, is a weak piece of evidence and there was quite

often a tendency to implicate some person besides the actual

assailant. For this he took the cue from a reported decision

of this Court in Jainul Haque v. State of Bihar, AIR 1974 SC

45 as well as a decision of the Punjab and Haryana High

Court to that effect in support. Then without coming to the

specifics the learned Sessions Judge abruptly came to the

conclusion that when Thamman Singh acquitted co-accused had

come to the spot empty handed, the exhortation appears to

have been introduced in the prosecution case and that the

witnesses apparently were out to rope him in. The two roles

attributed to him, namely, of catching the long hair of

Ginder Singh and to have carried away the rifle of Ginder

Singh went in the same sweep to hold that this was part of

the over doing. The fact that the rifle was being carried by

Thamman Singh at the time of his arrest was considered by

the learned Sessions Judge to be abnormal as otherwise in

the normal course of events, it was expected to have been

kept concealed somewhere. His finding thus in his own words

is "the fact remains that I have not been satisfied about

the criminality of Thamman Singh." The only comment worth

making is that exhortation is necessarily not a padding or

over doing and has to be viewed in the correct perspective,

in the facts and circumstances of each case. In the instant

case, besides the exhortation, there were other factors

available enumerated herein, which could lead the learned

Sessions Judge to take the view that he has, and that was a

possible view which any cautious Judge could have taken. But

that per se does not mean that the witnesses which had

deposed to the participation of the accused at the time of

occurrence have to be dubbed as liars.

With regard to Darshan Singh acquitted accused, the role

assigned to him is that he gave gandasa blows to Bhagwan

Kaur P.W.17 from the reverse side and that he took away the

licensed revolver of Mohinder Singh from the room (baithak)

of the outer house. The learned Sessions Judge opined that

though the eye witnesses account was that Bhagwan Kaur had

received injuries from the reverse side of the gandasa from

Darshan Singh, still in the First Information Report given

by Jugraj Singh P.W.14, the use of the weapon was mentioned

but not of the manner in which it was used. The learned

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Sessions Judge took the view that it was normally expected

of Darshan Singh to have given at least one gandasa blow to

someone from the sharp side as well. Besides his taking away

the revolver from Mohinder Singh after the occurrence did

not inspire confidence, like the case of Thamman Singh.

Besides if these two weapons namely the rifle and the

583

revolver were available with the complainant party when the

occurrence started it was expected of them to have used

those, which had not appeared to have been used. In that

light the act of removing the revolver was viewed with

suspicion, more so, when its recovery was made as a result

of the disclosure statement after a span of eight days from

the date of arrest of Darshan Singh. The learned Sessions

Judge then concluded with these words, "The case against

Darshan Singh, accused does not again stand beyond reasona-

ble doubt". Now such a view of the learned Sessions Judge

was a possible view taken on a cautious approach, without

telling on the veracity of the prosecution witnesses.

So far as Mohinder Singh acquitted accused is concerned,

he is said to have used a spear blunt-wise on Raj Kaur. Raj

Kaur was not found to have any stab or punctured wound.

Further the spear was recovered after seven days of the

arrest of Mohinder Singh and that recovery was viewed with

suspicion due to the time lag. The version in F.I.R. was

pressed into service about the omission of the specific

manner in which the weapon had been used. The learned Ses-

sions Judge then held, "I would accordingly give the benefit

of doubt to Mohinder Singh accused and acquit him." This

finding could be given by the learned Sessions Judge without

causing the least dent to the prosecution case. Shifting the

grain from the chaff does not mean loss of grain and gain of

chaff. Such a view of the learned Judge cannot caste a

reflection on the case as a whole.

Lastly Nirmal Singh acquitted accused was described in

the F.I.R. to be armed with a "pakki banduq" which descrip-

tion the learned Sessions Judge translates as "rifle". Since

Nirmal Singh is accused to have begun the occurrence by

firing at Ginder Singh and Ginder Singh had pellets seen in

his dead body, such description of the weapon sowed the

seeds of suspicion in the mind of the learned Sessions

Judge. It was at best either a case of a mistaken perception

or flash impression that Nirmal Singh, undisputably being a

licensee of a rifle, had that rifle. Finding the description

of the weapon being in discord with medical evidence, the

learned Sessions Judge found the prosecution case not proved

against Nirmal Singh acquitted accused. Here even though the

learned Judge did not extend the benefit of doubt to Nirmal

Singh in so many words, his approach is an exercise in that

direction. The acquittal of Nirmal Singh too would cause no

affectation to the prosecution case as a whole.

For the views afore-expressed and the totality of the

circumstances, we do not think that in the instant case the

maxim falsus in uno falsus in omnibus is attracted. The

large number of participants in the occurrence would, at

some place or the other, leave a place for entertaining some

584

doubt. But here the prosecution case as a whole remains

strong supported as it is by the independent evidence of

P.Ws 18 and 19, the neighbours, and the occurrence having

taken place in the house of the complainant party.

It was next contended that the prosecution has cocealed

its own guilty part and has not explained the way the in-

juries were caused to Major Singh Deceased and to Naib Singh

appellant. The argument' is barely to be noticed and reject-

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ed. Significantly Jugraj Singh in the First information

Report specifically mentioned that the injuries to Major

Singh deceased and Naib Singh appellant were as a result of

the doings of accused persons themselves and in the circum-

stances narrated above all the eye witnesses have cogently

and consistently deposed to that effect. The findings of

both the courts below are that the occurrence took place in

the courtyard of the outer house of the complainant party.

Blood stained earth was collected from four places therein

during investigation. Time of the occurrence being 8.00 a.m.

and the inmates of the house being busy with their daily

chores leaves one to pose the question as to why should the

complainant party anticipate an assault and be ready with

fire-arms to put them to use. It does not stand to reason

that the complainant party having licensed weapons, if

anticipating an assault, to hhave not kept the same ready

for use. The fact that these licensed weapons of the com-

plainant party are not shown to have been used by itself

goes a long way to establish that the injuries received by

Major Singh deceased and Naib Singh appellant were acciden-

tal and suffered in the manner as suggested by the prosecu-

tion. On this score also we remain unconvinced of the argu-

ment.

Having examined the prosecution case as finally estab-

lished at the level of the High Court and having seen the

reasoning of the Court of Session in acquitting the four

accused, and also for the reasons set out above, we go to

hold the appeal to be devoid of merit and accordingly dis-

miss the same. The appellants are on bail. They are required

to surrender to their bail bonds forthwith-.

R.P. Appeal dis-

missed.

585