Full Judgment Text
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PETITIONER:
BALAKA SINGH & ORS.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT16/04/1975
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
UNTWALIA, N.L.
CITATION:
1975 AIR 1962 1975 SCR 129
1975 SCC (4) 511
CITATOR INFO :
R 1990 SC1709 (38)
D 1991 SC 63 (3)
ACT:
Evidence-Appreciation of-Addition of names in inquest
report-Delay in submission of first information report-
Effect of
HEADNOTE:
A cousin of the deceased, who acted as his body guard and
the first appellant and his party were on inimical terms.
Some years before the occurrence the first appellant was
charged with an offence of murder, in which the cousin was
the chief prosecution witness. The appellant was acquitted
by the High Court in that case. Shortly before the
occurrence the appellant filed an application under s. 107,
Cr.P.C. against the cousin of the deceased and his party
which gave rise to a fresh grouse between the party of the
prosecution and the party of the appellants. On the day of
the occurrence, it was alleged, that the cousin of the
deceased saw the appellant and his party consisting of nine
members going towards the house of the deceased, armed with,
deadly weapons. All the nine persons entered the house of
the deceased and attacked him. The deceased was alleged to
have fallen dead with the spear blow of the first appellant.
The accused caused injuries to the wife when she came to
protect the deceased. The Sessions Judge convicted the
appellant under s. 302 and the other accused under s. 302
read with s. 149.
On appeal the High Court affirmed the conviction and
sentences against the five appellants and acquitted the
remaining four accused on the ground that in the body of the
inquest report the names of the four acquitted accused did
not find place and that the names of the nine accused
including those of the four accused mentioned on the top of
the inquest report was an addition made by the Police Sub-
Inspector to help the prosecution.
Allowing the appeal of the five convicted accused to this
Court,
HELD : 1(a) The prosecution case against the five appellants
has not been proved beyond reasonable doubt. The High Court
had given cogent and substantial reasons for acquitting the
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four accused but in that process it had given a finding
which is completely destructive of the entire prosecution
case itself. Although the names of all the nine accused
were mentioned at the top of the inquest report the High
Court found that this was ;in addition made by the Assistant
Sub-Inspector to help the prosecution and to bring the
inquest report in conformity with the F.I.R. The prosecution
has not been able to give any reasonable explanation for the
omission of the names of the four acquitted accused in the
inquest report. Even the Assistant Sub-Inspector, who was
examined as a witness had not chosen to _give any
explanation for this deliberate omission. This omission
throws serious doubt not only on the complicity of the four
accused but also on the veracity and authenticity of the
F.I.R. itself. When once it is established that the names
of the four accused were deliberately added in the inquest
report at the instance of the prosecution, there is no
guarantee regarding the truth about the participation of the
other five accused in assault of the deceased. If the
prosecution could go to the extent of implicating four
innocent persons by insetting their names in the inquest
report and in the F.I.R., they, could very well have put in
the names of the other five appellants also because they
were inimical to the prosecution party. [133C-G-H, 134B-C,
135C-D]
(b)A perusal of the evidence of the prosecution witnesses
showed that the prosecution case against the appellants and
the four accused was so inextricably mixed up that it is not
possible to sever one from the other. In the instant case,
having regard to the partisan and interested evidence of the
prosecution witnesses who could implicate the appellants and
the four accused equally with regard to the assault on the
deceased it is not possible to reject the prosecution case
with respect to the fourth accused and accept it with
respect to the other five appellants. [135F-G, H]
130
Zwinglee Ariel v. State of Madhya Pradesh, A.I.R. 1954 S.C.
15. referred to.
(2)Under the High Court circulars and Police rules it was
incumbent upon the police to send a copy of the F.I.R. to
the Ilaqa Magistrate immediately. In the instant case the
F.I.R. which was recorded at 10 P.M. on the day of the
occurrence reached the Ilaqa Magistrate at 11 A.M. on the
following day. It is, therefore, clear that the F.I.R. was
a belated document. If this were so, then, there was
sufficient time for the prosecution party, who were
undoubtedly inimical to the accused, to deliberate and
prepare a false case not only against the fourth accused but
also against the five appellants. [134F-G-H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
133 of 1970
Appeal by special leave from the judgment & order dated the
21st January, 1970 of the Punjab & Haryana High Court in
Criminal Appeal No. 318 of 1967.
