PETITIONER:
DALBIR KAUR & ORS.
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT20/08/1976
BENCH:
GUPTA, A.C.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 472 1977 SCR (1) 280
1976 SCC (4) 158
ACT
Constitution of India Article 136--Practice and
procedure--Whether a court of criminal appeal--Whether can
interfere with concurrent findings of fact --interference
when grave and substantial injustice.
Indian Penal Code---Section 302--Non-examination of
eye witnesses--Interested witnesses--Meaning of--Necessity
of examining independent witnesses--Motive--Delay in lodging
FIR and despatch to Magistrate--Identification parade,
necessity of.
HEADNOTE
The deceased Ajaib Singh had two sons, Dalbir Singh and
Amir Singh. Dalbir Singh along with his wife Mrs. Dalbir
Kaur and Mrs. Dalbir Kaur’s brother Ajit Singh and her
cousin, Pura, n Singh were charged with having committed the
murder of Ajaib Singh and Amir Singh. A partition had taken
place between Ajaib Singh, Dalbir Singh and Amir Singh.
After the partition Dalbir Singh separated and lived in a
separate portion of the same house where as Ajaib Singh and
Amir Singh lived jointly. Mrs. Jaswant Kaur, the wife of
Amir Singh had delivered a child and, therefore, her
mother Shiv Kaur was in the house to look after Jaswant Kaur
and the child. As the newly born child was not well, both
Jaswant Kaur and her mother were awake at that time and
electric bulb was burning in the courtyard. Ajaib
Shingh was sleeping near the stable outside the house and
Amir Singh was sleeping in the house. All the male appel-
lants were armed with kitpans and Mrs. Dalbir Kaur was
armed with datar. They went to the house of Ajaib Singh at
about 1.00 A.M. Dalbir Singh had altercation with his
father Ajaib Singh and expressed his dissatisfaction over
the partition of the lands and asked his father and brother
to get ready to meet the consequences and to call anybody
for help if they liked. Thereupon Dalbir Singh gave a
kirpan blow on the left jaw of Ajaib Singh and Mrs. Dalbir
Kaur gave a datar blow on his right shoulder while Ajit
Singh and Puran Singh gave kirpan blows on his chest.
Thereafter, the appellants proceeded to the cot of Amir
Singh who was caught hold of by Dalbir Singh and Puran
Singh. Ajit Singh gave a kirpan blow on his right leg while
Mrs. Dalbir Singh gave a datar blow on his left shoulder.
Dalbir Singh and Puran Singh thereafter dragged Amir Singh
and put him over the body of Ajaib Singh and thereafter all
the appellants caused further injuries to Amir Singh and
Ajaib Singh. Both of them died on the spot. Jaswant Kaur
and Shiv Kaur raised alarm but they were threatened to keep
quiet as a result of which those two helpless ladies shut
themselves up in one of the rooms. Some time early morning
the appellants left the house. Jaswant Kaur narrated the
incident to Mukhtiar Singh and Mohinder Singh and ultimately
left with Mohinder Singh and lodged the first information
report at the police station which is about six miles away
at 9.00 a.m. The Sessions Court convicted the appellants
under s. 302 of the Indian Penal Code and sentenced the male
appellants to death sentence and to the female appellant to
imprisonment for life. In appeals and confirmation proceed-
ings, the High Court confirmed the conviction and sentence
imposed by the trial court.
In an appeal by special leave, the appellants
contended:
1. Since the special leave is granted, the appel-
lants are entitled to argue all the questions of
law and facts.
2. The only eye-witnesses, namely, Mrs. Jaswant
Kaur and Mrs. Shiv Kaur are the interested witness-
es and, therefore, their evidence should not be
accepted.
281
3. No independent witness has been examined to
prove the recoveries.
4. There was no evidence of motive for the murder.
5. The prosecution case should be thrown out
because of the non-examination of four material
witnesses, Mohinder Singh, Dayal Singh who are
alleged to have watched the assault and Mukhtiar
Singh and Mohinder Singh who went to the house
after the assault was over.
6. There was delay in the lodging of the first
information report and also in its despatch to the
Magistrate.
7. Jaswant Kaur and Shiv Kaur gave graphic de-
scription of the occurrence by detailing the nature
of injuries and the parts of the body where they
were inflicted. Such a photographic description
smacks of the evidence being tainted one.
8. The case of Ajit Singh deserves special con-
sideration. Shiv Kaur failed to identify him at
the test identification parade and if Ajit Singh is
acquitted, all the appellants would be exonerated,
since if one innocent person can be implicated
there is no guarantee that others would not be so
implicated.
HELD: (1) The principles governing interference
by this Court in a criminal appeal by special
leave were summarised as follows:
(1 ) That this Court would not interfere with
the concurrent findings of fact based on pure
appreciation of evidence even if it were to take a
different view on the evidence;
(2) That the Court will not normally enter into a
reappraisement or review of the evidence, unless
the assessment of the High Court vitiated by an
error of law or procedure or is based on error of
record, misreading of evidence or is inconsistent
with the evidence, for instance, where the ocular
evidence is totally inconsistent with the medical
evidence and so on;
(3) That the Court would not enter into credi-
bility of the evidence with a view to substitute
its own opinion for that of the High Court;
(4) That the Court would interfere where the
High Court has arrived at a finding of fact in
disregard of a judicial process, principles of
natural justice or a fair hearing or has acted in
violation of a mandatory provision of law or proce-
dure resulting in serious prejudice or injustice to
the accused;
(5) This Court might also interfere where on the
proved facts wrong inferences of law have been
drawn or where the conclusions of the High Court
are manifestly perverse and based on no evidence.
[290D--H]
Pritam Singh v. The State [1950] SCR 453;
Mohinder Singh v. The State [1950] SCR 821; Hem Rai
v. The State of Ajmer [1954] SCR 1133; Khachera
Singh v. State of Uttar Pradesh A.I.R. [1956] S.C.
546; Saravanabhavan v. State of Madras, AIR [1966]
S.C. 1273; Piara Singh v. State of Punjab [1969] 1
SCC 379; Nargun Sunder Das Godeia and others v.
State of Rajasthan [1970] 1 SCC 794; Guli Chand v.
Stale of Rajasthan [1974] 3 SCC 698; Kaur Sain v.
State of Punjab [1974] 3 S.C.C. 649; Abdul Gani v.
State of Madhya Pradesh of A.I.R. [1954] SC 31;
Kanbi Nanii Virji and others v. State of Gujarat
[1970] 3 SCC 103 and Dharam Das and others v. State
of U.P. [1972] 2 SCC 216, followed.
(2) Since the incident took place at midnight inside
the house, the only natural witnesses who could be present
to see the assault would be Jaswant Kaur and her mother.
The close relative who is a very natural witness cannot be
regarded as an interested witness. The term "interested
witness" postulates that the person concerned must have some
direct interest in seeing that the
282
accused person is somehow or the other convicted either
because he had some animus with the accused or for some
other reason. In the instant case there, is no evidence to
indicate that either Jaswant Kaur or Shiv Kaur bore any
animus against the accused. [293A--B]
Dalip Singh and others v. State of Punjab [1954] SCR 145
and State of Punjab v. Jagir Singh and others [1974] 3 SCC
277, followed.
The evidence of these witnesses cannot be rejected
merely on the ground that they were relatives of the de-
ceased. They have given a graphic description of what they
saw. There is no reason to discard the assessment of both
the courts below about these two witnesses. There is cir-
cumstantial evidence to support the intrinsic evidence given
by these two witnesses. They are the extract from the
birth register proving the birth of the son to Mrs. Jaswant
Kaur. The electricity fitting in the house and a bulb in
the courtyard is proved from the sketch map and the photo-
graph. [294 G--H, 295 A--E]
(3) In the instant case the witnesses watched the occur-
rence from a close distance in electric light. The assault
was so disasterous and gruesome that it must have made a
definite and lasting impact on the memory of the witnesses.
