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PETITIONER:

THE STATE OF PUNJAB

Vs.

RESPONDENT:

SURJA RAM

DATE OF JUDGMENT09/08/1995

BENCH:

MUKHERJEE M.K. (J)

BENCH:

MUKHERJEE M.K. (J)

NANAVATI G.T. (J)

CITATION:

1995 AIR 2413 1995 SCC Supl. (3) 419

JT 1995 (6) 383 1995 SCALE (4)689

ACT:

HEADNOTE:

JUDGMENT:

(With Crl. Appeal No. 346 of 1984)

JUDGMENT

M.K.MUKHERJEE, J.

Surja Ram and his three sons Mohan Lal, Vinod Kumar and

Pramod Kumar, all residents of village Puran Patti under the

police station of Fazilka (Sadar), were placed on trial

before the Sessions Judge, Ferozepore to answer charges

under Section 302 read with Section 34 of the Indian Penal

Code for the murders of Tulsa Ram, the elder brother of

Surja Ram, and his son Brij Lal. On conclusion of the trial,

the learned Judge acquitted all of them of the charge

relating to the murder of Brij Lal and also acquitted Vinod

Kumar and Pramod Kumar of the other charge but convicted

Surja Ram and Mohan Lal and sentenced each of them to suffer

imprisonment for life. Against their conviction and

sentence, Surja Ram and Mohan Lal preferred an appeal which

was allowed by the High Court. Assailing their acquittal

these two apeals have been preferred; one by the State of

Punjab (Criminal Appeal No. 448 of 1984) and the other

(Criminal Appeal No. 346 of 1984) by Kamla Devi, daughter of

the deceased Tulsa Ram. Both the appeals have been heard

together and this judgment will dispose of them.

The case for the prosecution, briefly stated, is as

under: Ishar Ram, father of Surja Ram and Tulsa Ram had

divided his lands in three equal shares, one of which was

given to Surja Ram (the respondent no. 1), another to Tulsa

Ram (the deceased) and the third was retained by him. In

terms of the said division, a field known as `Diggiwala'

fell in the share of Tulsa Ram and he used to sow Moongi

crops thereon. Surja Ram, however, was demanding a share out

of the Moongi crops from Tulsa Ram, but the latter told him

that as he (Surja Ram) was already in possession of more

land than that fell in his share, he should first give him

(Tulsa Ram) a part of it before he could claim any share in

the Moongi crops. This proposal was however not acceptable

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to Surja Ram.

On April 18, 1982 at or about 5 p.m. Tulsa Ram was

sitting in an open space outside his house while his two

sons Ram Gopal (PW 4) and Brij Lal (the deceased) were away

to the field for raising crops. At that time Surja Ram

accompanied by his three sons came there and started

shouting that Tulsa Ram should be taught a lesson for not

giving the share of Moongi crops. Surja Ram was carrying a

spear, Mohan Lal a pistol, Vinod Kumar a kirpan and Parmod

Kumar a soti. Apprehending danger, Tulsa Ram got up and

tried to rush into his house when Mohan Lal fired from the

pistol hitting him on the back. As a result thereof Tulsa

Ram fell down with his face upwards. Surja Ram then

inflicted a blow, with the spear he was carrying, on the

chest of Tulsa Ram. Immediately thereafter Tulsa Ram died.

Kamla Devi (PW 2), daughter of Tulsa Ram, and Ram Swarup (PW

3) who were inside the house and had earlier come out on

hearing the shouts raised by Surja Ram, cried out for help.

All the four miscreants then ran towards the field shouting

that they would not spare the sons of Tulsa Ram also. Kamla

Devi and Ram Swarup then rushed towards the field where Brij

Lal and Ram Gopal were working. Sighting the miscreants Ram

Gopal fled away but Brij Lal could not succeed in his

attempt as Mohan Lal fired three shots at him resulting in

his instantaneous death. Finding Brij Lal dead, Kamla Devi

came back home and sent Ram Swarup to inform her maternal

uncles, who lived in a nearby village. After Ram Swarup

returned with her maternal uncles Raja Ram (PW 12) and

Kanshi Ram (PW 13), Kamla Devi left for the police station

accompanied by Kanshi Ram. There she lodged a First

Information Report, (Ext. PJ) which was recorded by Sub-

Inspector Bhagwan Singh (PW 18).