R. L. Kohli, for the appellants.
M. S. Dhillon, for the respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J.-This is an appeal by special leave preferred
by the appellants Balaka Singh, Joginder Singh, Pritam
Singh, Darbara Singh and Jarnail Singh. The appellant
Balaka Singh has been convicted under s. 302 I. P. C. and
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sentenced to imprisonment for life. The other appellants
have been convicted under s. 302 read with s. 1.49 and
sentenced to life imprisonment and a fine of Rs. 1,000/-
each or in default further rigorous imprisonment for one
year. AR the appellants have also been convicted under S.,
143 I.P.C. and sentenced to rigorous imprisonment for four
months each and under s. 148 to rigorous imprisonment for
one year each. Balaka Singh has also been convicted under
s. 325 I.P.C. for having caused grievous hurt to Gurmej Kaur
and Harnam Kaur and sentenced to two years rigorous
imprisonment and fine of Rs. 100. The other accused have
also been convicted under s. 325 read with s. 149 I.P.C. and
awarded the same sentence as Balaka Singh. Apart from these
five appellants there were four other accused who were
prosecuted before the Trial Court of the Additional Sessions
Judge, Patiala, namely, Makhan Singh, Sucha Singh S/o Inder
Singh, Teja Singh and Inder Singh but these accused persons
were acquitted on appeal by the High Court of Punjab and
Haryana. The High Court has, however, confirmed the
conviction and sentences passed on the appellants and has
dismissed the appeal and hence this appeal before us.
Put briefly the prosecution case is as follows. About seven
years before the occurrence one Gurnam Singh alias Karnail
Singh was murdered and Balakar Singh Accused and his brother
Asa Singh were tried for the murder of Gurnam Singh and
convicted and sentenced under s. 302 I.P.C. to imprisonment
for life by the Sessions Judge. Balaka Singh and Asa Singh,
however, went up in appeal to the High
131
Court and were acquitted. Banta Singh P. W. 3 who is
informant in the instant case was the chief prosecution
witness in the murder case in which Gurnam Singh was killed.
It is also the admitted case of the prosecution that Balaka
Singh and his people were on inimical terms with Banta Singh
and the deceased Gurnam Singh. It was further alleged that
Dharam Singh the deceased in the present case was the cousin
of Banta Singh and wag used by him as a sort of his body-
guard to protect him from his enemies. Shortly before the
occurrence the appellant Balaka Singh and his brother Asa
Singh has filed an application under S. 107 of the Code of
Criminal Procedure against Banta Singh, Dharam Singh, Budha
Singh and Kashmir Singh and in those proceedings the
licensed gun of the deceased Dharam Singh was also deposited
and this gave rise to a fresh grouse on the part of the
prosecution party against the accused. Banta Singh and
Dharam Singh also had made a counter-application for taking
security proceedings against the present appellants but no
action thereupon appears to have been taken. The actual
occurrence took place on September 1, 1966, when Banta Singh
P. W. 3 the informant and Dharam Singh the deceased had gone
to see their fields. They returned from their fields at
about 6 P.M. and Dharam Singh had entered his house while
Banta Singh took his leave and went to his own house. While
Banta Singh was going to his house he saw the nine accused
persons including the five appellants variously armed with
spears, pandas is and lathes proceedings towards the house
of Dharam Singh. The party. of the accused is said to have
entered the house of Dharam Singh and Makhan Singh, Sucha
Singh s/o Inder Singh, Inder Singh and Teja Singh-
hereinafter referred to as ’the four accused’ (since
acquitted by the High Court) are said to have incited and
exhorted their companions to finish off Dharam Singh and not
to spare any member of his family. Dharam Singh was, busy
in tying the rope of his ox which was tethered in his court-
yard. The accused after entering the court-yard opened
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’attack on the deceased Dbaram Singh in which Balaka Singh
took a main part and gave a spear blow on the chest of
Dharam Singh as a result of which be fell down on the gound.
Thereafter Banta Singh raised a hue and cry to the effect
that Dharam Singh had been murdered. Not content with
giving one spear blow to Dharam Singh even after he fell
down, joinder Singh is said to have given a barchha blow on
his right knee and Pritam Singh a gandasi blow in the right
shoulder of Dharam Singh. Just at that moment Smt. Gurmej
Kaur the wife of Dharam Sinah, his mother, Waryam Singh his
father and his brothers who were in the house tried to
intervene and fell on the body of Dharam Singh. But they
were also assaulted by Joginder Singh, Balaka Singh and
others. It is said that other inmates of the house were
also assaulted. On hearing the cries of Banta Singh the
informant, Harnam Singh and Kapur Singh reached the spot and
they saw Joginder Singh accused catching Dharam Singh by his
long hair, while Balaka Singh had caught him by the legs and
were trying to drag the deceased towards the entrance gate
of the house. Kapur Singh who was armed with a gun fired a
shot in the air which dispersed the accused party who ran
away. In the aforesaid occurrence apart from the deceased
Dharam Singh Mst. Gurmej Kaur, Harnam Kaur, Waryam Singh,
Sucha Singh and Budha Singh also received injuries on their
person.