Human memory is like a memory which takes snap shorts of
striking incident and then transmits the same through the
words of mouth faithfully with absolute accuracy and preci-
sion. In view of the electric bulb burning and since the
accused were fully known to the informant Jaswant Kaur,
there is nothing unusual if she gave the names and parentage
of all the a, acused persons in the F.I.R. [302 G--H,
303---A]
(4) The weapons recovered are blood stained and were
recovered at the instance of the appellants. Both the
courts below have accepted the evidence of recovery. 296
[A--C]
Nachhettar Singh & Others v. State of Punjab A.I.R. 1976
S.C. 351, distinguished.
(5) The partition with which Dalbir Singh was not satis-
fied was the motive for the murder. Both the courts below
have found this to be the motive. In any case, the High
Court also confirmed the finding that even if there was no
motive, the offence has been established by the evidence of
the eyewitnesses. [297 A--F]
(6)’In the present case, four witnesses were not exam-
ined because two, of them were relatives of Dalbir Singh and
two were won over by the accused according to the prosecu-
tion and were not likely to speak the truth and they were
present in the court. Moreover, in the present case there
are two independent witnesses who are corroborated by the
medical evidence and the evidence of the recovery of the
weapons at the instance of the appellants themselves. The
fact of non-examination of Mohinder Singh is immaterial
because the question of bulb was a minor matter. Non-exami-
nation of Mohinder Singh would not out-weigh the evidence
given by the eye-witnesses corroborated by the sketch and
photographs. [297-H, 298 A--H, 299 A--E]
Sahai Ram v. State of U.P.A.I.R. 1973 S.C. 618, distin-
guished.
Narain and others v. The State of Punjab [1959] Supp.
(1) S.C.R. 724 and Masalti v. State of U.P. [1964] 8 S.C.R.
133, referred to.
There is no duty on the prosecution to examine witnesses
who might have been gained over by the accused and even if
those witnesses are not produced by the prosecution there is
nothing to stop the accused from applying to the court for
examining such witnesses under s. 540 of the Criminal Proce-
dure Code. No such application was ever made by the appel-
lants either before the trial court or before the High
Court. Such an application is made here for the first time
which is rejected since this Court in special jurisdiction
does not entertain such application. [300 F H, 301-A]
(7) There was no delay in lodging the F.I.R. after the
gruesome murder. Mrs. Jaswant Kaur and Mrs. Shiv Kaur were
threatened by the accused as a
283
result of which they had to shut themselves in the room and
it was only at 6 a.m. that Mrs. Jaswant Kaur accompanied by
Mohinder Singh started for the police station and lodged the
first information report at 9 a.m. The police station being
at a distance of six miles the informant who is a woman
could no run to the police station at night and take the
risk of being killed by the accused who had stayed on in
their part of the house even after the occurrence. The delay
in the despatch of the F.I.R. to the magistrate has been
clearly explained by the sub inspector who deposed that he
had gone to the Magistrate’s court but as the Magistrate was
not in his seat, he proceeded to Gurdaspur to give a copy of
the first information report to Superintendent of Police and
after his return he delivered the FIR to the Magistrate at 3
p.m. Both the courts below have believed the evidence of
the sub inspector which is supported by documents. [301
F--H, 302 A-B]
(8) So’ far as Ajit Singh is concerned, the testimony is
of a single witness, Jaswant Kaur. It is difficult to rely
on the evidence of Shiv Kaur. So far as Ajit Singh is
concerned although the evidence of Jaswant Kaur is not
distrusted, the possibility of her making an honest mistake
in identifying Ajit Singh cannot be safely excluded or ruled
out. Ajit Singh gave an application praying for a test
identification parade on the ground that he had never gone
to the village at the time of the occurrence but at the
identification parade Jaswant Kaur was not asked to identify
him. Jaswant Kaur could not have known appellant Ajit Singh
very well. The prosecution ought to have produced Jaswant
Kaur also at the test identification parade to identify Ajit
Singh. It is unsafe to rely on the single testimony of
Jaswant Kaur. Therefore, he was given benefit of doubt.
For the remaining appellants the conviction and sentence
upheld. [303G--H, 304 A G]
A.C. Gupta, J. (Concurring)
HELD:It is not possible to catalogue exhaustively all
possible circumstances in which it can be said that
grave and substantial injustice is done. [284 A-B].
JUDGMENT
CRIMINAL APPELLATE JURISDICTION ’ Criminal Appeals Nos.
232 and 373 of 1975.
(Appeals by Special Leave from the Judgment and Order
dated 10-3-1975 of the Punjab and Haryana High Court in
Criminal Appeal NO. 869/74 and Murder Reference No. 44/74).
Frank Anthony and Harjinder Singh, for the appellants
in both the appeals.
O.P. Sharma, for the respondent in both the appeals.
The Judgment of the Court was delivered by Fazal Ali, J.
Gupta, J. gave a separate opinion.
GUPTA, J.---I agree with my learned brother that the
appeals of Dalbir Singh, Puran Singh and Smt. Dalbir Kaur
alias Bhiro should be dismissed. The Judgment of the High
Court which affirms the order of conviction and the sen-
tences passed on these appellants by the trial court does
not appear to suffer from any infirmity which can be said to
have caused a failure of justice so far as the cases of
these appellants are concerned. I also agree that the
appeal of Ajit Singh should be allowed for the reasons
stated in the Judgment of my learned brother.
The decisions of this Court referred to in the Judgment
of my learned brother lay down that this Court does not
interfere with the
284
findings of fact unless it is shown that "substantial and
grave injustice has been done". But whether such injustice
has been done in a given case depends on the circumstances
of the case, and I do not think one could catalogue exhaus-
tively all possible circumstances in which it can be said
that there has been grave and substantial injustice done in
any case. In the appeals before us the findings recorded by
the trial court and affirmed by the High Court do not dis-
close any such exceptional and special circumstances as
would justify the claim made on behalf of the appellants
whose appeals we propose to dismiss that there has been a
failure of justice in these cases.
FAZAL ALI, J.--These two appeals by special leave are
directed against the judgment of the Punjab & Haryana High
Court dated March 10, 1975, upholding the convictions and
sentences imposed on the appellants by the Trial Court of
Sessions Judge, Gurdaspur. The two appeals arise out of the
same judgment and, therefore, will be dealt with by us by
one common judgment. Criminal Appeal No. 232 of 1975 has
been filed by Smt. Dalbir Kaur @ Bhiro, Puran Singh and
Ajit Singh, while Criminal Appeal No. 373 of 1975 has been
filed by Dalbir Singh. The Sessions Judge convicted all
the appellants under ss. 302/34 I.P.C. and sentenced Dalbir
Singh, Puran Singh and Ajit Singh to death and Dalbir Kaur
to imprisonment for life. The convictions and sentences
passed by the Sessions Judge were upheld by the High Court.
The High Court refused to grant certificate for leave to
appeal to Supreme Court and thereafter on an application
made to this Court special leave was granted.
Two questions arise in these appeals:
(1) Can this Court in a criminal appeal by
special leave enter into a fresh review or reap-
praisement of the evidence and examine
the question of credibility of witnesses
where the two Courts have concurrently
found that the prosecution case against the appel-
lants has been proved; and
(2) Is it open to the appellant, once special
leave is granted, to argue on questions of fact at
the hearing, or is he required to confine his
arguments only to the points on which special leave
could be granted.
Not that these points are not covered by authorities but in
spite of a catena of decisions of this Court laying down the
various principles from time to time over two decades’ and a
half counsel for the parties have been insisting upon this
Court to go into the questions of fact in order to examine
whether the judgment of the High Court is correct. I would,
therefore, like to review the decisions of this Court on the
two points mentioned above so as to clarify the position and
settle the controversy once for all.