After registering the case Bhagwan Singh left for the

place of occurrence accompanied by Kamla Devi and Kanshi

Ram. Reaching there he found the dead body of Tulsa Ram

lying in front of his house. He held inquest thereupon and

sent it for post-mortem examination. He also collected and

seized some blood stained earth from the spot. He then went

to the field where the dead body of Brij Lal was lying.

After holding inquest he forwarded the dead body for post-

mortem examination. From the field he also collected and

seized some blood stained earth. Thereafter he recorded the

statements of witnesses including Ram Swarup and Ram Gopal.

In course of the investigation he arrested the accused

persons and interrogated them. Pursuant to the statement

made by Surja Ram he recovered a spear which was lying under

a heap of cotton sticks in his house. The other accused

Mohan Lal (respondent No. 2) also made a disclosure

statement and pursuant thereto PW 18 recovered a country-

made pistol and three cartridges, which were wrapped in a

piece of cloth and kept buried in a field. On completion of

investigation he submitted charge-sheet and in due course

the case was committed to the Court of Session.

The accused persons pleaded not guilty to the charges

levelled against them and stated that they have been falsely

implicated. They, however, admitted their relationship

inter-se as also with the deceased and the factum of

partition.

To bring home the charges levelled against the accused

the prosecution relied principally upon the ocular version

of the incident as given out by Kamla Devi (PW 2) and Ram

Swarup (PW 3). PW 2 also testified about her having lodged

the F.I.R. at the police station and PW 3 spoke about his

having gone to village Sabuana immediately after the

incident to fetch Raja Ram and Kanshi Ram. To corroborate

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the testimonies of the above two witnesses the prosecution

relied upon the evidence of Dr. S.N. Mittal (PW 1) who held

post-mortem examination upon the two dead bodies and found a

number of injuries on their persons. Besides, prosecution

laid evidence to prove that pursuant to the statements made

by Surja Ram and Mohan Lal (the two accused-respondents) the

offending spear and pistols were recovered. The reports of

the Forensic Science Laboratory, which indicated that earth

seized from near the house of the deceased Tulsa Ram

contained human blood, and of the Ballistic Expert

indicating that the recovered pistol was used in recent

firing were also exhibited. On discussion of the evidence so

adduced by the prosecution, the trial Judge firstly held

that even if it might be concluded that there was no proof

of motive it would not adversely affect the direct evidence

of the eye-witnesses. The trial Judge then discussed the

evidence of the two eye-witnesses. The trial Judge then

discussed the evidence of the two eye-witnesses and found

the same reliable, so far as it related to murder of Tulsa

Ram near his house, notwithstanding some discrepancies

which, according to him, were of a minor nature. The trial

Judge further held that the injuries found on the dead body

of Tulsa Ram by the doctor conformed with the eye-witnesses'

narration of the incident. As regards the other murder the

trial Judge held that the account of the incident as given

out by the two eye-witnesses stood contradicted by the

medical evidence. In drawing the above conclusion he

observed that the fire-arm injuries sustained by Brij Lal

were the result of a single shot but both the eye-witnesses

stated that he had been shot at thrice. Another reason which

weighed with him in recording the order of acquittal in

respect of the murder of Brij Lal was the unnatural conduct

of the two eye-witnesses following the murder of Tulsa Ram.

According to the trial Judge if PWs 2 and 3 had heard from

the accused about their intention to go after the sons of

Tulsa Ram and if they had in fact seen the accused going

towards the fields where Brij Lal and Ram Gopal were working

it was expected of them to raise hue and cry and seek

others' help. He also doubted the presence of Ram Gopal in

the field. Having perused the evidence on record we find

that none of the grounds canvassed by the trial Judge for

recording the acquittal in respect of the charge for the

murder of Brij Lal is sustainable. However, we need not

detail the reasons for our above conclusion for, no appeal

was preferred against that acquittal and in these appeals we

are only concerned with the question whether the High Court

was justified in acquitting the two respondents of the

charge relating to the murder of Tulsa Ram.

It is trite that while dealing with an appeal against

an acquittal recorded by the High Court this Court does not

ordinarily interfere with it but if it is found that

relevant and reliable evidence on record has been lost sight

of, ignored or brushed aside for reasons which are wholly

unsustainable this Court will not only be justified - but it

will be its duty - to interfere with the acquittal to make

amends for the failure of justice.

