Full Judgment Text
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PETITIONER:
HARAPAL SINGH
Vs.
RESPONDENT:
DEVINDER SING & ANOTHERWITHCRIMINAL APEAL NO. 549 OF 1988HAR
DATE OF JUDGMENT: 09/07/1997
BENCH:
M. K. MUKHERJEE, K. T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
THOMAS, J.
This case reflects the bizarre offshoot of unholy
campus politicisation culminating in the premature end of
Jasbir Singh a student who reached final year in M. A
(Economics). The venue of the murderous onslaught as the
precinct of Nar Hari Hostel attached to Kurukshetra
university in Haryana and the time was lunch recess on 23-
10-1986. Jasbir Singh was stabbed to death while his fellow
student Sumer singh received grievous hurt. Twelve persons
including some student leaders of the rival wing were sent
up for trial before the Designated Court of Kurukshetra as
the charge included Section 6 of the Terrorist and
Disruptive Activities(Prevention) Act, 1987 (for short "the
TADA’) But all of them were acquitted by the trial Judge and
these appeals have been filed under Section 19 of the TADA.
The backdrop disquieting from the angle of campus
discipline, was the college students’ union election on the
lines of political party loyalties of the students. Himat
(9th accused) was a candidate for presidentship of the
students union and he was opposed by Jasbir Singh, being
head of the rival students wing owing allegiance to another
political party. Himat won the election, but its fallout was
the acrimonious tension which persisted for long between two
rival student wings in the campus. Skirmishes erupted as a
daily occurrence between them and police had to register
criminal cases against offending students. On the previous
day of occurrence in this case the victorious group made all
efforts to get their budget proposals approved by the
general body but such efforts were thwarted by the stiff
resistance offered by jasbir Singh and his followers. This
became the immediate cause for the aggravated hostility
between the group led by Himat and the rival group led by
Jasbir singh.
What happened during the occurrence in this case,
according to the prosecution version, was this, At about
1,30 p.m. Jasbir Singh and Harpal Singh (PW-3) who was
studying in the first semester of M.A.(English)- and Randeep
Rana (who was the Secretary of the students Union to which
Jasbir Singh belonged were standing outside the canteen of
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Nar Hari hostel. Suddenly Himat (A-9) caught hold of Jasbir
Singh and then Satparkash (A-6) slapped a knife blow on the
left chest of Jasbir singh which was followed by Satbir
Singh (A-1) inflicting another knife blow on the left side
of his chest. When Sumer Singh (PW-6) intervened, presumably
to rescue his colleague, he was prevented from nearing the
victim by Jeevan Singh (A-8) and Sandhip Singh (A-10). But
right at a that time Devinder Singh (A-5) gave a stab injury
on Sumer Singh on his front costal margin. The other
assailants also attacked the deceased with iron rods, clubs,
and hockey sticks etc.
Jasbir Singh breathed his last very soon. but Sumer
Singh did not die as he was operated upon emergently at the
post Graduate Institute of Medical Education, Chandigarh
which saved his life.
The case was registered on the strength of the
statement furnished by Harpal singh (PW-3). Sumer Singh, the
injured, was examined as PW-6 and no other eye witness was
examined. The trial court pointed out certain anomalies in
the evidence of Harpal Singh and declined to believe that he
had witnessed the occurrence. What remained was the evidence
of Sumer Singh. Since he was one the injured in the
occurrence and was loyal to the opposite students wing, the
trial judge found his evidence insufficient for establishing
the guilt against the accused. Accordingly, he acquitted all
the accused.
while hearing the appeals, learned counsel for the
accused reminded us of the oft repeated caution that
acquittals should not lightly e disturbed in appeals. We
have bestowed our consideration on the facts of these
appeals keeping the aforesaid rule of caution.
Post-mortem examination conducted on the body of Jasbir
Singh revealed that out of 11 ante mortem injuries found by
the doctor, one was a spindle shaped incised wound which
pierced the sternum and cut the pericardium and perforated
the left atrium. Besides that he had three other incised
injuries on the chest though none of them was grievous
enough to cause his death. However, the injury which pierced
his heart would have ended his life.
