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PETITIONER: HOSHIAR SINGH AND ORS.

       Vs.

RESPONDENT: STATE  OF  PUNJAB

DATE OF JUDGMENT29/10/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. KULDIP SINGH (J)

CITATION:  1992 AIR  191            1991 SCR  Supl. (1) 575  1992 SCC  Supl.  (1) 413 JT 1991 (4)   344  1991 SCALE  (2)900

ACT: Indian Penal Code, 1860: Ss. 148, 149, 302, 302/149, 307, 307/149:     Murder, attempt to murder--Trial of 9 accused--Acquittal of 4 and con viction of 5---Validity of.. Evidence Act, 1872:     Murder  and attempt to murders-Large number of  partici- pants  Acquittal of some accused and conviction of the  oth- ers---Prosecution evidence Credibility of. Maxim--Falsus  in uno  falsus in omnibus---Applicability of  Exhortation--Evi- dentiary value of.

HEADNOTE:     A  litigation regarding possession of a certain plot  of land was pending in the civil court between the complainants and  the accused persons. On 16.12.1975 at about 8 a.m.  the accused,  armed  with  fire-arms and  sharp  edged  weapons, reached  the  outer-house of the complainants  and  attacked them.  According to the prosecution case, accused No. 4  who was unarmed, raised an exhortation challenging  deceased-1l, and  caught  hold of his long hair while accused 1  fired  a rifle  shot  at  him and accused No.7  gave  two  successive gandasa  blows on his head. Accused No.9 fired a shot at  PW 15.  Accused nos.6 and 8 fired one shot each  at  deceased-2 who  also succumbed to his injuries. PW 16 was fired  at  by accused No. 2 hitting him at the left arm and flank. Accused No. 3 and 5 gave blows from the reverse side of gandasa  and spear to PW. 17 and another woman respectively. On the  side of the accused, a spear blow of accused No. 5 accidently his accused  no. 9 and a shot fired by accused No. 6  accidently hit  another  man on the side of the accused  who  later  on died.  Besides the members of the complainant’s family,  the neighbours, PWs, 18 & 19 also witnessed the occurrence.  The accused  were  alleged to have run away taking a  rifle  and revolver belonging to the complainants. The police  investi- gation culminated in the trial of the 9 accused. 576      The Trial Court acquitted four accused (nos.1 and 3  to 5  ) but  convicted the appellants (accused nos. 2 and 6  to 9) of offences punishable under ss. 148, 149, 302,  302/149, 307  and  307/149  and sentenced them to  various  terms  of

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imprisonment.       The  appeal  filed by the appellant having  been  dis- missed  by the High   Court, an appeal by special  leave  to this Court was filed.       It was contended on behalf of the appellants that  the four accused having been acquitted despite the eye witnesses deposing to their participation in the alleged incident,  no credence should be given to the    prosecution  witnesses in order to maintain  the  convic- tion; and that the prosecution failed to explain the way the injuries were caused to the persons on the accused side. Dismissing the appeal, this Court,       HELD  :1.  The  large number of  participants  in  the occurrence  would, at some place or the other leave a  place for  entertaining  some doubt. But in the instant  case  the prosecution case as a whole remained strong supparted as  it was  by  the  independent evidence of P.Ws.18  and  19,  the neighhours.  The occurrence took place in the  Courtyard  of the  outer  house of the complainant  party.  Blood  stained earth was collected from four places therein during investi- gation.  In the totality of circumstances it cannot be  said that the maximfalsus in uno falsus in omnibus was attracted. [583 H; 584A,C]         2. Exhortation is necessarily not a padding or  over doing and has to be     viewed  in  the correct perspective, in  the  facts  and circumstances of each case. [582E]   In  the instant case, the roles assigned to accused no.  4 who  was  acquitted, that he gave [an]  exhortation,  caught hold  of the long hair of  deceased-1 and carried  away  his rifle after the incident, were, according to    the Sessions Judge,  part of the overdoing. The fact that the  rifle  was being  carried by the accused at the time of his arrest  was considered by him to  be abnormal as otherwise in the normal course  of  events it was expected to  have been  kept  con- cealed.  The Sessions Judge held that he was  not  satisfied about the criminality of accused No. 4. [582 C-D] 577     Besides the exhortation, there were other factors avail- able  which could lead the Sessions Judge to take  the  view that he had, and that was a possible view which any cautious Judge  could have taken. But that per se does not mean  that the  witnesses who had deposed to the participation  of  the accused  at  the  time of occurrence have to  be  dubbed  as liars. [582 E-F] Jainul Haque v. State of Bihar, AIR 1974 SC 45, referred to.     3.1  With respect to acquitted accused No. 3,  the  SeS- sions  judge  held that though PW 17 had  received  injuries from the reverse side of the gandasa from the accused  still in  the  FIR  the use of weapon was mentioned  but  not  the manner  in which it was used; and that it was  normally  ex- pected  of  the accused to have given at least  one  gandasa blow to someone from the sharp side. Besides his taking away the  revolver from the victim after the occurrence  did  not inspire confidence. In the circumstances, the act of  remov- ing  the revolver was viewed with suspicion, more  so,  when its  recovery was made as a result of the disclosure  state- ment  after  a span of eight days of the arrest of  the  ac- cused. The view of the Sessions Judge that the case  against acquitted  accused  No. 3 did not  stand  beyond  reasonable doubt  was  a possible view taken on  a  cautious  approach, without telling on the veracity of the prosecution  witness- es. [582 G-H; 583 A-B]     3.2  Acquitted  accused No. 5 was said to  have  used  a