As to the principles on which special leave is granted
by this Court, the same have been clearly and explicitly
enunciated in a large number of decisions of this Court. It
has been pointed out that the Supreme Court is not an ordi-
nary Court of criminal appeal and does not inter-
285
fere on pure questions of fact. It is only in very special
cases where the Court is satisfied that the High Court has
committed an error of law or procedure as a result of which
there has been a serious miscarriage of justice that the
Court would interfere with the concurrent findings of the
High Court and the Trial Court. It has also been pointed
out by this Court more than once that it is not in the
province of this Court to reappraise the evidence and to go
into the question of credibility of the witnesses examined
by the parties, particularly when the Courts below has,
after considering the evidence, given their findings there-
on. In other words, the assessment of the evidence by the
High Court would be taken by this Court as final, unless it
is vitiated by any error of law or procedure, by the princi-
ples of natural justice, by errors of record, or misreading
of evidence, non-consideration of glaring inconsistencies
in the evidence which demolish the prosecution case or where
the conclusion of the High Court is manifestly perverse and
unsupportable and the like. As early as 1950 this Court
in Pritam Singh v. The State(1) speaking through Fazal Ali,
J., (as he then was) observed as follows:
"The obvious reply to all these arguments
advanced by the learned counsel for the appellant,
is that this Court is not an ordinary Court of
criminal appeal and will not, generally speaking
allow. facts to be reopened, especially when two
Courts agree in their conclusion in regard to them
and when the conclusions of fact which are chal-
lenged are dependent on the credibility of witness-
es’ who have been believed by the trial Court which
had the advantage of seeing them and hearing their
evidence."
"In arguing the appeal, Mr. Sethi proceeded
on the assumption that once an appeal had been
admitted by special leave, the entire case was at
large and the appellant was free to contest all the
findings of fact and raise every point which could
be raised in the High Court or the trial Court.
This assumption is, in our opinion, entirely unwar-
ranted."
"The rule laid down by the Privy Council is
based on sound principle, and, in our opinion, only
those points can be urged at the final hearing of
the appeal which are fit to be urged at the prelim-
inary stage when leave to appeal is asked for, and
it would be illogical to adopt different standards
at two different stages of the same case."
On a careful examination of article 136 along
with the preceding article, it seems clear that the
wide discretionary power with which this Court is
invested under it is to be exercised sparingly and
in exceptional ’cases only, ........ "
Generally speaking, this Court will not
grant special leave, unless it is shown that
exceptional and special circumstances exist, that
Substantial and grave injustice has been done and
that the case in question presents features of
sufficient gravity to warrant a review of the
decision appealed against."
(1) [19501 S.C.R. 453.
286
Analysing this decision, two principles appear to
have been clearly laid down by this Court:
(1 ) that in appeals by special leave against
the concurrent findings of the Courts below, this
Court would not go into the credibility of the
evidence and would interfere only when exceptional
and special circumstances exist which result in
substantial and grave injustice having been done to
the accused; and
(2) that even after special leave has been
granted the appellant is not free to contest all
the findings of fact,’ but his arguments would be
limited only to those points, even at the final
hearing, which could be urged at the stage when the
special leave to appeal is asked for.
This case was followed by another Bench decision of
this Court a little later in Mohinder Singh v. The
State(j) where this Court observed thus:
"This Court, as was pointed out in Pritam
Singh v. The State (1950) SCR 453--will not enter-
tain a criminal appeal except in special and excep-
tional cases where it is manifest that by a disre-
gard of the forms of legal process or by a viola-
tion of the principles of natural justice or other-
wise substantial and grave injustice has been
done."
In Hem Raj v. The State of Ajmer,.(2) the same
principle was reiterated by Mahajan C.J., speaking
for the Court, where it was observed thus:
"Unless it is shown that exceptional and
special circumstances exist that substantial and
grave injusice has been done and the case in
question presents features of sufficient gravity to
warrant a review of the decision appealed against,
this Court does not exercise its overriding powers
under article 136(1) of the Constitution and the
circumstance that because the appeal, has been
admitted by special leave does not entitle the
appellant to open out the whole case and contest
all the findings of fact and raise every point
which could be raised in the High Court. Even at
the final hearing only those points can ,be urged
which are fit to be urged at the preliminary stage
when the leave to appeal is asked for."
In Khacheru Singh v. State of Uttar Pradesh(3) it
was pointed out that this Court does not interfere
with the findings of fact arrived at by the Courts
below, unless something substantial has been shown
to persuade this Court to go behind the findings of
fact. Imam, J. who spoke for the Court observed as
follows:
(1) [1950] S.C.R. 821.
(2) [1954] S.C.R. 1133.
(3) A.I.R. [1956] S.C. 546.
287
"In an appeal by way of special leave this
Court usually does not interfere with the findings
of fact arrived at by the Courts below and nothing
substantial has been shown to persuade us to go
behind the findings of fact arrived at by them."
In Saravanabhavan v. State of Madras(1), Hidayatul-
lah, J., (as he then was) speaking for the majority
crystallised and reiterated the principles already
laid down by this Court on previous occasions and
observed as follows:
"No doubt this Court has granted special
leave to the appellants but the question is one of
the principles which this Court will ordinarily
follow in such an appeal. It has been ruled in
many cases before that this Court will not reassess
the evidence at large, particularly when it has
been concurrently accepted by the High Court and
the court or courts below. In other words this
Court does not form a fresh opinion as to the
innocence or the guilt of the accused. It accepts
the appraisal of the evidence in the High Court and
the court or courts below. Therefore, before this
Court interferes something more must be shown, such
as, that there has been in the trial a violation
of the principles of natural justice or a depriva-
tion of the rights of the accused or a misreading
of vital evidence or an improper reception or
rejection of evidence which, if discarded or
received, would leave the conviction unsupportable,
or that the court or courts have committed an error
of law or of the forms of legal process or proce-
dure by which justice itself has failed. We
have, in approaching this case, borne these princi-
ples in mind. They are the principles for the
exercise of jurisdiction in criminal cases, which
this Court brings before itself by a grant of
special leave."
The minority judgment in the same case by Wanchoo,
J., (as he then was), so far as the question of
interference by this Court was concerned, also took
more or less the :same view and observed as
follows:
"Ordinarily, this Court does not go into the
evidence when dealing with appeals under Art.
13 6 of the Constitution particularly when there
are concurrent findings. This does not mean that
this Court will in no case interfere with a concur-
rent findings of fact in a criminal appeal; it
only means that this Court will not so interfere in
the absence of special circumstances. One such
circumstance is where there is an error of law
vitiating the finding as, for example, where the
conviction is based on the testimony of an accom-
plice without first considering the question
288
whether the accomplice is a reliable witness.
Another circumstance is where the conclusion
reached by the Courts below is so patently opposed
to well established principles of judicial ap-
proach, that it can be characterised as wholly
unjustified or perverse."
The only difference between the two views was
that while the majority view was that except for
the principles mentioned above the Supreme Court
could never interfere with the concurrent findings
of fact in a criminal appeal, the minority view
agreed with the principles but it held that in view
of special circumstances as pointed out in the
observations quoted above the Court could inter-
fere. At any rate, according to both the views the
ratio is that this Court would not normally inter-
fere with the concurrent findings of fact, unless
there are special circumstances justifying inter-
ference.
In Piara Singh v. State of Punjab(1) this Court
refused to interfere because it thought that the
points involved related to pure appreciation of
evidence and no error of law was at all committed
and observed as follows:
"The High Court has examined in detail the
argument of the appellant on this point and reached
the conclusion that the statement of the approver
with regard to the packing of the hand grenade
should be accepted as true. The question involved
is one of appreciation of evidence and not a ques-
tion of law."
In Hatgun Sunder Das Godeja and others v. The
State of Maharashtra(2) it was reiterated that this
Court does not normally proceed to review the
evidence, unless there was some illegality or
irregularity in the approach of procedure. In
this connection, the Court observed as follows:
"We may appropriately repeat-what has often
been pointed out by this Court that under Article
136 of the Constitution this Court does not normal-
ly proceed to review the evidence in criminal cases
unless the trial is vitiated by some illegality or
material irregularity of procedure or the trial is
held in violation of rules of natural justice
resulting in grave miscarriage of justice. This
Article. reserves to this Court a special discre-
tionary power to interfere in suitable cases when
for special reasons it considers that interference
is called for in the larger interests of justice."