The injury which the doctors found on Sumer Singh (PW-
6) was an incised wound on the costal margin which
perforated his liver. Dr. Pradeep Kumar (PW-5) of the Post
Graduate Institute of Medical Education, Chandigarh,
performed a laparotomy and sutured the liver. PW-5 said in
court that Sumer Singh would have died if the emergency
operation was not performed in time.
It is therefore, fairly clear that both jasbir Singh
and Sumer Singh sustained serious stab injuries. When Sumer
Singh was examined as a witness to the occurrence, he stuck
to the prosecution version set forth earlier. PW-3 Harpal
Singh on whose statement the case was registered has also
narrated the prosecution version with all vivid details.
There can be little doubt that PW-6 Sumer Singh had
witnessed the occurrence. But the drawback of his evidence
is that he belonged to the students wing which was
admittedly rival to the accused students. Though that by
itself is not enough to tarnish his testimony, it is a sound
rule in appreciation of evidence that if the testimony of
such a witness is to be used as the sole basis of conviction
it should be of such a calibre as to be regarded as wholly
reliable. The blemish attached to PW-6 as a partisan witness
stands in the way of his evidence becoming wholly reliable
and hence without adequate reassurance from other
circumstances or materials it may not be safe to make the
uncorroborated evidence of such a witness the sole basis for
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reversing the order of acquittal.
If the presence of Harpal Singh at the place of
occurrence can be believed as a certainty his evidence would
then become capable of corroborating the testimony of Sumer
Singh. They, when put together, would for, a sturdy basis to
make the prosecution version worthy of acceptance. so a
scrutiny of the evidence of Harpal Singh is of crucial
importance in this case.
Harpal Singh (PW-3), at the time he gave evidence, was
a law graduate, though he was only a student of
M.A.(English) when the occurrence took place. He was a
resident of the hostel in the precincts of which the
incident happened, as observed above. it is he who gave the
first information statement to the police in which also he
claimed to have seen the occurrence and in which he narrated
the incident with all details. He was one of those who
helped the injured persons to reach the hospital at the
earliest point of time. Normally, these broad circumstances
would ensure that he would ensure that he would certainly
have seen the occurrence.
But the trial court which declined to place reliance on
him noted some flaws in his testimony; One such flaw is the
failure of the police to collect the clothes worn by Harpal
Singh which were smeared with blood during the rescue
operation. We are unable to appreciate the said approach. If
the clothes worn by the injured or the victims were not
recovered by the investigating team that perhaps would have
provided a handle to the defence to attack the prosecution
case. But no investigating agency would normally take the
trouble to seize the clothes worn by witnesses at the time
they saw the occurrence merely because their clothes too had
collected stains of blood during any post event activities.
At any rate the said omission on the part of the
investigating agency is not a flaw of that type to invite
the consequence of jettisoning his testimony.
Another reason which the trial judge highlighted
against PW-3 (Harpal Singh) was the delay in recording
first information statement. According to the trial court,
as the occurrence happened at 1.30 p.m. and as the Sub-
Inspector of police received intimation at 2.45 p.m. and
that injured Sumer Singh was admitted in the Civil Hospital,
Kurukshetra, the Sub-inspector should have rushed to the
hospital and recorded the statement of Sumer Singh. The fact
cannot be overloaded that Sumer Singh who was admitted in
the Civil Hospital in a very serious condition was
emergently shifted to the post-Graduate institute of Medical
Education Chandigarh 3.50 p.m and that the sub-Inspector who
reached the civil Hospital had to collect the statement of
Harpal Singh at 4.50 p.m. For Sumer Singh and his kith and
kin as also for the doctors, the life of Sumer Singh was of
prime value and that every effort should be taken to save
it. The trial judge seems to have taken a pedantic view in
this matter.
