Bur Singh & Anr vs State Of Punjab

Bur Singh & Anr. ..Appellants

Versus

State of Punjab ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1 Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench

of the Punjab and Haryana High Court upholding the conviction of the

appellants for conviction punishable under Section 302 for appellant

no.1 and Section 302 read with Section 34 of the Indian Penal Code,

1860 (in short the `IPC') for appellant no.2 while directing acquittal

of co-accused Parminder Singh. Four persons faced trial. The learned

Sessions Judge Gurdaspur directed acquittal of Lakhbir Singh, while

holding the present appellants and Parminder Singh to be guilty of

offence punishable under Section 302 and Section 302 read with Section 34 IPC as noted above. By the impugned judgment the High Court as

noted above directed acquittal of the co-accused while confirming the

conviction and sentence so far as the appellants are concerned.

3. Prosecution versions as unfolded during trial is as follows:

On 5.10.1999 Bur Singh had given beatings to the son of Manjit

Singh for passing through their fields to which Surjan Singh had

objected, therefore, the accused were annoyed and challenged to teach

him a lesson.

On 6.10.1999 at about 6 AM Sukhraj Singh (hereinafter referred to

as the `complainant') along with his father Surjan Singh was going

towards his well to milch the cattle. Surjan Singh was ahead of

complainant. When they came near the field of Hazara Singh, the

accused came there. Bur Singh raised lalkara that they be caught and

taught a lesson for showing sympathy with the police. Kulwinder Singh

accused inflicted datar blow on the right arm of Surjan Singh, Bur

Singh inflicted sua blow on his right temporal region, and,

resultantly, he fell down. Thereafter Parminder Singh accused

inflicted dang blow to him on his shoulders. Thus, all the accused

inflicted several blows to him with the respective weapons. The hue

and cry raised by Sukhraj Singh attracted Jasbir Singh and Kulbir

Singh to the spot. At this, the accused fled away with their

respective weapons. Surjan Singh succumbed to the injuries at the

spot.

After leaving Jasbir Singh and Kulbir Singh near the dead body,

the complainant went to the police station, but ASI Lakhbir Singh met

2 him at Aliwal Chowk to whom he got recorded his statement Ex.PD, which

was completed at 7.30 AM on the basis of which FIR Ex. PD/2 was

registered at 8.30 AM. The distance of police station Sadar, Batala

is 4Kms. from the place of occurrence. The FIR was received by the

illaqa Magistrate at 9 A.M. ASI Lakhbir Singh visited the place of

occurrence; prepared the rough site plan; lifted blood stained earth

from the spot; took into possession one shoe of plastic; got conducted

postmortem examination the dead body of the deceased; and took the

clothes of the deceased into possession. Accused Bur Singh was

arrested on 11.10.1999 and he got recovered dang fitted with sua under

the chaff in his residential house and Kulwinder Singh accused got

recovered datar from underneath the heap of chaff lying in his

verandah in pursuance of their disclosure statements under Section 27

of the Indian Evidence Act, 1872 (in short the `Evidence Act'). On

28.10.1999, Parminder Singh accused was arrested by Inspector Lakhbir

Singh CIA staff, Batala. Completion of the investigation was followed

by a report under Section 173 of the Code of Criminal Procedure, 1973

(in short `Code').

In order to substantiate the accusations twelve witnesses were

examined. PWs 2&3 were stated to be eye witnesses. The accused

persons abjured guilt as noted above and in the examination under

Section 313 of the Code stated that they had been falsely implicated.

Acquitted accused Parminder Singh stated that he was staying at the

different State and was not present at the date. Four witnesses were

examined to further the defence version about false implication. The

trial Court found the evidence of PWs 2 & 3 to be cogent and credible

and recorded conviction. In appeal, High Court upheld their

conviction.

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4. In support of the appeal learned counsel for the appellant

submitted that the evidence of PWs 2 & 3 cannot be believed. Their

presence at the spot is highly improbable. The conspiracy angle as

projected by the prosecution having been disbelieved that defence

version of false implication stand substantiated. The two witnesses

are interested witnesses and their version should not have been relied

upon. In any event when on the self same evidence, two of the accused

persons were acquitted the present appellants should not have been

convicted. With reference to evidence of PW 3 it was stated that he

claimed that there were bloodstains on his clothes when the deceased

was taken by him. PW 11 the Investigating Officer (in short the

`I.O.') has categorically stated that so far as PW 2 is concerned, it

is stated he was working as a Development Officer and was staying at a

different place. Added to that, the time of the alleged occurrence has

been varied. Presence of semi-digested food clearly shows that the

occurrence could not have taken place in the morning as claimed by the

prosecution. It is also submitted that in the First Information

Report (in short the `FIR') and the application made for postmortem,

the I.O. had not stated that the injuries on the person of the

deceased were caused by sharp weapon. There was no mention of any

blunt weapon. With reference to Exhibits D1 and D2 it is stated that

there were blank spaces and, therefore, there was scope for

manipulation.