In a recent decision of this Court in Guli
Chand v. State of Rajasthan(3) this Court observed
as follows:
(1) [1969] 1 S.C.C. 379. (2)
[1970] 1 S.C.C. 724.
289
"It is difficult, after considering the
totality of evidence, to hold that the concurrent
findings of fact given by the Courts below as
regards the proof of guilt of each accused
beyond reasonable doubt are really erroneous one
may not agree with the assessment of the evidence
of each witness individually either by the trial
Court or by High Court. Yet, we do not think
that this is a fit case for interference under
Article 136 of the Constitution. Consequently,
we uphold the convictions and sentences of the
appellants and dismiss this appeal."
To the same effect is the decision of this
Court in Kaur Sain v. State of Punjab,(1) where
Chandrachud, J., speaking for the Court observed
thus:
"It is not the practice of this Court to under-
take a fresh appraisal of the evidence in such
matters. . If two views of the evidence
were reasonably possible,’we would not have
substituted our conclusion for that of the High
Court."
The case really lays down that where the appre-
ciation of the evidence by the Courts below is not
erroneous even though this Court may be inclined
to take a different view it would not be a fit case
for interference.
Another important principle that has been enunciat-
ed by this Court is that even where the prosecu-
tion case consists of an admixture of truth and
falsehood it is the duty of the Court to sift truth
from falsehood, to separate the grain from the
chaff instead of taking the easy course of reject-
ing the entire prosecution case in view of some
discrepancy here or there. If, after applying
these legal principles, the Court finds that truth
and falsehood are so inextricably mixed together
that it is not possible to sift truth from false-
hood the Court would be justified in rejecting the
prosecution case. In Abdul Gani v. State of
Madhya Pradesh(2) this Court observed as follows:
"The learned Sessions Judge was undoubtedly
in error when he said that it was impossible to
find out from the state of the prosecution evi-
dence with any amount of certainty who among the
accused persons participated in the offence and
that it would be a pure gamble to. convict any of
the accused. He made no effort to disengage the
truth from the falsehood and to sift the grain from
the chaff but took an easy course and after holding
the evidence discrepant held that the whole case
was untrue."
To the same effect is a later decision of this
Court in Kanbi Nanji Virji and others v. State of
Gujarat(3) where this Court reiterated as follows:
"It is true that often times the courts have
to separate to the truth from falsehood. But where
the two are so
(1) [1974] 3 S.C.C. 649.
(2) A.I.R. 1954S.C.31
(3) [1970] 3 S.C.C. 103.
290
intermingled as to make it impossible to separate
them, the evidence has to be rejected in its en-
tirety."
Recently also in Dharam Das and others v. State
of U.P. (1) this Court commented on this aspect of
the matter thus:
"In our view, the trial court approached the
case ignoring the basic principle that unless the
exaggeration and falsehood in the evidence are on
points destructive of the substance of the prosecu-
tion story, it is the Court’s duty to sift the
evidence, separating truth from falsehood, and come
to its conclusion about the guilt or innocence of
the persons accused of the offence. Exaggeration
or falsehood on points which do not touch the core
of the prosecution story are not to be given undue
importance, provided, of course, there is trust-
worthy evidence supporting the real substance and
core of the prosecution case."
Thus the principles governing interference by
this Court in a criminal appeal by special leave
may be summarised as follows:
(1) that this Court would not interfere with
the concurrent finding of fact based on pure appre-
ciation of evidence even if it were to take a
different view on the evidence;
(2) that the Court will not normally enter into
a reappraisement or review of the evidence, unless
the assessment of the High Court is vitiated by an
error of law or procedure or is based on error of
record, misreading of evidence or is inconsistent
with the evidence, for instance, where the ocular
evidence is totally inconsistent with the medical
evidence and so on;
(3) that the Court would not enter into credi-
bility of the evidence with a view to substitute
its own opinion for that of the High Court;
(4) that the Court would interfere where the
High Court has arrived at a finding of fact in
disregard of a judicial process, principles of
natural justice or a fair hearing or has acted in
violation of a mandatory provision of law or
procedure resulting in serious prejudice or injus-
tice to the accused;
(5) this Court might also interfere where on the
proved facts wrong inferences of law have been
drawn or where the conclusions of the
High Court are manifestly perverse and
based on no evidence:
(1) [1972] 2 SCC. 216.
291
It is very difficult to lay down a rule of universal appli-
cation but the principles mentioned above and those adum-
brated in the authorities of this Court cited supra provide
sufficient guidelines for this Court to decide criminal
appeals by special leave. Thus in a criminal appeal by
special leave, this Court at the hearing examines the evi-
dence and the judgment of the High Court with the limited
purpose of determining whether or not the High Court has
followed the principles enunciated above. Where the Court
finds that the High Court has committed no violation of the
various principles laid down by this Court and has made a
correct approach and has not ignored or overlooked striking
features in the evidence which demolish the prosecution
case, the findings of fact arrived at by the High Court on
an appreciation of the evidence in the circumstances of the
case would not be disturbed.
Much time, energy and expense could be saved if the
principles enunciated above are strictly adhered to by
counsel for the parties and they confine their arguments
within the four corners of those principles and they cooper-
ate in this sound and subtle judicial method without trans-
gressing the limits imposed by the decisions of this Court
on its power to interfere with the concurrent findings of
fact. In the instant case both the Courts below have,
after full and complete appreciation of the evidence, ac-
cepted the prosecution case and have held that the guilt
against all the appellants has been proved beyond reasonable
doubt. This should have been sufficient to dispose of this
appeal. But as Mr. Frank Anthony learned counsel for the
appellants has argued the case at very great length and
seemed to have prepared the case with great thoroughness and
from corner to corner, we would like to deal with some of
the important arguments advanced by him after giving a brief
narration of the main features of the prosecution case.
This is really a most unfortunate case of patricide
where a son along with his companions appears to have mur-
dered his own father and brother over a petty partition
dispute relating to few Killas of land. The murder commit-
ted by the appellants, if proved, is both gruesome, brutal
and unprovoked. The deceased Ajaib Singh appears to have
partitioned his properties between his two sons, namely,
Dalbir Singh--who is one of the appellants--and Amir Singh
one of the sons who was killed. Ajaib Singh owned 18
killas of land which was divided in three shares, two
shares being allotted to Dalbir Singh and Amir Singh and one
share was kept by the deceased Ajaib Singh for himself.
After the partition Dalbir Singh separated and lived in a
separate portion of the house, while both the deceased Ajaib
Singh and Amir Singh lived jointly in two rooms the verandah
being common. Ajaib Singh was having joint mess and culti-
vation with his son Amir Singh. Dalbir Singh was married
to Mst. Dalbir Kaur @ Bhiro who is also one of the appel-
lants. Amir Singh was married to Mst. Jaswant Kaur. As
Jaswant Kaur had given birth to a child she had called her
mother Mst. Shiv Kaur to look after her and the child.
