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CASE NO.:

Appeal (crl.) 1015 of 2002

PETITIONER:

Sucha Singh and Anr.

RESPONDENT:

Vs.

State of Punjab

DATE OF JUDGMENT: 31/07/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NO. 1014 OF 2002

ARIJIT PASAYAT,J

Since these two appeals are inter-linked and a common

judgment of Punjab and Haryana High Court at Chandigarh is

the subject matter of challenge, they are taken up together

for disposal.

Nearly two decades ago, Surjit Singh (hereinafter

referred to as the 'deceased') lost his life. Three

appellants along with two others were stated to be

responsible for his homicidal death.

The litigious history starts from 4.2.1986 and has seen

one round of litigation before this Court. By the impugned

judgment, the three appellants have been found guilty of

offence punishable under Section 302 read with Section 34 of

the Indian Penal Code, 1860 (for short the 'IPC'), and

Section 201 IPC. They were each sentenced to undergo

imprisonment for life and fine of Rs.5,000/- with default

stipulation of one year RI for the former and one and a half

years RI and fine of Rs.500/- with default stipulation of 3

months RI for the later.

Allegations giving birth to the prosecution are

essentially as follows:

On 4.2.1986 at about 9.30 a.m. Lakhvinder Singh (PW9),

his brother Sukhvinder Singh and a relative Pritam Singh

(PW10) were returning from their fields. When they reached

turning of the street near the house of one Rattan Singh,

deceased-Surjit Singh met them on his way towards fields.

Suddenly, they found the accused appellants Satnam Singh,

Sucha Singh and Rachpal Singh who were armed with various

deadly weapons, and Gurdip Singh and Rattan Singh (who were

acquitted by the High Court) surrounded the deceased. Rattan

Singh raised a 'lalkara' saying that the deceased should be

taught a lesson for not vacating a plot. Gurdip Singh made a

similar lalkara. All the accused persons surrounded the

deceased and Sucha Singh gave two gandasa blows which hit

the deceased on the temple on the right side and on the neck

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below the right ear and the deceased fell down. Satnam Singh

gave kirpan blows on the nose below the chin on the right

cheek on his right deltoid and on his left hand. He also

thrust the kirpan on his back. Rachpal Singh gave datar

blows on his head and neck. The deceased breathed his last

at the spot. Thereafter, all the accused persons brought the

dead body of the deceased to the house of Rattan Singh and

raised a lalkara that they would see if anybody would come

to take the dead body. These macabre acts were witnessed by

Lakhvinder Singh (PW9) and Pritam Singh (PW10).

Report was lodged in the police station by Lakhvinder

Singh (PW9). Because of hostility between the parties,

earlier security proceedings were initiated under Sections

107/151 of the Code of Criminal Procedure, 1973 (in short

the 'Cr.P.C.'). Investigation was undertaken and on

completion thereof, charge sheet was filed. The accused

appellants along with two acquitted accused persons were

tried for alleged commission of offence punishable under

Sections 302, 148, 149 and 201 of IPC. It is to be noted

that the post mortem was conducted on 4.2.1986 by Dr. R.P.

Maingi (PW2). He found 16 injuries on the body of the

deceased. He further opined that injuries 1 to 11 were

caused by sharp edged weapon while injuries 12 to 16 were

caused by blunt weapon. To establish the accusations,

thirteen witnesses were examined. The accused persons were

arrested on 4.2.1986, 5.2.1986 and 6.2.1986. At the time of

arrest, it was noticed that four injuries were present on

the person of Rattan Singh and three of the injuries were

simple and of minor nature, and one was caused by sharp

edged weapon.

During trial, the accused persons took the plea that

they were innocent and have been falsely implicated. Accused

Rattan Singh took the plea that on the date of occurrence in

the morning, he was present in the lane in front of his

house and he found the deceased coming with a kirpan in an

aggressive mood. While he was trying to run away, the

deceased gave a kirpan blow on his left arm. Both he and the

deceased entered his courtyard and when he cried for help,

his brother-Harbans Singh armed with a dang, his servants

Ram Singh and Ramu armed with different weapons intervened

and rescued him by causing injuries on the deceased. Rattan

Singh claimed that while he was running away, he fell down

and suffered minor injuries. He alleged that his son had

gone to the police station and returned to the village with

the police. But, instead of taking action against the main

culprit he and his family members were falsely implicated.