132
Banta Singh P.W. 3 went to the police station Julkan and
lodged the F.I.R. the police station being 6/7 miles away
from the place of occurrence. The report was lodged at
about 10 P.M. Accordingly a case under S. 302, 307 and other
sections of the Indian Penal Code was registered by the
police. Assistant sub-Inspector Teja Singh reached the spot
along with Banta Singh and some constables. After reaching
There at about 2 or 2.30 A.M. he prepared the inquest report
and injury statement of the injured persons. The dead body
was sent to the mortuary at Patiala for post-mortem
examination. The A.S.I. also took blood-stained earth from
the spot and the blood-stained clothes of the deceased were
also taken. After completion of the usual investigations
the nine accused persons were challaned in the Court of the
Judcial Magistrate, Patiala who committed them for trial to
the Court of Session which resulted in the ultimate
conviction and sentence against the accused as mentioned
above. The accused pleaded innocence and averred that they
had been falsely implicated due to previous enmity.
In support of the prosecution 19 witnesses were examined but
the defence did not give any evidence at all. The learned
Sessions judge after considering the evidence came to the
conclusion that the prosecution case against all the accused
persons was fully proved and he accordingly convicted and
sentenced the accused persons as mentioned in his judgment.
The accused persons then filed an appeal in the HighCourt,
which, while accepting the prosecution case against the five
appellants in this Court, acquitted the four accused namely,
Makhan Singh Sucha Singh s/o Inder Singh, Teja Singh and
Inder Singh. The Court has given cogent and substantial
reasons for acquitting the aforesaide accused, but in that
process they have given a finding which, in our opinion is
completly destructive of the centre prosecution case Itself.
We may now refer to the reasons given by the High Court for
acquitting the four accused mentioned above. The first and
foremost reason given by the High Court was that although
the inquest report was prepared by the A.S.I. it about 2.30
A.M. in the morning, yet the names of the four accused did
not find place in the body of the inquest report which was
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made on the basis of the report made to the police by the
informant Banta Singh. It is true that the names of all the
nine accused were mentioned at the top of the inqijest
report but the High Court found that this appears to have
been the addition made by the Assistant Sub-Inspector’ to
help the prosecution and to bring the inquest report in
conformity with the F.I.R. In this connection the High Court
observed as follows
"The first thing to be noted in this
connection is that the names of these four
appellants do not figure in the body of the
inquest report although they are mentioned in
the heading thereof as well as in the first
information report. The circumstance leads
clearly to the inference that throughout the
preparation of the inquest report these
appellants were not named as members of the
party of the culprits and that
133
their names were added in the said heading as
well as in the first information report
later."
We have perused Ext. P. H. inquest report ourselves and
find that in the brief facts of the case which were made to
the Investigating Officer by Banta Singh only the names of
Balaka Singh, Joginder Singh, Pritam Singh, Darbara Singh
and Jarnail Singh are mentioned. There is no reference at
all to Makhan Singh, Sudha Singh s/o Inder Singh, Teja Singh
and Inder Singh in the report nor is it mentioned that Teja
Singh and Inder Singh incited or exhorted the other accused
persons to open the assault on the deceased which appears to
be the starting point of the occurrence. The prosecution
has not been able to give any reasonable explanation for
this important omission in the inquest report. The A.S.I.
Teja Singh was questioned on this point and he stated thus
"The brief statements of the facts of the case mentioned in
the inquest report are based on the report lodged by Banta
Singh. In this brief statement, however, the names of Inder
Singh, Sucha Singh, Teja Singh and Makhan Singh accused are
not mentioned as culprits, specifically. It is correct that
in the brief facts mentioned in the body, there is no
reference of the names of these four men."