According to the prosecution Dalbir Singh left for his
father-
292
in-law’s village Santupura a day prior to the occurrence,
while his wife Bhiro along with her children followed him
in the morning of the day of occurrence. It is alleged
that on the might intervening 30th and 31st July, 1973 at
about 1 A.M. Jaswant Kaur and her husband Amir Singh were
lying on their cots in the verandah and Shiv Kaur was also
sleeping in front of the verandah while Ajaib Singh was
lying on a cot near the buffalo in the court-yard. As the
newly born child of Jaswant Kaur was not well both Jaswant
Kaur and her mother Shiv Kaur were awake t0 nurse him. At
that time electric bulb was burning in the court-yard
because an electric connection had been recently taken from
a neighbour in view of the illness of the child of Jaswant
Kaur. Near about 1 A.M. Jaswant Kaur and Shiv Kaur heard
the noise of foot-steps and they saw Dalbir Singh, Ajit
Singh and Puran Singh armed with kirpans while Dalbir Kaur
@ Bhiro armed with a datar standing by the side of the cot
of Ajaib Singh. Dalbir Singh had an altercation with his
father Ajaib Singh and expressed his dis-satisfaction over
the partition of the lands and asked his father and brother
to get ready to meet the consequences and to call anybody
for help if they liked. Thereupon Dalbir Singh gave a
kirpan blow on the left jaw of Ajaib Singh and Bhiro gave a
datar blow on his right shoulder, while Ajit Singh and Puran
Singh gave kirpan blows on his chest. After this gruesome
operation was over, the accused proceeded to the cot of Amir
Singh who was caught hold of by Dalbir Singh and Puran Singh
and Ajit Singh is alleged to have given a kirpan blow on his
right leg while Mst. Bhiro gave a datar blow on his left
shoulder. Dalbir Singh and Puran Singh then dragged Amir
Singh and put him over the body of Ajaib Singh and thereaf-
ter all the appellants caused further injuries to Amir Singh
and Ajaib Singh with their respective weapons on different
parts of their bodies as a result of which they succumbed to
the injuries. Jaswant Kaur and Shiv Kaur raised alarm but
they were threatened to keep quiet as a result of which
these two helpless ladies shut themselves up in one of
the rooms. Sometime in the early morning the accused who
had stayed on in their part of the house left the
village and went away. Jaswant Kaur narrated the incident
to Mukhtar Singh and Mohinder Singh and ultimately left with
Mohinder Singh and lodged the First Information Report at
police station Sadar Batala at 9 A.M. Thereafter the Inves-
tigating Officer proceeded to the spot, prepared an inquest
report sent bodies of the two deceased for post-mortem
examination and conducted the usual .investigations. It is
further alleged that in the course of the investigation all
the. appellants made certain statements on the basis of
which recoveries of the kirpans and the datar were made from
the accused concerned. The police after usual investigation
submitted chargesheets as a result of which the appellants
were committed to the Court of Session and ultimately con-
victed and sentenced as indicated above. The Sessions Judge
made a reference to the High Court for confirmation of the
sentence imposed on all the appellants and appeals were also
filed by all the accused and the High Court after consider-
ing the entire evidence agreed with the view taken by the
Sessions Judge confirmed the sentences and dismissed the
appeals.
293
The defence pleaded innocence and Ajit Singh particular-
ly pleaded alibi and stated that he had never gone to the
village Marrar Kalan where the occurrence had taken place.
It might be mentioned here that the appellant Puran Singh
was a full brother of Bhiro while Ajit Singh was her cousin.
The central evidence against the appellants consists of the
statements of P.W. 3 Jaswant Kaur and P. W. 4 Shiv Kaur who
have given a complete narrative of the prosecution case as
indicated above. These two eye witnesses have been de-
scribed as interested witnesses by counsel for the appel-
lants but we do not subscribe to this view. There can be
no doubt that having regard to the fact that the incident
took place at mid-night inside the house of Ajaib Singh, the
only natural witnesses who could be present to see the
assault would be Jaswant Kaur and her mother Shiv Kaur. No
outsider can be expected to have come at that time because
the attack by the appellants was sudden. Moreover a close
relative who is a very natural witness cannot be regarded as
an interested witness. The term "interested" postulates
that the person concerned must have some direct interest in
seeing that the accused person is somehow or the other
convicted either because he had some animus with the accused
or for some other reason. Such is not the case here. In
the instant case there is absolutely no evidence to indicate
that either Jaswant Kaur or Shiv Kaur bore any animus
against the accused. This Court had an occasion to decide
as to whether a relative could be treated as an interested
witness. In Dalip Singh and others v. State of Punjab(’)
this Court expressed its surprise over the impression
which prevailed in the minds of the members of the bar that
relatives were not independent witnesses and in order to
dispel the same the qualities of independent witnesses were
clearly elucidated. In this connection, Vivian Bose, J.,
speaking for the Court observed as follows:
"We are unable to agree .with the learned
Judges of the High Court that the testimony of the
two eye-witnesses 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 de-
ceased 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. The State of Rajasthan [1952]
S.C.R. 377 & 390. We find, however, that it
unfortunately still persists, if not in the judg-
ments of the courts, at any rate in the argu-
ments of counsel.
A witness is normally to be considered
independent unless he or she springs from sources
which are likely to
(1) [1954] S.C.R. 145
294
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 relative 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
criticism and the mere fact of relationship far
from being a foundation is often a sure guarantee
of truth."
A similar view was taken in a later decision of
this Court in Masalti v. State of U.P.(1) where
this Court observed as follows:
"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."
In Guli Chand’s case (supra) it was pointed out
that normally close relatives of the deceased
would not be considered to be interested
witnesses who would falsely mention the names of
other persons as responsible for causing injuries
to the deceased. Thus in this case also the Court
held that the witnesses concerned even though rela-
tives could not be considered to be interested or
partisan. This Court observed at p. 702 thus:
"It has been held by this Court that the
mere fact that a witness is a relation of a victim
is not sufficient to discard his testimony."
To the same effect are the observations by this Court in
State of Punjab v. Jagir Singh & Ors. (2)
For these reasons, therefore, I am unable to reject the
evidence of P.Ws. 3 and 4 merely on the ground that they
were relatives of the deceased. I have myself carefully
gone through the entire evidence of these two witnesses
and I find that shorn of a few embellishments here and there
their testimony has a ring of truth a colour of consistency
and a sense of straightforwardness as a result of which
their evidence inspires great confidence. They have given a
graphic description of what they had seen. In these circum-
stances, therefore, I do not see any reason to discard
the assessment of the Courts
(1) [1964] 8 S.C.R. 133 (2) [1974] 3
S.C.C. 277
295
below regarding these two witnesses. I will, however, deal
with the general comments made by counsel for the appellants
regarding the entire case a little later. Thus once the
evidence of these two witnesses is believed, the prosecution
case stands proved, apart from anything else. It will,
however, appear that the prosecution had led circumstantial
evidence to support the intrinsic evidence given by these
witnesses. One of the reasons for the presence of P.W. 4
Shiv Kaur in the house and the electric installation was
that Jaswant Kaur had recently given birth to a child. This
fact is clearly proved from the Birth Register Ext. P.O.,
which has been proved by P.W. 10, which clearly shows that a
son was born to Amir Singh who is also known as Bhagta Singh
on July 11, 1973. The entry has been made on July 14, 1973.
This extract from the Birth Register has been proved by
P.W. 10 Sohan Singh Chowkidar of the village who maintains
birth and death register and testifies on oath that he had
himself seen the child of Jaswant Kaur. These two pieces of
evidence therefore prove conclusively that the evidence of
the two witnesses was absolutely true in the sense that one
Jaswant Kaur had given birth to a child she had called
Shiv Kaur a few days before her delivery. The occurrence
took place a little more ’than two weeks after the birth of
the child. Similarly the witnesses (P.Ws. 3 and 4) have
categorically stated that at the time when the accused
entered the house an electric bulb was burning because the
child was not well. That there was electricity fitting
in the house and a bulb in the court-yard is estab-
lished from the sketch map of the place prepared by P.W. 5
Bal Krishan who has been examined to prove the sketches
prepared by him which shows the electric fitting and the
bulb. This is further corroborated by the evidence of P.W.
5 Mohinder Singh. photographer who had prepared the photo-
graph Ext. P.N. which also proves the electric fittings.
In these circumstances the testimony of these two witnesses
on these two essential points is fully corroborated by the
other evidence.
Mr. Anthony however submitted that the prosecution has
not examined the best evidence, namely, Mohinder Singh from
whom the electric connection was borrowed. This was a very
minor matter and the evidence led by the prosecution clearly
proved the fact that there was electric installation and the
bulb actually burning at the time of occurrence and non-
examination of Mohinder Singh would not outweigh the evi-
dence given by the eye witnesses corroborated as it is by
the evidence of P. Ws. 5 & 6 and the documents Exts. P.N.
and P.M.