Accused-appellants took the stand that they were

arrested on 4.2.1986. The police officials manipulated the

records to show as if they were arrested later on. In order

to substantiate their plea, the accused persons examined

four witnesses. Dalbir Singh (DW1) produced the record to

show that Lakhvinder Singh was studying in class 6th when

he discontinued studies on 2.5.1981 and his date of birth is

20.4.1968. Harbhajan Singh (DW2) produced the school records

to show that Lakhvinder Singh had studied in his school up

to class 5th. R.S. Kumar (DW3) stated that one Harbans

singh was confined in the Sub-Jail, Dasuya under the orders

of SDM in a case under Sections 107/115 of Cr.P.C. and had a

injury on the person at the time of admission into jail . Dr.

Kamlesh Kumar (DW4) stated about the injuries on Harbans

Singh.

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Learned Additional Sessions Judge, Hoshiarpur held that

the prosecution has been able to establish its accusations

against all the five accused persons. The matter was carried

in appeal before the High Court which held that the

prosecution has not been able to bring home the accusations

against the accused appellants and by judgment and order

dated 2.5.1988 directed acquittal of all the accused

persons.

The State of Punjab assailed correctness of the said

judgment before this Court in Criminal Appeal Nos.525-

526/1989. By judgment dated 24.7.1997 the appeals were

allowed and the matter was remitted to the High Court for a

fresh disposal on merits. The High Court was requested to

dispose of the appeals as early as possible preferably

within a period of three months from the date of

communication of the order.

By the impugned judgment the High Court has taken the

view that the accusations against the accused appellants

have been fully established; but held the evidence to be

inadequate so far as accused Rattan Singh and Gurdip Singh

are concerned. The accused-appellants assail correctness of

the said judgment in these appeals.

In support of the appeals, learned counsel for the

appellants submitted that there are several infirmities

which rendered the prosecution version vulnerable, but the

Trial Court and the High Court lost sight of these vital

factors. Had these factors been considered, there was no

scope for finding the accused appellants guilty. It was,

inter alia, submitted that there was no independent

witnesses examined. Only son and close relative of the

deceased have been examined. No co-villager came to depose

for the prosecution and this is unusual. Conclusion that in

a faction ridden village independent witnesses are not easy

to find is a surmise. The conclusion that the Panchayat was

siding with the accused persons is a factor in favour of

accused persons. It indicates that the defence version as

projected by Rattan Singh was true and should have been

accepted. One of the so-called eye-witnesses and the son of

the deceased Sukhvinder Singh was not examined. Body was

found inside of the house of Rattan Singh which probabilises

the defence version. It was the prosecution version that the

body was lifted from the spot of occurrence to the house of

Rattan Singh. But no blood stains were found at the place of

occurrence from where the body was claimed to have been

lifted. Conduct of PWs 9 and 10 in not coming to rescue of

the deceased and not even raising an alarm is rather

unusual. PW10 who belongs to another village has not even

signed the inquest report though he claimed to be present

when inquest was done. This clearly establishes that he

could not have been present as claimed. Injuries on the

accused persons have not been explained. In view of the fact

that two of the accused persons against whom similar

evidence was tendered have been acquitted it would not be

proper and legal to convict rest of accused persons on the

same set of evidence. Benefit of doubt should be given on

account of co-accused's acquittal. It was submitted that the

evidence is inadequate to fasten guilt, and therefore

prosecution cannot be said to have established its case

beyond doubt.

Per contra, learned counsel for the State submitted

that the trial Court and the High Court have analysed the

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various points now urged in detail and have rightly come to

the conclusion that the accused appellants were guilty. In

view of the admitted position that village was faction

ridden and there was lot of hostility, it would be too much

to expect non-partisan witnesses. As noted above, there has

been an elaborate analysis of the evidence of PWs 9 and 10.

After carefully weighing the evidence, the trial Court and

the High Court have come to the conclusion that their

evidence suffers from no infirmity to be viewed with

suspicion.

We shall first 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.

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

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."

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.