The trial court then harped upon the need for speedy
despatch of the FIR to the magistrate. Since four hours’
time had elapsed as between making the FIR and its reaching
the hands of the magistrate, the trial judge felt that the
FIR would have been completely cooked up and he observed
that Harpal Singh would not have seen the occurrence. The
said conclusion based on the above reasoning is apparently
fragite. Trial court should not have adopted a renown
approach regarding the delay in lodging the fir. Even if the
residence of the Chief Judicial Magistrate was close by, the
fact that the FIR was lodged with him within four hours is
not ignorable. No doubt the ideal situation is that FIR is
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lodged with utmost speed and despatch but if the ideal is
not adhered to in any case, the corollary is not castigation
of the evidence of the maker of the FIR. In the present set
up no police station can be expected to have only one case
to look into. A little delay in lodging the FIR with the
magistrate should not be viewed from an unrealistic angle.
Another reason advanced by the trial court against
evidence of Harpal Singh is that when he was interrogated by
the investigating Officer subsequently, he gave more details
regarding the occurrence. Firstly, the said supplementary
statement recorded by the Investigating officer could only
have been used to contradict the witness in view of the
interdict contained in Section 162 of the Code of Criminal
Procedure, Secondly, that statement cannot be used for
comparing it with the FIR. That apart, if the Investigating
Officer elicited more details from the same person during
any subsequent interrogation how could his evidence become
suspect? It is not advisable to throw the evidence of the
informant overboard merely because the investigating Officer
succeeded in eliciting further details or even fuller
details during subsequent interrogation.
We have noticed that the trial judge has omitted to
refer to a very important item of evidence while dealing
with the testimony of Harpal Singh. it is the evidence of
Surinder Singh (PW-7) who was a research scholar in
Kurukshetra University. The substance of what PW-7 said in
court is this: when he was proceeding to Nar Hari hostel
during lunch recess, he saw Harpal Singh and Randeep Rana
helping the injured persons to get into a rickshaw and then
PW-7 also helped them to reach the hospital soon. On the way
to the hospital, Harpal Singh gave an account of the
occurrence to PW-7.
The cross examiner did not challenge that part of the
evidence of PW-7 that Harpal Singh gave a narration of the
occurrence to PW-7 on their way to the hospital. There is
thus reassurance regarding the fact that Harpal singh was a
witness to the occurrence. There is absolutely no reason to
doubt the testimony of PW-7 nor has the trial court
castigated his testimony in any manner. PW-7, therefore,
gives us the confidence to believe that Harpal Singh has
witnessed the occurrence.
If so, what Harpal singh (PW-3) told the police in the
First information Statement must be the fresh account of the
true facts. if he has seen the occurrence, we see no reason
of him to substitute some innocent persons as assailants.
The position now is this : The testimony of summer
singh stands fully corroborated by the other eye witness pw-
3 Harpal singh.
Learned counsel for the accused in this context argued
that non examination of Randeep Rana, who has seen the
occurrence, has seriously impaired the core of the
prosecution case. No doubt, it would have been desirable if
Randeep Rana was also examined by the prosecution in court .
But his non examination in this case did not cause any
ripple affecting the case.
A public Prosecutor may give up witnesses during trial
to avert proliferation of evidence which could save much
time of the court unless examination of such a witness would
achieve some material use. Randeep Rana, if examined would
only have helped in duplication of the same category of
evidence as the other two eye witnesses. The Public
prosecutor, therefore, cannot be blamed for adopting the
course of not examining him. If the accused thought that
Randeep Rana’s evidence would help the defence, it was open
to the accused to examine him as a defence witness.
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In Darya Singh & others vs. State of Punjab. Air 1965
sc 328, a Bench of three Judges (Gajendragadkar, Wanchoo and
Dasgupta, jj) has observed that in murder cases it is
primarily for the prosecutor to decide which witness he
should examine in order to unfold the prosecution story. "
If a large number of persons have witnesses the incident it
would be open to prosecutor to make a selection of those
witnesses, but the selection must be made fairly and
honestly and not with a view to suppress inconvenient from
the witness box." The same view has been followed in a
number of cases [ vide Masalti vs. State of U.P. AIR 1965 SC
202, by a Bench of four Judges (Gajendragadkar, CJ, Wanchoo,
Dasgupta and Raghubar Dayal, JJ); Gurmej Singh & others vs.