The prosecution has further led the evidence of recovery
of the weapons from all the appellants at their instance
which are Exts. P.Q., P.S., P.T., and P.U. The weapons
recovered were bloodstained and they were recovered at the
instance of the appellants. Both the Courts below have
accepted this evidence and this was
sought to be repelled by learned counsel for the appellants
on the ground that no independent witness as such as has
been examined to prove the recoveries. It would appear that
so far as Ext. P.Q. 3--1104SCI/76
296
the recovery of kirpan from Pooran Singh is concerned it has
been proved by Darshan Singh brother of Jaswant Kaur. We
find that Jaswant Kaur was not an interested witness be-
cause she was the wife of one of the deceased. Her
brother Darshan Singh’s testimony does not suffer from any
infirmity and he must be considered to be an independent
witness because he bears no animus whatsoever against
any of the appellants. Darshan Singh was examined as a
witness as P.W. 11 and was examined at great length but
no suggestion was given to him that he had any enmity
against the accused. The only thing that was suggested to
him was that he was deposing falsely because of his rela-
tionship---a ground which cannot be entertained.
As regards the recoveries of the weapons at the instance
of Dalbir Kaur, Dalbir Singh and Ajit Singh, it is true that
they have been attested by the police officers and some
independent persons as search witnesses. The police offi-
cers have been examined to prove the search but the other
witnesses have not been examined. That by itself does not
introduce any serious infirmity in the evidence furnished by
the recoveries which at best is only a corroborative piece
of evidence. We shall, however, take. up the case of Ext.
P.U. the recovery of kirpan from Ajit Singh a little later.
The learned counsel for the appellants relied on a deci-
sion of this Court in Nachhettar Singh & others v. State
of Punjab(1) where Bhagwati, J., speaking for the Court
observed as follows:
"It is because of the serious infirmities
in the main version of the occurrence that the
story of arrest, recovery of fire-arms and car-
tridges from the person of the appellants and the
findings of the empties at the place of occur-
rences assumed importance ...... The recovery in
the circumstances of this case ought to have been
proved by examining the witnesses who had witnessed
the recovery."
In the first place that case is clearly distinguishable
because the recoveries in that case suffered from various
other infirmities which led the Court to reject that evi-
dence. Again what the Court observed was that the recovery
should be proved by examining witnesses who had witnessed
the recovery. In the instant case the witnesses were no
doubt examined to prove the recoveries and both the
courts below have accepted their evidence. This is not a
ease where no witnesses for recoveries were examined at all
so that the evidence of recovery could be thrown out on that
ground also. In these circumstances, therefore, the case
cited by the learned counsel for the appellants does not
appear to be of any assistance to him and therefore we
overrule the contention of the learned counsel on this
scope.
It was further urged that there does not appear to be
any motive for murder of the two deceased persons by the
appellants who happened to be the son of one of the deceased
and brother of another. It
(1) A.I.R. 1976 S.C. 831.
297
was submitted that in case of patricide the prosecution must
prove strong and compelling motive before the murder can be
accepted. The learned Sessions Judge has accepted the evi-
dence of motive, namely, the fact that the appellant Dalbir
Singh was wholly dissatisfied with the partition of proper-
ties and particularly because his father Ajaib Singh used
to give the produce of the land to his brother Amir Singh.
The Sessions Judge on the question of motive found as fol-
lows:
"This was the main bone of contention between
Ajaib Singh and Dalbir Singh accused. Dalbir Singh
accused wanted to have three more killas of land
from Ajaib Singh but the latter refused to part
with his land. Although as discussed above, the
circumstances of the case do point out that the
accused had a motive to commit the crime, yet even
if it is assumed for the sake of argument that
the prosecution has not been able to prove by good
evidence that the. accused had any impelling motive
to commit the crime, it would not render any help
to them."
The High Court also confirmed this finding and held that
even if the motive was not proved, if the evidence of the
eye witnesses Jaswant Kaur and Shiv Kaur is accepted the
question of motive pales into insignificance and becomes
absolutely academic. We would, however, hasten to add that
this is no doubt the correct proposition of law, but in the
instant case we should remember that lust of land is a very
sensitive matter. We have known a very large number of
cases resulting in serious disputes cultimating in murders
over small land disputes. Various persons react different-
ly in similar circumstances and we cannot, therefore, ex-
clude: the possibility of the appellant Dalbir Singh having
reacted very sharply against what he considered to be an
inequitable distribution of the property. This would un-
doubtedly provide an adequate motive for the murder which is
demonstrated by the fact that the two deceased persons were
actually murdered by Dalbir Singh and his party. In these
circumstances we are satisfied that the finding of the
Courts below on this point is absolutely correct.
I shall now deal with two important points which were
vehemently pressed by Mr. Anthony learned counsel for the
appellants. In the first place it was contended that the
entire prosecution case should be thrown out because of
non-examination of four material witnesses in this case. It
was submitted that even according to the evidence of Jaswant
Kaur her neighbours Mohinder Singh and Daya Singh had also
witnessed the occurrence. Jaswant Kaur stated this fact at
p. 46 of Paper Book No. II but she also added that even
though they were watching the occurrence they did nothing to
help the deceased nor did they raise any alarm. The counsel
further submitted that these two witnesses were interrogated
by the police and yet they have not been examined to prove
and corroborate the evidence of the eye witnesses. This
omission is undoubtedly there and we have to see as to what
298
is its effect on the truth of the prosecution case. In the
same token it was also contended that two other witnesses,
namely, Mukhtiar Singh and Mohinder Singh who immediately
came to the house and to whom the eye witnesses narrated the
occurrence have also not been examined. Particular comment
was made regarding the non-examination of Mohinder Singh who
had in fact accompanied the informant to the police station.
It was argued by Mr. Anthony that in view of this deliberate
omission to examine material witnesses a reflection is cast
on the fairness of the trial so as to vitiate the convic-
tion of the appellants. Strong reliance was placed by
counsel for the appellants on the decision of this Court in
Habeeb Mohammad v. The State of Hyderabad.(1) In that case
what had happened was that the only witness examined to
prove the firing by the accused was a police Jamadar
whereas a very senior police officer who is said to be
present at the time when the accused gave orders for firing
was not produced and what was more was that no explanation
for the omission to examine this witness was given. In
view of these circumstances and the other infirmities ap-
pearing in that case generally, this Court held that such an
omission to produce a material witness was sufficient to
throw doubt on the prosecution case. In this connection
this Court observed thus:
"In this situation it seems to us that
Biabani who was a top-ranking police officer
present at the scene was a material witness in the
case and it was the bounden duty of the prosecution
to examine him, particularly when no allegation was
made that if produced, he would not speak the
truth .....In our opinion, not only does an adverse
inference arise against the prosecution case from
his non-production as a witness in view of illus-
tration (g) to section 114 of the Indian Evidence
Act, but the circumstance of his being withheld
from the court casts a serious reflection on the
fairness of the trial."
The facts of that case are clearly distinguishable from the
facts of the present case. To begin with, in that case,
excepting the interested witness the police Jamadar there
was no other eye witness to support the occurrence. Second-
ly, this Court clarified its observations that an adverse
inference could be drawn only if no explanation for the
non-examination was given or if no allegation was made that
the witness if produced would not speak the truth. Thirdly,
it appears that although an application was made to the
Trial Court for examination of the witness concerned under
s. 540 of the Code of Criminal Procedure. the Court did not
accede to this prayer. In the instant case the prosecution
has given very reasonable explanation for not examining
these witnesses and there is nothing to show that the ac-
cused filed any application before the Trial Court or even
before the High Court for examining these witnesses as the
Court witnesses nor did they choose to examine them as the
defence witnesses. The Public
(1) [1954] S.C.R. 475.
299
Prosecutor in his statement before the Sessions Judge clear-
ly stated thus at p. 57 of Paper Book No. II:
"I give up Inder Singh and Sadhu Singh PWs as
the uncles of Dalbir Singh accused, Mohinder
Shingh as maternal uncle of Dalbir Singh, I also
give up Mukhtar Singh, Nazir Masih, Pursan Masih,
Chanan Singh and Ravinder Singh IPWs as having been
won over by the accused. They are not likely to
speak the truth and they are present in court."
