Full Judgment Text
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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