From the impugned judgment of the High Court we first

find that it negatived-and in our view rightly-the plea

raised on behalf of the two respondents (the appellants

therein) that since the trial Court had totally rejected the

evidence of the two eye-witnesses in respect of the murder

of Brij Lal there was no guarantee of truth attached to the

self-same evidence in respect of the murder of Tulsa Ram,

with the following observation:-

"There is no gainsaying and the trial

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Court has also held that the maxim

"Falsus in uno, Falsus in omnibus" has

not been applied by the courts in India

but at the same time, what is required

to be judged is as to whether the eye-

witnesses are otherwise reliable, or

not".

The High Court then posed the question as to whether

the two eye-witnesses were reliable or not and answered the

same in the negative with the following findings:

i) The F.I.R. was not a genuine document as it was prepared

at the behest of the Investigation Officer, after he held

inquest, to dovetail with the injuries found by him on the

person of Brij Lal. Consequently, no reliance could be

placed upon the testimony of Kamla Devi, who lodged the

same;

ii) There was no satisfactory explanation for the delay in

lodging the F.I.R. at the police station which was at a

distance of hardly 4 or 5 miles from the spot;

iii) Ram Swarup was merely a chance witness as he was a

resident of a different village and it was a strange

coincidence that he had come from his own village to see

Kamla Devi at exactly 5 p.m. when the incident took place;

and

iv) Considering the matter from the angle of natural course

of human conduct and probabilities, the two eye-witnesses

would not have dared to follow the appelants to the fields,

after seeing Tulsa Ram being put to death , in order to

witness the murder of Brij Lal and if they had really

followed the assailants, as claimed by them, it was more

likely that they would have been attacked by the accused

persons but no such claim was even made.

After a close look to the entire evidence on record we

are constrained to say that each of the above findings is

untenable. Prosecution laid evidence, through PW 2 and PW 18

- which was not controverted - that the F.I.R. was lodged at

the police station at 8 p.m. on 18.4.82. We next get from

the record of the trial Court that on 11.1.1983 the Public

Prosecutor tendered the evidence of a number of witnesses,

including Constable Sukhwant Sing (PW 11), through

affidavits, as he considered their evidence to be formal. On

such tendering of evidence the trial Judge recorded the

following order:

"The accused have no objection to the

admissions to the statements of P.W. 5

to P.W. 11 on affidavits. They do not

wish to cross examine them. I herby

order that the statements of formal

witnesses P.W.5 to P.W.11 be admitted on

affidavits."

The procedure so adopted by the trial Judge was clearly

in consonance with Section 296 of the Code of Criminal

Procedure. Coming now to the affidavit of PW 11 we get

therefrom that on 18.4.1982 at 9.45 p.m. he delivered the

special report to Shri D.R. Arora, the Judicial Magistrate

in charge of Fazilka. PW 11 asserted that he did not delay

the delivery of the special report. The endorsement in the

FIR also corroborates the above uncontroverted statement of

PW 11. Then again it is the categorical statement of the

Investigation Officer - which again has not been controvered

- that he completed the formalities regarding the recording

of FIR by 9.15 p.m. and proceeded for the spot at 10 p.m.

Having regard to the fact that the FIR and for that matter

the special report in respect thereof had reached the

Magistrate in accordance with Section 157 of the code of

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Criminal procedure before departure of the Investigating

Officer from the police station for the spot, the finding of

the High Court that the FIR was doctored at the behest of

the Investigating Officer to fit in with the injuries he

found on the person of Brij Lal at the time of inquest must

be attributed to its non-consideration of material evidence.

Regarding the second finding we can only say that there

was no delay whatsoever in lodging the F.I.R. for it was

lodged by PW 2 within three hours of the incident after

covering a distance of 5 miles. This apart, the sequence of

events as deposed to by PW 2 clearly demonstrates that she

had gone to the police station at the earliest opportunity.

According to her she first sent message to her maternal

uncles through Ram Swarup and only after they came she went

to the police station and her evidence in this regard stands

fully supported by Raja Ram (PW 12), her maternal uncle.

PW12 testified that at 6.30 p.m. Ram Swarup had come to his

village and reported the incident to him. Thereafter he left

for Kamla's place accompanied by Kanshi Ram. We cannot lose

sight of the fact that PW 2, who was aged only 19 years, had

lost her father and brother just then and it was not

unlikely of her first to apprise her relations of the same

and seek their help at that hour of her distress. The High

Court, however, observed that if really PW 3 was there

nothing prevented PW 2 to go to the police station

accompanied by him as he was the surpanch of his village

instead of getting in touch with her maternal uncles. Simply

because PW 2 did not react in the way the High Court thought

she should have, it ought not have been made a ground for

drawing adverse conclusions against her conduct, which was

clearly normal and natural. While on this point it will be

also pertinent to point out that PW 3 was not a sarpanch of

Kamla's village.