The reasons given by the Public Prosecutor are
quite understandable, because the witnesses who had
been given up either on the ground that they were
relatives of the appellant Dalbir Singh or that
they had been won over by the accused and were not
likely to speak the truth. This statement of the
Public’ Prosecutor which was recorded by the Trial
Court on June 3, 1974 clearly takes the case out of
the ambit of the ratio of the decision in Habeeb
Mohammed’s case (supra).
Further more, in the instant case, there were
two independent witnesses P.Ws. 3 and 4 who had
proved the actual occurrence and their evidence was
fully corroborated by the medical evidence and the
evidence of the recovery of the weapons at the
instance of the appellants themselves. In these
circumstances, therefore, the principles laid down
in Habeeb Mohamed’s case (supra) will not apply to
this case at all, Further more in Habeeb Mohamed’s
case there was a serious violation of procedure
because the Trial Court refused to summon those
witnesses who were cited by the defence which was
by itself sufficient to vitiate the trial. It was
in view of these circumstances that this Court was
not prepared to convict the accused. In these
circumstances, therefore, the case relied upon by
the learned counsel for the appellants has no
application to the present case.
Reliance was also placed on a decision of this
Court in Sahaj Ram State of U.P. (1) where this
Court observed as follows:
"There is a clear finding of the Sessions
Court to the effect that P.Ws. 1 to 3 had a very
strong motive to falsely ’implicate the four ac-
cused forming group II. In view of these circum-
stances, the High Court’s consideration of the
evidence of P.Ws. 1 to 3 is faulty and erroneous.
The conviction of the appellants by the High Court
is based exclusively on the evidence of these
witnesses giving great importance to Ext. Ka-8. We
have already held that Ext. Ka-8 should not have
been taken into account. Having due regard to the
other circumstances referred to above, the
evidence of P.Ws. 1 to 3 even as regards the appel-
lants, stands considerably discredited and no
conviction can be based on such an evidence.
This really is a case, in our opinion, where the
courts have substantially disbelieved the substra-
tum of the prosecution’s case and have reconstruct-
ed a story of their own against the appellants."
(1) A.I:R. 1973 s.c. 618
300
It would appear that in that case there was no evidence of
the eye’ witnesses at all who were examined as court wit-
nesses and who destroyed the prosecution case completely.
Further more, the witnesses examined by the prosecution,
namely, P.Ws. 1 to 3 were factional witnesses and the find-
ing was that they had very strong motive to implicate the
accused. Lastly in that case the F.I.R. on which the High
Court relied was found to be inadmissible in evidence. It
was in these circumstances that an adverse inference was
drawn against the prosecution for non-examining some of the
witnesses. That case also therefore has no application to
the facts of the present case.
On the other hand in Narain and others v. The State of
Punjab it was pointed out by this Court that if non-examina-
tion of material witnesses was deliberate and international
then a serious reflection was cast on the prosecution and
the Court observed as follows:
"We agree that if a material witness has been deliber-
ately or unfairly kept back, then a serious reflection is
cast on the propriety of the trial itself and the validity
of the conviction resulting from it may be open to chal-
lenge."
In the instant case it has been seen that the Public Prose-
cutor has given a statement that the witnesses concerned
were either relatives of the accused or that had been gained
over by the accused and were, therefore, not likely to
speak the truth. In view of this explanation it cannot be
said that the witnesses were deliberately withheld or un-
fairly kept back and therefore no adverse inference could be
drawn against the prosecution for non-examination of those
witnesses.
To the same effect is the decision of this Court in
Masalti’s case (supra) which was also relied upon by counsel
for the appellants on this point. In that case the Court
observed as follows:
"It is undoubtedly the duty of the prosecution to lay
before the Court all material evidence available to it
which is necessary for unfolding its case; but it would be
unsound to lay down as a general rule that every witness
must be examined even though his evidence may not be very
material or even if it is known that he has been won over or
terrorised. In such a case, it is always open to the defence
to examine such witnesses as their witnesses and the court
can also call such witnesses in the box in the interest of
justice under s. 540 Cr. P.C."
From the observations made by this Court it is quite clear
that there no duty on the prosecution to examine witnesses
who might have been gained over by the accused and even if
those witnesses are not produced by the prosecution there is
nothing to stop the accused from applying to the Court for
examining such witnesses under s. 540 of the Code of Crimi-
nal Procedure. No such application was ever made by the
appellants either before the Trial Court or the High Court
but for the first time it was made in this Court and that
too during the
(1) [19591 supp. 1 S.C.R. 724.
301
course of the arguments. This Court in its special juris-
diction does not entertain such applications, particularly
because the accused had an opportunity to make a similar
application before the Courts below and they have not
availed of the same. For these reasons, therefore, Criminal
Miscellaneous Petition No. 1291 of 1976 filed by the appel-
lants in this Court is rejected.
There is one peculiar feature in this case which is with
regard to the eye witnesses Mohinder Singh and Daya Singh
who are alleged to have seen the occurrence. According to
P.W. 3 they refused to give statements to the p?lice as
deposed to by the Investigating Officer P.W. 14 at p. 65 of
Paper Book No. II. In this connection P.W. 14 Sub-Inspector
categorically stated as follows: (p. 66 of Paper Book No.
II):
"I wanted to record the statements of Mohin-
der Singh and Daya Singh under section 161 Crimi-
nal Procedure Code on 1st August, 1973 but they
were not prepared to make statements regarding
this occurrence and to become witnesses."
What the witness really meant was that although he did
interrogate the witnesses who must have given some state-
ment, yet they were not at all prepared to be cited as
witness for the purpose of giving evidence. I had sent for
the case diary and all that we can say is that after perus-
ing the same 1 do not think that the statement made by the
witness can be said to be either wrong or incorrect. The
witness does not bear any animus against the accused nor was
any such suggestion made to him in cross-examination. I,
therefore, do not see any reason to distrust the evidence
of the Investigating Officer P.W. 14 on this point. If his
evidence is accepted, then the prosecution has given an
adequate explanation for not examining Mohinder Singh and
Daya Singh, and therefore no adverse inference can be drawn
against the prosecution.
It was then submitted that there was delay in the lodg-
ing of the F.I.R. and also in its despatch to the Magis-
trate. This argument is to be stated only to be rejected.
The eye witnesses have clearly stated that after the grue-
some occurrence they were threatened by the accused as a
result of which they had to shut themselves in the room and
it was only in the morning when the accused had left the
house that Jaswant Kaur accompanied by Mohinder Singh start-
ed for the police station at 6 A.M. and lodged the F.I.R.
at the police station at 9 A.M. the police station being at
a distance of six miles from village Marfar Kalan where the
occurrence took place. In view of these facts it is not
reasonable to except the informant to have reached the
police station earlier than 9 A.M. It was impossible to
expect from the informant who was a woman to rush to the
police station at night and take the risk of being killed by
the accused who had stayed on in their part of the house
even after the occurrence and had left the house only in the
morning. It was, however, suggested that there was delay in
the despatch of the F.I.R. to the Magistrate.
302
This matter has been clearly explained by the Sub-Inspector
who after making the necessary entries arrived at the spot
and sent Constable Prem Chand P.W. 15 to take the F.I.R. to
the Magistrate. P.W. 15 Prem Chand has deposed that he had
gone to the Magistrate’s Court but as the Magistrate was not
in his seat he proceeded to Gurdaspur to give a copy of the
F.I.R. to Superindendent of Police and after his return he
delivered the F.I.R. to the Magistrate at 3 P.M. Both the
Courts below have believed the evidence of P.W. 15 which is
supported by the documents and the fact that the Magistrate
actually received the F.I.R. at 3 P.M. If the accused
wanted to contest this fact they should have examined the
officers of the Court of the ’Magistrate to find out whether
or not the Magistrate was available in his seat in the
morning as deposed to by Prem Chand. At any rate, this is a
pure finding of fact which is arrived at on the basis of the
evidence led by the prosecution and we are not prepared to
re-open this finding in the present appeal by special leave
in view of the decisions of this Court.
