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PETITIONER:

STATE OF HARYANA

Vs.

RESPONDENT:

TEK SINGH AND OTHERS

DATE OF JUDGMENT: 03/05/1999

BENCH:

G.B.Pattanaik, M.B.Shap

JUDGMENT:

Shah,J.

In the Court of Addl. Sessions Judge-III, Hissar in

Sessions Case No. 57 of 1988/33 of 1990, 8 persons namely,

(1) Tek Singh, (2) Gurbachan Singh, (3) Gurmel Singh, (4)

Mela Singh, (5) Baldev Singh, (6) Megha Singh, (7) Sajan

Singh and (8) Jaspal Singh were charged for the offences

punishable under Section 148, 449 and 302 read with Section

149 of I.P.C. for committing the murder of Tek Singh and

Gurdev Singh inside the house of Tek Singh (deceased). By

judgment and Order dated 26th March 1991, Additional

Sessions Judge, Hissar convicted all the aforesaid 8 accused

under Sections 148, 449 & 302 read with Section 149 of

I.P.C. Against the said judgement and order, accused

preferred Criminal Appeal No. 153- DB of 1991 before the

High Court of Punjab and Haryana at Chandigarh. By the

judgment and order dated 23rd October, 1992, the High Court

acquitted 5 accused, namely, Tek Singh(A-1), Mela

Singh(A-4), Gurmel Singh(A-3), Sajan Singh(A-7), Jaspal

Singh(A- 8) and confirmed the conviction of remaining 3

accused, namely, Gurbachan Singh(A-2), Baldev Singh(A-5) and

Megha Singh(A-6) for the offence punishable under Section

302 read with Section 34, I.P.C. and their conviction and

sentence under Section 449 I.P.C. was also maintained.

Against the said judgment and order, the State of Haryana

has preferred this appeal. At the time of admission of the

appeal, this Court dismissed the Special Leave Petition

against the convicted accused, namely, Gurbachan Singh

(A-2), Baldev Singh (A-5) and Megha Singh (A-6). The

prosecution version is because of the Gram Panchayat

elections of Village Talwara and as some understanding

between the accused Tek Singh (A-1) and Gurdev Singh was not

honoured by Tek Singh, there was altercation between Tek

Singh and Chet Singh, brother of the deceased Gurdev Singh.

It is also stated that about 8 to 9 months prior to the

occurrence, Tek Singh (deceased) was convicted for causing

injuries to Mrs. Mukhtiar Kaur, his sister-in- law. He was

released on parole one day prior to the occurrence. On 14th

September, 1988 at about 8.30 p.m., Tek Singh and Gurdev

Singh (both deceased) were sitting on a cot outside the

house of Tek Singh, the accused armed with weapons including

gun, rifle and gandasa, firing shots and shouting that Tek

Singh and Gurdev Singh should be finished, arrived there

from the side of Tek Singhs house. On seeing the accused,

both deceased rushed inside the house of Tek Singh, the

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accused chased them and entered the house where Mrs. Bant

Kaur, wife of Tek Singh (deceased) was present. It is also

say of witnesses Chet Singh, P.W.5, Bhola Singh P.W. 7 and

one Mohinder Singh that they reached at the scene of offence

after returning from their fields and answering the call of

the nature. It is the version of the witnesses that accused

caused injuries to deceased Tek Singh by giving Gandasa

blows. It is stated that Baldev Singh gave Gandasa blow on

the neck, Mela Singh gave gandasa blow on the right

shoulder, Jaspal Singh gave gandasa blow on right arm, Megha

Singh gave gandasa blow on right knee, Gurmel Singh gave

gandasa blow on left hip joint, Sajan Singh gave four to

five gandasa blows in quick succession on waist. It is

further stated that Gurbachan Singh (A-2) fired from his

rifle hitting deseased Gurdev Singh on his right thigh and

other accused persons gave gandasa blows. Thereafter, all

the accused along with the respective weapons went towards

their houses and at that time Tek Singh (A-1) and Gurbachan

Singh fired from their gun and rifle in the air while

leaving the spot. The witnesses Chet Singh and Bhola Singh

rushed to the police station and lodged report at 11.30 p.m.

with SI Ramesh Pal. The special report of the FIR was

conveyed to Illaqa Magistrate, Hissar at 4.50 a.m. during

the same night. The accused continued absconding till 22nd

September, 1988 on which date at the bus station, Tek Singh,

Gurbachan Singh, Mela Singh and Gurmel Singh were arrested.