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:

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"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 â\200\223 '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. State of U.P. (AIR

1965 SC 202) this Court observed: (p, 209-210 para 14):

"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."

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). Stress was laid by the accused-

appellants on the non-acceptance of evidence tendered by

some witnesses to contend about desirability to throw out

entire prosecution case. In essence 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 grain from chaff. Where chaff

can be separated from 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 liar. 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

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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 Alli 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 Gurucharan 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

were to be rejected, because 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

shifted 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

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 recently in Krishna Mochi and Ors. v.

State of Bihar etc. (JT 2002 (4) SC 186). Accusations have

been clearly established against accused-appellants in the

case at hand. The Courts below have categorically indicated

the distinguishing features in evidence so far as acquitted

and convicted accused are concerned.

As observed by this Court in State of Rajasthan v. Teja

Ram and Ors. (AIR 1999 SC 1776) the over-insistence on

witnesses having no relation with the victims often results

in criminal justice going away. When any incident happens in

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a dwelling house or nearby the most natural witnesses would

be the inmates of that house. It would be unpragmatic to

ignore such natural witnesses and insist on outsiders who

would not have even seen any thing. If the Court has

discerned from the evidence or even from the investigation

records that some other independent person has witnessed any

event connecting the incident in question then there is

justification for making adverse comments against non-

examination of such person as prosecution witness.

Otherwise, merely on surmises the Court should not castigate

a prosecution for not examining other persons of the

locality as prosecution witnesses. Prosecution can be

expected to examine only those who have witnessed the events

and not those who have not seen it though the neighbourhood

may be replete with other residents also.

Exaggerated 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. [See 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.

In matters such as this, it is appropriate to recall

the observations of this Court in Shivaji Sahebrao Bobade

v. State of Maharashtra [1974 (1) SCR 489 (492-493)]:

"......The dangers of exaggerated

devotion to the rule of benefit of doubt at

the expense of social defence and to the

soothing sentiment that all acquittals are

always good regardless of justice to the

victim and the community, demand special

emphasis in the contemporary context of

escalating crime and escape. The judicial

instrument has a public accountability. The

cherished principles or golden thread of

proof beyond reasonable doubt which runs

through the web of our law should not be

stretched morbidly to embrace every hunch,

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hesitancy and degree of doubt......."

".....The evil of acquitting a guilty

person light-heartedly as a learned author

Clanville Williams in 'Proof of Guilt' has

sapiently observed, goes much beyond the

simple fact that, just one guilty person has

gone unpunished. If unmerited acquittals

become general, they tend to lead to a

cynical disregard of the law, and this in

turn leads to a public demand for harsher

legal presumptions against indicted

'persons' and more severe punishment of

those who are found guilty. Thus too

frequent acquittals of the guilty may lead

to a ferocious penal law, eventually eroding

the judicial protection of the

guiltless....."

".......a miscarriage of justice may

arise from the acquittal of the guilty no

less than from the conviction of the

innocent....."

The position was again illuminatingly highlighted in

State of U.P. v. Krishna Gopal (AIR 1988 SC 2154). Similar

view was also expressed in Gangadhar Behera and Ors. v.

State of Orissa (2002 (7) Supreme 276).

So far as inaction of PWs 9 and 10 in not coming to

rescue of deceased is concerned, it has been noted by the

trial Court and the High Court that both of them were

unarmed and bare handed and the accused persons were armed

with deadly weapons. How a person would react in a

situation like this cannot be encompassed by any rigid

formula. It would depend on many factors, like in the

present case where witnesses are unarmed, but the

assailants are armed with deadly weapons. In a given case

instinct of self-preservation can be the dominant instinct.

That being the position, their inaction in not coming to

rescue of the deceased cannot be a ground for discarding

their evidence.

One of the pleas is that the prosecution has not

explained the injuries on the accused. Issue is if there is

no such explanation what would be its effect? We are not

prepared to agree with the learned counsel for the defence

that in each and every case where prosecution fails to

explain the injuries found on some of the accused, the

prosecution case should automatically be rejected, without

any further probe. In Mohar Rai and Bharath Rai v. The

State of Bihar (1968 (3) SCR 525), it was observed:

"...In our judgment, the failure

of the prosecution to offer any explanation

in that regard shows that evidence of the

prosecution witnesses relating to the

incident is not true or at any rate not

wholly true. Further those injuries

probabilise the plea taken by the

appellants."