Coming now to the third finding it must be said that

the High Court ought not to have brushed aside the evidence

of Ram Swarup (PW 3) solely on the ground that being a

resident of another village it was not expected of him to be

present at the spot just at the right time for, there are,

besides his own evidence and that of PW 2, other materials

on record which confirms his presence at the time of the

occurrence. Raja Ram (PW 12) stated in his evidence that Ram

Swarup had come to his house in village Sabuana on April 18,

1982, at or about 6.30 p.m. and gave a detailed version of

the incident. He further stated that accompanied by Raja Ram

he went to village Puran Patti on a motor cycle. In cross-

examination it was not even suggested to PW 12 that his

above statements were incorrect. Another significant fact is

that PW 3's name finds place in the FIR as a witness to the

occurrence. We do not, therefore, find any reason to leave

the evidence of PW 3 out of our consideration on the ground

that he was a chance witness.

The last finding of the High Court is solely based on

the ground that the claim of the two eye-witnesses that they

had seen the murder of Brij Lal was highly improbable. Even

if we proceed on the assumption that the finding is

unexceptionable still then the High Court was not at all

justified in rejecting their evidence so far as it related

to the murder of Tulsa Ram on that score alone for law is

well settled that when evidence of a witness is rejected in

part a duty is cast upon the court to sift his evidence with

more than ordinary care and caution to find out whether the

rest of the evidence is fully trustworthy, either

intrinsically or by reason of corroboration from other

trustworthy sources. Indeed, as noticed earlier, the High

Court itself negatived an identical threshold contention

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raised by the respondents based on the maxim "Falsus in uno,

Falsus in omninbus".

Now that we have found that the reasons which weighed

with the High Court in recording the order of acquittal in

favour of the two respondents cannot be sustained we have to

ascertain whether the trial Court was justified in

convicting them solely relying on the evidence of P.Ws. 2

and 3. After going through their evidence carefully we find

that they fully supported the prosecution case as detailed

earlier, including the specific roles played by the two

respondents in the murder of Tulsa Ram. Considering the fact

that the incident took place just in front of the house of

Tulsa Ram, P.W. 2 was the most natural and probable witness.

The claim of PW 3 that he was in the house of Tulsa Ram at

the material time has already been found by us to be a

genuine one. He must, therefore, also be held to be a

probable witness. Though both of them were cross-examined at

length nothing could be elicited to discard their evidence

or materially contradict them. Dr. Mittal (P.W. 1) testified

that the deceased (Tulsa Ram) had an incised wound on the

right chest, and an incised wound below base of neck. He

also found four pellet wounds on the dead body besides some

abrasions. When P.W. 1 was shown a spear (Ex. p. 1) which

was seized during investigation he opined that the two

incised wounds might have been caused by one blow with that

instrument as the two wounds communicated with each other.

He further opined that the pellet wounds might have been the

result of a single shot from a firearm. The evidence of the

Doctor, therefore, fully supports the evidence of the two

eye-witnesses. This apart, the F.I.R., which has been found

by us to have been promptly lodged contains a detailed

outline of the prosecution case and thus corroborates the

evidence of P.W.2. The find of human blood near the house of

Tulsa Ram also is a piece of corroboration of the evidence

of P.Ws. 2 and 3. The trial Judge, however, did not lend any

importance to the factum of recovery of the spear and the

pistol pursuant to the statements made by the respondent

Nos. 1 and 2 respectively, on the ground that no blood was

found on the spear and the Ballistic Expect's report only

indicated that the pistol had been used before it was

recovered but such user could not be connected with the

commission of the crime. We also, therefore, do not find it

prudent to take into consideration the above evidence.

However such non-consideration does not in any way deter us

from accepting the prosecution case as we find that both

P.Ws. 2 and 3 are wholly reliable and their evidence stands

corroborated by other evidence on record.

On the conclusions as above we allow both the appeals,

set aside the impugned judgment of the High Court and

restore the order of conviction and sentence recorded

against the two respondents under Section 302/34 I.P.C. by

the learned trial Judge. The respondents who are on bail

will now surrender to their bail bonds to serve out the

sentence.