At that time, Tek Singh was carrying his licence .12 bore

gun Ex. P34 which was taken in possession after putting it

in a sealed parcel. Thereafter, other fire arm was also

recovered. Gandasas from Gurmel Singh (A-3) and Mela Singh

(A- 4) also were recovered and were sent to the Forensic

Science Laboratory, Madhuban and its report stated that

human blood was found on one of Gandasas. With regard to

the fire arms, rifle and gun, they were found intact and in

working order and also after examining the hole in the

Tehmad (lion cloth) put on by deceased Gurdev Singh, it was

reported that it was the result of bullet projectile.

Before the Sessions Court in their respective statements

under Section 313 of Cr. P.C., the accused contended that

they were falsely implicated, it has also been pointed out

that Ram Nath, brother of Sajjan Singh, accused had suffered

injuries and for that purpose, report was lodged by Ram

Nath. Jaspal Singh, (A-8) had taken the plea of alibi and

for that purpose, witnesses have examined to prove that bhog

ceremony in connection with the last rites of Bhura Singh

took place on 14.9.88 and Jaspal Singh being the son- in-law

of Amarjeet Singh, brother of the Bhura Singh attended that

ceremony and he along with his wife stayed for the night

with them. The learned Additional Sessions Judge relying on

the eyewitnesses evidence of Chet Singh, Mrs. Bant Kaur

and Bhola Singh, coupled with the medical evidence and

circumstantial evidence convicted and sentenced all the

accused. In appeal, the High Court reappreciated the entire

evidence in the light of the contentions raised by the

learned Counsel for the parties. The High Court, in appeal

arrived at the conclusion that prosecution has failed to

prove motive of Tek Singh or his brothers Baldev Singh,

Megha Singh or his nephew Mela Singh, Jaspal Singh joining

the remaining other accused in assaulting the deceased Tek

Singh and Gurdev Singh. The Court observed that it cannot

be stated that the presence of witness Chet Singh who

happens to be the real brother of Gurdev Singh (deceased)

and Bhola Singh P.W. 7 who is the son of the deceased

Gurdev Singh cannot be said to be unnatural or that they

cannot be termed as chance witnesses. However, their

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evidence is to be appreciated with care and due caution.

The High Court, however, stated that considering the

measurement of the room where the dead body of Gurdev Singh

lay, it was not possible to believe that it could

accommodate accused persons to enter with their weapons and

kill Gurdev Singh inside the house. The Court further took

note of the fact that ocular evidence of the witness

required to be appreciated with due caution qua the

participation of each of them in the occurrence especially

when Investigating Officer reported, under Section 173 of

the Criminal Procedure Code, that Baldev Singh, Megha Singh,

Sajan Singh and Jaspal Singh were found innocent.

Thereafter, High Court considered the medical evidence and

appreciated the evidence of each witness to find out whether

the medical evidence corroborates the version of the

prosecution witnesses. The Court held that qua the

respondents, that is, A-1, A-2, A-3, A-7 & A-8, medical

evidence does not corroborate the evidence of the eye

witnesses. Qua the remaining accused A-2 Gurbachan Singh,

A-5 Baldev Singh and A-6 Megha Singh, medical evidence

corroborated prosecution evidence. Hence, they were

convicted and rest of them were acquitted. In this appeal,

Ms. Shikha Ray Pabbi, learned Counsel for the

appellant-State vehemently contended that the reasons given

by the High Court in reversing the finding of conviction of

the respondents- accused are, on the face of it, erroneous.

She submitted that the entire approach of the High Court in

appreciating the evidence of the eye-witnesses and giving

benefit of doubt on insignificant omissions or

contradictions or on the ground that it is not corroborated

by the medical evidence is, on the face of it, erroneous and

has resulted in grave miscarriage of justice. As against

this, learned Counsel for the respondents submitted that the

High Court has rightly appreciated the evidence and arrived

at the conclusion that role assigned to the respondents and

their participation in crime by the witnesses was not

established in view of medical evidence. It is submitted

that there is material improvement in the version of the

prosecution witnesses at the time of trial in order to make

their testimony in line with the medical evidence. It is,

therefore, submitted that this is not a fit case for

interference by this Court in this Appeal under Article 136.

In our view, considering the evidence of prosecution

witnesses and the reasons recorded by the Trial Court, it is

apparent that the entire approach of the High Court in

appreciating the evidence of the eye-witnesses is erroneous.