Thus even the A.S.I. while admitting that the names of the
four accused were not mentioned by Banta Singh has not
chosen to give any explanation for this deliberate omission
to that effect. According to the prosecution the names of
the four accused who have been acquitted by the High Court
had already been mentioned in the F.I.R. which was lodged
4/5 hours before the inquest report was prepared. Any
Investigating Officer possessing some intelligence would
have at once questioned Banta Singh as to how it is that
while he had named the four accused in the F.I.R. he had not
referred to them in his brief statement in the inquest
report. In these circumstances, therefore, the High Court
was fully justified in holding that the omission of the
names of the four accused acquitted by the High Court in the
inquest report was a very important circumstance which went
in favour of the four accused. This omission has a two-fold
reaction. In the first place it throws doubt on the
complicity of the four accused acquitted by the High Court
and secondly it casts serious doubt on the veracity and
authenticity of the F.I.R. itself. It is not understandable
as to why the four accused who are alleged to have taken an
active part in the assault on the deceased were not at all
mentioned in the inquest report and in the brief statement
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of the very person who had lodged the F.I.R. four hours
before. Counsel for the State tried to justify this
omission on the ground that in the inquest report Ext. P.
H. the names of all the nine accused appear to have been
mentioned at the top of that document. There is,
however, no column for mentioning the names of the accused
and, therefore, there was no occasion for the Investigating
Officer to have mentioned the names of the accused in that
particular place.
134
Finally the Investigating Officer P.W. 23 Teja Singh
admitted in his evidence that he had prepared the inquest
report and that he had read out the same to Banta Singh and
Harnam Singh P.Ws. but later tried to say that he did not
recollect whether he had read out the inquest report to
Banta Singh and Harnam Singh before getting their thumb
impressions on the inquest report. This circumstance speaks
volumes against the prosecution case. If, therefore, it is
once established that the names of the four accused were
deliberately added in the inquest report at the instance, of
the prosecution there is no guarantee regarding the truth
about the participation in the assault on the’ deceased by
the appellants.
Another finding which demolishes the entire edifice and
fabric of the prosecution case is that the F.I.R. itself was
not written at 1C P.M. as alleged by the informant Banta
Singh but it was written out after the inquest report was
prepared by the A.S.I. and after the names of the four
accused acquitted by the High Court were inserted in the
inquest report. If this is true then the entire case of the
prosecution becomes extremely doubtful. The High Court has
also derived support from another important circumstance to
come to the conclusion that the F.I.R. was not written at 10
P.M. as alleged by the prosecution but after the preparation
of the inquest report at about 2.30 A.M. The High Court
points out that according to the prosecution the special
report reached the Ilaqa Magistrate at 11 A.M. on September
2, 1966 i.e. more than 12 hours after the F.I.R. was lodged
at the police station, whereas it should been delivered to
the Ilaqa Magistrate during the night or at least in the
early morning. Counsel appearing for the appellants
submitted that under the High Court Circulars and the Police
Rules it was incumbent upon the Inspector who recorded the
F.I.R. to send a copy of the F.I.R. to the Ilaqa Magistrate
immediately without any loss of time and the delay in
sending the F.I.R. has not been properly explained by the
prosecution as rightly held by the High Court. It is,
therefore, clear that the F.I.R. itself was a belated
document and came into existence during the small hours of
September 2, 1966. Indeed if this was so, then there was
sufficient time for the prosecution party who are
undoubtedly inimical to the accused to deliberate and-
prepare a false case not only against the four accused who
have been acquitted, but against the other five appellants
also. The High Court also found that the best person to
explain the delay in sending the special report to the Ilaqa
Magistrate was the Police Constable who had carried the
F.I.R. to the Ilaqa Magistrate but that Constable has not
been examined by the prosecution. On this point the High
Court observed as follows
"The delay with which the special report was
made available to the Ilaqa Magistrate is
indicative of the fact that the first
information report did not come into existence
probably till about sunrise by when the dead
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body had already been despatched for the
purpose of postmortem examination to Patiala
along with the inquest report, so that the
Investigating Officer was no longer in a
position to make alterations in the body of
that report and all that be could do was to
135
add later on the names of the said four
appellants to its heading."
This finding of the High Court is based on cogent materials
and convincing reasons, but unfortunately the High Court has
not considered the effect of this finding on the truth of
the prosecution case with regard to the participation of the
appellants. In our opinion, in view of the finding given by
the High Court it has been clearly established that the
F.I.R. was lodged not at 10 P.M. as alleged by the
prosecution but some time in the early morning of September
2, 1966. If this was so, then the F.I.R. lost its
authenticity. If-the prosecution could go to the extent of
implicating four innocent persons by inserting their names
in the inquest report and in the F.I.R. which was written
subsequent to the inquest report they could very well have
put in the names of the other five appellants also because
they were equally inimical to the prosecution party, and
there could be no difficulty in doing so because it is found
by the High Court that all the prosecution witnesses
belonged to one party who are on inimical terms with the
accused.