State Punjab, AIR 1992 SC 214, by a bench of three Judges;
Rai Saheb & others vs. State Of Haryana, 1994 SCC (Crl) 239;
Rajbir vs. State of Haryana, 1996 SCC (Crl.) 178 Girish
Yadav & others vs. state of M.P. 1976 SCC(Crl.) 552; Ram
Sanjiwan Singh & others vs state of Bihar, 1996 SCC (Crl.)
701 Malkan Singh & others vs state of U.P 1995 SCC (Crl.)
893]
No doubt Randeep Rana would have been a material
witness. But merely because he was not examined by the
prosecution a criminal court is no to lean to draw adverse
inference that if he was examined he would have given a
contrary version. The illustration (g) in section 114 of the
Evidence Act is only a permissible inference and not
necessary inference. Unless there are other circumstances
also to facilitate the drawing of an adverse inference, it
should not be a mechanical process to draw the adverse
inference merely on the strength of non-examination of a
witness even if it is a material witness. We do not see any
justification, in this case, in drawing such an adverse
inference due to non examination of randeep Rana. [vide
state of Karnataka vs. Moin Patel, 1996 SCC (CRL.) 632]
The aforesaid discussion leads to the following
conclusions:
A-9 made a clarion call to his companions to attack
jasbir Singh and thereupon A-9 and A-7 inflicted stab
injuries on the chest of the deceased. A-5 has inflicted
grievous hurt on the costal margin of Sumer Singh. A-1 and
A-6 have acted conjointly with the common intention to
murder Jasbir singh.
A-5 cannot be convicted of anything more than causing
grievous hurt to PW-6. The exhortation made by A-9 would, no
doubt, amount to facilitation of the crime. but we think
that in the circumstances it was probable that he would not
have intended causing more harm than grievous hurt to jasbir
Singh. In such a situation, we are not inclined to convict
A-9 of the offence under Section 302 read with Section 34 of
the IPC. but we unhesitatingly hold that he has committed
the offence under Section 326 read with Section 34 of the
IPC.
Before parting with the case, we feel strongly to add a
few more words which are of contextual and topical
importance. It is a malady in our country that political
parties allure young students through their student wings.
They do so because it is an easy method for enlisting
support and participation of student population to their
political programmes. Students, particularly in adolescent
age, are easily swayable by political parties without much
effort or cost as young and tender minds are susceptible to
easy persuasiveness by party leaders. But the disturbing
aspect is that most of the political leaders do not mind
their student supporters developing hostility towards their
fellow students belonging to rival political wings. What
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happened in this case perhaps was only the tip of the
iceberg as campus rivalry has now deteriorated into a bane
of the Country. The print media is now replete with reports
of such calamitous instances in the campus atmosphere.
While at the top layer leaders belonging to different
political parties dine together and socialise with each
other without any personal acrimony as between themselves,
it is a pity that they do not encourage that healthy
attitude to percolate down to the grass root level. Tender
mind gets galvanised on minor issues, frenzy flares up even
on trivialities, young children and adolescents unaware of
the disastrous consequences befalling their own future
indulge in vandalism, mayhem and killing spree against their
own fellow students.
We think that the time is now ripe for legislative
interference to salvage the campus free of political
activities. We leave it to the members of legislatures and
leaders of the country to ponder over this with the
seriousness it deserves and to bring forth necessary
measures to plug it.
We therefore, allow these appeals and set aside the
order of acquittal as against A-1, A-5, A-6 and A-9. We
convict A-1 and A-6 under Section 302 read with Section 34
of the IPC and sentence each to imprisonment for life. We
convict A-5 under Section 326 of the IPC and sentence him to
rigorous imprisonment for five years. We also convict A-9
under Section 326 read with Section 34 of the IPC and
sentence him to rigorous imprisonment for five years. The
acquittal as for the remaining accused would stand
undisturbed. Sessions judge is directed to take steps to put
the above convicted persons in jail to undergo the sentence.