Further, the Court ought not to have taken into

consideration the report of the Investigating Officer under

Section 173 of the Cr. P. C. wherein it was stated that

Baldev Singh, Megha Singh, Sajan Singh and Jaspal Singh were

innocent while appreciating the evidence led before the

Court. However, it has to be stated that after appreciating

the evidence of eye-witnesses, the High Court itself has

confirmed the conviction of Baldev Singh (A-5) and Megha

Singh (A-6) who were found innocent by the Investigating

Officer. Their conviction is also confirmed at the time of

granting leave to appeal. This reveals non-application of

mind by the High Court to the facts of the case. Further,

the Court while appreciating the evidence ought to have kept

in mind and visualised the situation at the time of

occurrence of the incident. Evidence of the witness should

be appreciated by keeping ground reality and fact-situation

in mind. It is also established law that even with regard

to the interested witness, it is the duty of the Court to

separate truth from falsehood and the chaff from the grain.

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In view of the close relationship, witnesses naturally would

have a tendency to exaggerate or add facts but while

appreciating the evidence exaggerated facts are to be

ignored unless it affects substratum of prosecution story.

In the case of State of U.P. Vs. M.K. Anthony AIR (1985)

S.C. 48, this Court pointed out that while appreciating the

evidence of a witness, the approach must be whether evidence

of the witness read as a whole appears to have a ring of

truth. Once that impression is found, it is undoubtedly

necessary for the Court to scrutnise the evidence more

particularly keeping in view the deficiencies, drawbacks and

infirmities pointed out in the evidence as a whole and

evaluate them to find out whether it is against the general

tenor of the evidence and whether the earlier evaluation of

the evidence is shaken as to render it unworthy of belief.

Minor discrepancies of trivial matters not touching the core

of the case, hyper-technical approach in persuasion of the

evidence should be avoided. The Court pertinently observed:

Even honest and truthful witnesses may differ in some

details unrelated to the main incident because power of

observation, retention and reproduction differ with

individuals. Cross examination is an unequal duel between a

rustic and refined lawyer. In the present case, the

evidence of P.W.6, Bant Kaur, wife of the deceased Tek Singh

is accepted by the High Court. Her presence at the scene of

offence was natural particularly considering the fact that

deceased was released on parole a day prior to the date of

incident. She has narrated the entire incident. She has

stated that her husband Tek Singh was convicted in a

criminal case for causing injuries to Mrs. Mukhtiar Kaur.

At 8.30 p.m., she was present in the courtyard and that all

the accused came from the side of Tek Singhs house while

firing and raising lalkaras. Tek Singh (A-1) was armed with

the gun, Gurbachan Singh (A-2) was armed with rifle while

remaining accused were armed with gandasas. On seeing them,

Tek Singh and Gurdev Singh who were sitting out on the cot

came inside the room; all the accused also entered the

house; Baldev Singh gave gandasa blow on the back of the

neck of Tek Singh as a result of which he fell down on the

ground; while he was lying, Mela Singh inflicted injuries

with gandasa on his right side face. Jaspal Singh gave

gandasa blow on his right shoulder. Megha Singh gave

gandasa blow on his right knee, Mela Singh gave a gandasa

blow on his left buttock, Sajan Singh gave four to five

injuries with gandasa on his abdomen. Bachan Singh fired a

shot from his rifle at Gurdev Singh which hit on his right

thigh as a result of which he fell down on the ground. She

has further stated that other accused assaulted Gurdev Singh

with gandasa. With regard to Mrs. Mukhtiar Kaur, she has

stated that either she was her Jethani or Devrani and she

was the wife of Gurbachan Singh (A-2). She has also stated

that when she tried to intervene, she was pushed by the

accused. Mohinder Singh is a son of maternal uncle but they

were not on visiting terms with him. The witnesses Chet

Singh P.W. 5 and Bhola Singh, P.W. 7 have fully

corroborated her evidence and narrated the incident in

detail. As stated by the witness Chet Singh, p.w.5 in his

cross- examination that assault was over within two to three

minutes, it would be difficult for any witness to state

exactly which accused inflicted how many blows on the

deceased. In these set of circumstances, if there is some

exaggeration in the evidence of the witnesses those

exaggerations are to be separated by taking into

consideration overall facts on record. Further, it is to be

stated that with regard to the main part of the prosecution

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version that accused assaulted deceased Gurdev Singh, the

prosecution evidence is fully corroborated by medical

evidence. The medical evidence also corroborates the say of

the witnesses that on both the deceased, apart from injury

by firearm, accused assaulted by gandasa. Dr. R.K.

Chaudhary, P.W. 1 and Dr. H.L. Gupta, P.W. 2, who

carried on post-morterm examination of Gurdev Singh

(deceased), found that he was having as many as 13 injuries

out of which 6 injuries were incise wounds. There were

multiple contusions and lacerated wounds on the body.