It was also argued that the evidence of P.Ws. 3
and 4 should be disbelieved because they have given
graphic description of the occurrence by detailing
the nature of the injuries and the parts of the
body where they were inflicted. Such a photogenic
description smacks of the evidence being a tainted
one according to the counsel for the appellants.
Reliance was placed on a decision of this Court in
Shivali Sahabrao Bobade v. State of Maharashtra(1)
where this Court observed thus:
"Some attempt was made to show that the many
injuries found on the person of the deceased and
the manner of their infliction as deposed to by the
eye-witnesses do not tally. There is no doubt that
substantially the wounds and the weapons and the
manner of causation run congruous. Photographic
picturisation of blows and kicks and hits and
strikes in an attack cannot be expected from wit-
nesses who are not fabricated and little turns on
indifferent incompatibilities. Efforts to harmonise
humdrum details betray police tutoring not rugged
truthfulness."
The observations made by this Court were made having regard
to the peculiar facts of that case and cannot be taken to
lay down a rule of universal application. In the instant
case the witnesses watched the occurrence from a close
distance in an electric light, The assault was so dastardly
and gruesome that it must have made a definite and lasting
impact on the memory of the witnesses that made them remem-
ber the assault with its grotesque details. Human memory
is like a camera which takes snap shots of striking inci-
dents and then transmits the same through word of mouth
faithfully with absolute accuracy and precision. Moreover,
it is not a question of giving photographic details of all
but the witnesses have merely described what they actually
saw. It is manifest that in view of the electric bulb
burning, the
(1) [1973] 2 S.C.C. 793.
303
witnesses were bound to observe the weapons with which the
accused were armed, the main parts of the body where the
blows were given and the like. As the accused were fully
known to the informant Jaswant Kaur, there is nothing unusu-
al if she gave the names and parentage of all the accused
persons in the F.I.R. In these circumstances, the comment
of the learned counsel for the appellants is without sub-
stance and must be overruled.
Lastly Mr. Frank Anthony submitted that. the case of Ajit
Singh deserves special consideration, particularly in view
of the fact that one of the eye-witnesses Shiv Kaur has
failed to identify him at the test identification parade.
It was further submitted that if Ajit Singh is acquitted,
then the whole case would fall to the ground, because if
the witnesses could implicate one innocent person there is
no guarantee that the others were not equally innocent.
While I agree with the first part of the statement that
here is some room for giving benefit of doubt to Ajit Singh,
I do not agree with the other part of the argument that
merely because Ajit Singh is given benefit of doubt, the
others also should be acquitted. In Sat Kumar v.
State of Haryana(1) this Court observed thus:
"There is no rule of law that if the Court
acquits certain accused on evidence of a witness
finding it to be open to some doubt with regard to
them for definite reasons, any other accused
against whom there is absolute certainty about his
complicity in the crime based on the remaining
credible part of the evidence of that witness,
should also be-acquitted. It will, however, call
for a closer scrutiny of the evidence and the Court
must feel assured that it is safe to rely upon the
witness for the conviction of the remaining ac-
cused."
To the same effect is the earlier decision of this
Court in Mohammed Moinuddin v. State of Maharash-
tra(2) where it was observed:
"Mr. Nuruddin Ahmed urged that the High Court
on the very same evidence has chosen to give the
benefit of doubt to accused No. 3 and, if so, the
appellant also should be given the benefit of
doubt. We are not inclined to accept this conten-
tion of the counsel."
So far as Ajit Singh is concerned we have the single testi-
mony of Jaswant Kaur as it is difficult to rely on the
evidence of Shiv Kaur, so far as Ajit Singh is concerned,
because she has failed to identify the appellant Ajit Singh
at the test identification parade. Shiv Kaur who is un-
doubtedly a truthful witness has made no secret of the fact
and has frankly admitted in her statement that she did not
know Ajit Singh from before. In these circumstances, there-
fore, the evidence of Shiv Kaur cannot be relied upon for
the purposes of identification so far as the appellant Ajit
Singh is concerned. As regards Jaswant Kaur I see no reason
to distrust her evidence at all, but in the circum-
(1) [1974] 3 S.C.C. 643. (2) [1971] 3
S.C.C. 33 .
304
stances the possibility of this witness making an honest
mistake in identifying Ajit Singh cannot be safely excluded
or ruled out. It may mentioned here that the accused Ajit
Singh at the time of surrendering gave an application which
is Ext. D.B. at p. 42 of Paper Book Part II where he cate-
gorically prayed that be should be put at the test identi-
fication parade for identification by all the eye witnesses
who did not know him from before. In iris statement under
s. 342 of the Code of Criminal Procedure also Ajit Singh
took the stand that he had never gone to the village Marrar
Kalan before or after the occurrence and that is why be
surrendered not at Batala but at Gurdaspur so that he might
not be got identified by the police to the witnesses. The
Magistrate passed an order that the accused Ajit Singh
should be identified at the test identification parade but
unfortunately while Shiv Kaur was asked to identify the
appellant Ajit Singh at the test identification parade,
Jaswant Kaur was not asked to identify him there. It is
true that Jaswant Kaur has stated in her evidence that she
knew the appellant Ajit Singh as being the cousin of Mst.
Bhiro the wife of her husband’s eider brother. He used to
come to the house off and on. It is, therefore, clear that
Jaswant Kaur herself might have caught only a glimpse of the
appellant Ajit Singh when he came to meet Mst. Bhiro who
admittedly lived in a separate portion of the house and,
therefore, the witness Jaswant Kaur could-not have known the
appellant Ajit Singh very well. At any rate, either Ajit
Singh was known to the witness Jaswant Kaur or he was not
known. In any case, in view of the stand taken by Ajit
Singh the prosecution should, in all fairness, have put
Jaswant Kaur also at the test identification parade to
identify Ajit Singh. If Ajit Singh was not known to Jaswant
Kaur as he said, then she would not have been able to iden-
tify him. If Ajit Singh was known to her, then also the
prosecution was not to lose anything. In view of these
circumstances, therefore, I feel it unsafe to rely on the
single testimony of Jaswant Kaur, so far as the appellant
Ajit Singh is concerned. This, however, does not mean that
I am casting any reflection on the credibility or truth-
fulness of any of the eye-witnesses. The appellant Ajit
Singh may have been one of the assailants but in view of the
circumstances mentioned above, a reasonable doubt arises,
regarding his participation, which must be given to him. If
the evidence of Jaswant Kaur is excluded from consideration,
so far as Ajit Singh is concerned, then the evidence of the
recovery of kirpan from Ajit Singh by itself was not suffi-
cient to connect him with the crime, particularly when there
was no statement by Ajit Singh wherein he had confessed
assaulting the deceased and then pointed out to the weapon
as being the weapon with which he had assaulted the de-
ceased. In these circumstances I am satisfied that the
prosecution has not been able to prove its case against Ajit
Singh beyond reasonable doubt and the High Court was wrong
in convicting him.
So far as the other appellants, namely, Dalbir Kaur,
Dalbir Singh, and Puran Singh are concerned, I fully agree
with the judgment of the High Court that the case has been
proved beyond doubt against those appellants and they have
been rightly convicted. Both the Courts
305
below have applied their mind to the question of giving
death sentences and have pointed out that this being the
case of a most dastardly, cruel, gruesome and unprovoked
murder of two innocent and helpless persons, while they were
asleep, death sentence was the only sentence that could be
given to them, particularly to Dalbir Singh and Puran Singh.
The Trial Court rightly gave life imprisonment to Dalbir
Kaur @ Mst. Bhiro as she was a woman and appears to have
played in the hands of her husband.
The result is that the appeal of Ajit Singh is allowed
and the conviction and sentence imposed on him are hereby
set aside. He is acquitted of the charges framed against
him and is directed to. be set at liberty immediately. The
appeals of Dalbir Singh, Puran Singh and Dalbir Kaur @ Mst.
Bhiro are hereby dismissed and the convictions and sentences
imposed on them are affirmed.
P.H.P. Appeals partly
allowed.
306