In another important case Lakshmi Singh and Ors. v. State

of Bihar (1976 (4) SCC 394), after referring to the ratio

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laid down in Mohar Rai's case (supra), this Court observed:

"Where the prosecution fails to

explain the injuries on the accused, two

results follow:

(1) that the evidence of the

prosecution witnesses is untrue; and (2)

that the injuries probabilise the plea taken

by the appellants."

It was further observed that:

"In a murder case, the non-explanation

of the injuries sustained by the accused at

about the time of the occurrence or in the

course of altercation is a very important

circumstance from which the Court can draw

the following inferences:

(1) that the prosecution has

suppressed the genesis and the origin of the

occurrence and has thus not presented the

true version;

(2) that the witnesses who have denied

the presence of the injuries on the person

of the accused are lying on a most material

point and, therefore, their evidence is

unreliable;

(3) that in case there is a defence

version which explains the injuries on the

person of the accused assumes much greater

importance where the evidence consists of

interested or inimical witnesses or where

the defence gives a version which competes

in probability with that of the prosecution

one."

In Mohar Rai's case (supra) it is made clear that failure

of the prosecution to offer any explanation regarding the

injuries found on the accused may show that the evidence

related to the incident is not true or at any rate not

wholly true. Likewise in Lakshmi Singh's case (supra) it is

observed that any non-explanation of the injuries on the

accused by the prosecution may affect the prosecution case.

But such a non-explanation may assume greater importance

where the defence gives a version which competes in

probability with that of the prosecution. But where the

evidence is clear, cogent and creditworthy and where the

Court can distinguish the truth from falsehood the mere

fact that the injuries are not explained by the prosecution

cannot by itself be a sole basis to reject such evidence,

and consequently the whole case. Much depends on the facts

and circumstances of each case. These aspects were

highlighted by this Court in Vijayee Singh and Ors. v.

State of U.P. (AIR 1990 SC 1459).

Non-explanation of injuries by the prosecution will not

affect prosecution case where injuries sustained by the

accused are minor and superficial or where the evidence is

so clear and cogent, so independent and disinterested, so

probable, consistent and creditworthy, that it outweighs the

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effect of the omission on the part of prosecution to explain

the injuries. As observed by this Court in Ramlagan Singh v.

State of Bihar (AIR 1972 SC 2593) prosecution is not called

upon in all cases to explain the injuries received by the

accused persons. It is for the defence to put questions to

the prosecution witnesses regarding the injuries of the

accused persons. When that is not done, there is no

occasion for the prosecution witnesses to explain any injury

on the person of an accused. In Hare krishna Singh and Ors.

v. State of Bihar (AIR 1988 SC 863), it was observed that

the obligation of the prosecution to explain the injuries

sustained by the accused in the same occurrence may not

arise in each and every case. In other words, it is not an

invariable rule that the prosecution has to explain the

injuries sustained by the accused in the same occurrence.

If the witnesses examined on behalf of the prosecution are

believed by the Court in proof of guilt of the accused

beyond reasonable doubt, question of obligation of

prosecution to explain injuries sustained by the accused

will not arise. When the prosecution comes with a definite

case that the offence has been committed by the accused and

proves its case beyond any reasonable doubt, it becomes

hardly necessary for the prosecution to again explain how

and under what circumstances injuries have been inflicted on

the person of the accused. It is more so when the injuries

are simple or superficial in nature. In the case at hand,

trifle and superficial injuries on accused are of little

assistance to them to throw doubt on veracity of prosecution

case, particularly, when the accused who claimed to have

sustained injuries has been acquitted.

The fact that name of PW10 does not figure in the

inquest report or that the DDR entry does not contain the

name of Pritam Singh does not in any way corrode the

credibility of the prosecution version, particularly when

the reason as to why these were absent in the relevant

documents has been plausibly explained by the witnesses,

and after consideration accepted by the trial Court and the

High Court.

Above being the position, the appeals are without

merit and deserve dismissal, which we direct.