Similarly, with regard to Tek Singh (deceased), there were

in all 9 injuries, 3 were incise wounds and rest were

multiple contusions and lacerated wounds. Therefore, it

cannot be stated that the evidence of the prosecution

witnesses is not corroborated by medical evidence. It is

true that they have failed to locate exact seat of the

injuries but that is natural, when the incident takes place

all of a sudden within two to three minutes and successive

blows are inflicted by the accused, 8 in numbers. They came

all of a sudden armed with the deadly weapons and attacked

the victims, who rushed to take the shelter in the house.

In such a fact situation, some contradictions as to who

assaulted whom, with what weapon and whether it was by sharp

edge or blunt side of Gandasa are bound to be there and

particularly when blows are given in quick succession, it

would be against the ground reality to expect the witnesses

to depose exactly on which part of the body blow landed. In

these circumstances, even if there is some exaggeration with

regard to the inflictions of blows, it would hardly be a

ground for rejecting their testimony. It may be futile to

expect an exact description of the details of attack on the

victims by each accused from the widow of one of the

deceased who witnessed the dastardly act or from

eye-witnesses. Accused were known to the widow and the

witnesses. Their names are disclosed immediately. Hence,

presence of the accused at the scene of offence was

established. They all were armed with deadly weapons and

came together. In such a situation, when the presence of

the accused who were armed with deadly weapons is

established beyond doubt, Sections 148 and 149 I.P.C. would

come into operation and they would be liable for the

offences. In this view of the matter, there was no warrant

at all for the High Court to reverse the judgment of the

Sessions Court which is analytical and well reasoned. High

Court has also not given due importance to the fact that FIR

was lodged immediately disclosing the entire incident and

the names of the accused. The incident took place at about

8.30 p.m. on 14th September, 1988. FIR was recorded at

11.30 p.m. and its copy was received by the Illaqa

Magistrate, Hissar at 4.30 a.m. on the same night. The FIR

was lodged by Chet Singh and Bhola Singh also had

accompanied Chet Singh at the Police Station. So Additional

Sessions Judge rightly came to the conclusion that within

two and a half hours of the occurrence, information was

lodged with the Police and that copy of the FIR was sent at

Hissar which is 90 Km. from Jakhal by a special report

which reached to the Magistrate at Hissar at 4.50 a.m.

during the same night and in these circumstances, the

evidence of the prosecution witnesses get corroboration from

the FIR. The High Court also held that prosecution has

failed to prove motive. In our view, this finding is also

erroneous. Admittedly, deceased Tek Singh was convicted for

causing injury to Mrs. Mukhtiar Kaur, wife of Gurbachan

Singh (A-2). He was released on parole and on next day, he

was assaulted and murdered. Further, it is a say of Chet

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Singh and P.W.6 Bant Kaur that Chet Singh wanted to contest

election for the post of Sarpanch of the village. He

withdrew his candidature and Tek Singh (A-1) was elected.

It is the say of the witnesses that he withdrew his

candidature as there was compromise and it was understood

between him and accused that his wife would be co-opted as a

female member of the Panchayat. This understanding was not

honoured by Tek Singh and on that account, there was a

dispute. In the cross-examination, he has stated that even

though Gurbachan Singh and Gurmel Singh, on the one hand,

and the other accused persons, namely, Tek Singh and others

are totally from different families, they formed one group

and were close to each other. There was no reason to

disbelieve this part of the evidence. Further, in his

Section 313 statement, the accused Tek Singh stated that he

was falsely involved due to enmity between him and the

complainant side; he contested the election of Sarpanch

against Chet Singh and he was elected; Chet Singh put

pressure upon him to co-opt his wife as the member of the

Panchayat which he refused to oblige therefore he bore

grudge in his mind. It is the say of Gurbachan Singh in

Section 313 statement that deceased Tek Singh had inflicted

injuries to Mrs. Mukhtiar for which he was prosecuted and

convicted. He had also dispute with him for 22 Quilla of

land in Village Chandpur belonging to his maternal

grandfather and the deceased Tek Singh was asking for share

in that land, due to that reason, Tek Singhs family members

were having grudge against him. Therefore, he and his

brother were falsely involved in the case by Bant Kaur in

consultation with Chet Singth. Similar statement is made by

accused Gurmail Singh. In view of the aforesaid evidence

and statements of the accused it would be difficult to hold

that there was no motive on the part of the accused.

Hence, the appeal is allowed, judgment and order

passed by the High Court acquitting the respondents for the

offences for which they were charged is quashed and set

aside. The Judgment and Order dated 26.3.1991 passed by the

Sessions Court in Sessions Case No. 57 of 1988/33 of 1990

convicting the respondents and sentencing them is restored.

Bail bonds of respondents are cancelled. They are directed

to surrender to serve out the remaining part of the sentence

awarded to them.