5. Learned counsel for the respondent on the other hand submitted

that the police officials were was not investigating properly and,

therefore, lapse had been committed. These lapses were committed with

a view to help the accused persons for which complaint was made to the

4 higher officials. The accused persons cannot take any advantage of

the lapses committed by the police officials, if any, with a view to

help them. It is also submitted that the evidence of PWs 2& 3 is

clear, cogent and credible and therefore the trial court and the High

Court had rightly convicted them.

6. Merely because the eye-witnesses are family members their

evidence cannot per se be discarded. When there is allegation of

interestedness, the same has to be established. Mere statement that

being relatives of the deceased they are likely to falsely implicate

the accused cannot be a ground to discard the evidence which is

otherwise cogent and credible. We shall also 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.

7. 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

5 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."

8. 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.

9. 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:

"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 -

`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."

10. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202)

this Court observed: (p. 209-210 para 14):

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"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."

11. To the same effect is the decisions in State of Punjab v. Jagir

Singh (AIR 1973 SC 2407), Lehna v. State of Haryana (2002 (3) SCC 76)

and Gangadhar Behera and Ors. v. State of Orissa (2002 (8) SCC 381).

12. The above position was also highlighted in Babulal Bhagwan

Khandare and Anr. v. State of Maharashtra [2005(10) SCC 404] and in

Salim Saheb v. State of M.P. (2007(1) SCC 699).

13. As noted above, stress was laid by the accused-appellants on the

non-acceptance of evidence tendered by PW-3 to contend about

desirability to throw out the entire prosecution case. In essence the

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 the

grain from the chaff. Where the chaff can be separated from the 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

7 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 liars. The maxim "falsus in uno

falsus in omnibus" has not received general acceptance nor has this

maxim come to occupy the status of a 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 discarded. The doctrine

merely involves the question of weight of evidence which a Court may

apply in a given set of circumstances, but it is not what may be

called `a mandatory rule of evidence'. (See Nisar Ali 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 Gurcharan 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

was to be rejected, because a 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 sifted with care. The aforesaid dictum is not a sound rule

8 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 the 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 in Krishna Mochi

and Ors. v. State of Bihar etc. (JT 2002 (4) SC 186).

14. It is to be noted that the trial court and the High Court have

noticed that though PW2 was working as a Development Officer at

9 Gurdaspur, there was no evidence to show that he could not have been

present at the time of occurrence in the village which is not very far

off from Gurdaspur. Merely because the investigating officer had not

noticed any blood stains on the clothing of PW 3, that does not mean

that PW 3 was telling a lie. PW 11 has stated that he had not noticed

the bloodstains. That is not the same thing to say that there was no

bloodstain. There can be several reasons for which blood stains may

not have been noticed by PW 11 because he may not have focussed his

attention to that aspect. So far as the presence of semi-digested

food is concerned, the High Court has stated that the people in the

villages get up early in the morning, take some food and then start

their daily pursuits. No question was asked to the witnesses as to

when the deceased woke up and when he took his food if any. It is of

significance to find that Dr. Harbhajan Singh, PW1 conducted the

autopsy and found the presence of rigor mortis on the upper limbs

whereas it was partially presence on the lower limbs when the autopsy

was conducted on 6.10.1999 at 1.15 P.M.

15. This indicates that rigor mortis was just in the process of

setting and had not completely set towards the body. In view of all

this the presence of 150cc food in the stomach of the deceased cannot

be a factor to disbelieve the evidence of PWs 2&3. FIR was very

promptly lodged, occurrence is supposed to have taken place around 6

AM and the statement of the complaint was recorded at 7 A.M. So far

as the non-mention about the use of blunt weapon in the inquest report

for post mortem is concerned, there is no requirement in law that the

police officials making inquest or conducting of post mortem should

describe in detail as to the nature of the injuries sustained by the

10 deceased and/or by the type of weapons used. That cannot be a factor

to discard the prosecution version.

16. Looked at from any angle, the appeal is without merit, deserves

dismissal, which we direct. Appellant No.1 was exempted from

surrendering considering his age. Both the accused appellants shall

surrender to custody forthwith to serve remainder of sentence.

17. Appeal is dismissed.

................................................................J. (Dr. ARIJIT PASAYAT)

...................................................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, October 13, 2008

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