The suggestion of the appellants is that they were falsely
implicated because the prosecution could not succeed in
convicting Balaka Singh for the murder of Gurnam Singh in
the previous murder case. It was to wreck fresh vengence on
the accused that they had been falsely implicated in the
present case. It is true that there are as many as eight
witnesses who are alleged to have seen the occurrence and
they have given a parrot-like version of the entire case
regarding the assault on the deceased by the various accused
persons. All these witnesses have with one voice and with
complete unanimity implicated even the four accused persons,
acquitted by the High Court, equally with the appellants
making absolutely no distribution between one and the other.
A perusal of the evidence of the prosecution witnesses would
show that the prosecution case against the appellants and
the four accused is so inextricably mixed up that it is not
possible to sever one from the other. It is true that, as
laid down by this Court in Zwinglee Arivel v. State of
Madhva Pradesh(1) and other cases which have,, followed that
case, the Court must make an attempt to separate grain from
the chaff, the truth from the falsehood, yet this could only
be possible when the truth is separable from the falsehood.
Where the grain cannot be separated from the chaff because
the grain and the chaff are so inextricably mixed up that in
the process of separation the Court would have to
reconstruct an absolutely new case for the prosecution by
divorcing the essential details presented by the prosecution
completely from the context and the background against which
they are made, then this principle will not apply. We are
satisfied that in the facts of the present case, having
regard to the partisan and interested evidence of the
prosecution witnesses who can implicate the appellants and
the four accused equally with regard to the assault on the
deceased it is not possible to reject the prosecution case
with respect to the four accused and accept it with respect
to the other five appellants. If all the witnesses could in
one breath implicate the
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(1) A.I.R. 1954 S.C. 15.
10SC/75-10
135
four accused who appear to be innocent, then one cannot
vouchsafe for the fact that even the acts attributed to
Balaka Singh, Joginder Singh, Pritam Singh, Darbara Singh
and Jamail Singh may have been conveniently made to suit the
needs of the prosecution, case having regard to the animus
which the witnesses as also Banta Singh bore against the
appellants. In these circumstances, therefore, we are
satisfied that in view of the finding of the High Court that
the F.I.R. was a belated document having come into existence
much later than the time it is said to have been recorded
and which adds the names of the four accused against whom
the prosecution case is absolutely identical with the
appellants, the case of the appellants cannot at all be
distinguished from that of the four accused in any respect.
If the case against the four accused fails, then the entire’
prosecution will have to be discarded and it will not be
possible for this Court to make out a new case to convict
the appellants as has been done by the High Court.
In order to test the veracity of the prosecution witnesses
we find that one of the eye witnesses, namely, Waryam Singh
has deposed that Gurmej Kaur, the wife of the deceased, who
was drawing water, from the hand pump when the accused came,
ran towards Dharam Singh and fell upon his body in order to
protect him from receiving further injuries. At this the
appellant Balaka Singh is alleged to have given her a
barchha blow on her right hand and the appellant Joginder
Singh gave a barchha blow on the left buttock of Gurmej
Kaur. According to the evidence of this witness the two
appellants Balaka Singh and Joginder Singh appear to have
assaulted Gurmej Kaur with a sharp-cutting instrument,
namely, barchha and spear. This version is completely
falsified by the medical evidence of Dr. Mohinder Singh who
examined Gurmej Kaur and who stated in his evidence that all
the injuries on Gurmej Kaur were caused by blunt weapon.
Moreover out of the six injuries which Gurmej Kaur received
on her body not a single one could be caused by a sharp-
cutting instrument because there was no penetrating or
incised wounds. The injuries were either contusions,
abrasions or lacerated wounds. While the witness Waryam G-
Singh says that the accused Joginder Singh had given a
barchha blow on the left buttock of Gurmej Kaur, according
to the medical evidence, it was a lacerated wound deep on
the upper and outer part of the leftbuttock. This,
therefore, clearly demonstrates the extent to which the witnesses
could have gone in order to implicate all the accused. In
view of these circumstances and the evidence discussed
above, we are clearly of the opinion that the prosecution
case against the five appellants has also not been proved
beyond reasonable doubt and the manner in which the F.I.R.
and the inquest report have been made throws considerable
doubt on the complicity of the five appellants in the crime.
The result is that the appeal is allowed and the order of
conviction and sentence passed on all the appellants is set
aside. The appellants are acquitted of the charges framed
against them and are directed to be released forthwith.
Appeal allowed.
P.B.R.
137