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spear  bluntwise but the concerned victim was not  found  to have any stab or punctured wound. The recovery of the  spear taking  place after seven days of arrest of the accused  was viewed  with suspicion due to the time lag. There was  omis- sion  in the FIR of the specific manner in which the  weapon had  been used. The finding of benefit of doubt  to  accused No.5  could be given by the Sessions Judge  without  causing least dent to the prosecution case. Shifting the grain  from the  chaff  does not mean loss of grain and gain  of  chaff. Such a view of the learned Judge cannot cast a reflection on the case as a whole. [583 C-E]      3.3  As  regards acquitted accused  No.1,  finding  the description of the weapon being in discord with the  medical evidence the Sessions Judge held the prosecution case not to have  been proved against the accused. Even though the  Ses- sions  Judge  did  not extend the benefit of  doubt  to  the accused  in so many words, his approach was an  exercise  in that  direction.  The acquittal of accused  No.1  too  would cause  no  affectation to the prosecution case as  a  whole. [589 F-G] 578      4.1 The first information report specifically mentioned that the injuries to the persons on the side of the  accused were  as  a result of the doings of  accused  persons  them- selves; and all the eye witnesses cogently and  consistently deposed to that effect. [584 B-C]       4.2 The time of the occurrence being 8.00 a.m. and the inmates  of  the      ’house being  busy  with  their  daily chores, the complainant party would not anticipate  an  assault and be ready with fire-arms  to  put them  to  use.  The fact that the licensed  weapons  of  the complainant party were not shown to have been used by itself established that the injuries received by the persons on the side of the accused were accidental and suffered in the  man ner as suggested by the prosecution. [584 D-E]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.404  of 1979.       From  the  Judgment  and order dated  19.4.79  of  the Punjab High  Court in Criminal Appeal No.843 of 1976. A.N. Mulla, N.D. Garg and T.L. Garg for the Appellants.    Ms. Amita Kohli and R.S. Suri for the Respondents.    The Judgment of the Court was delivered by      PUNCHHI,  J. This appeal by special leave  is  directed against  the  judgment and order of the Punjab  and  Haryana High  Court  at Chandigarh dated April 19,  1979  passed  in Criminal Appeal No. 843 of 1976.       The appellants herein are five in number.  They  along with four others were sent up for trial before the Court  of Session,  Faridkot  on various charges as  detailed  in  the judgment  under appeal. Those four co-accused of the  appel- lants were acquitted by the learned Sessions Judge, and  the matter  seems  to have rested there because  apparently  the State of Punjab did not rake up the issue against those four accused.  On  the basis thereof, the principle plea  of  the appellants  through their counsel herein is that  when  four accused  have been acquitted, the prosecution  story  itself has lost credence, entitling the appellants to acquittal. It is this plea which has engaged our attention. 579     The parties belong to village Talwandi Bhagerian, Distt. Faridkot,  Punjab.  Thereat was a vacant plot  belonging  to

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Karnek  Singh,  Jagatjit  Singh and Wasakha  Singh  sons  of Partap  Singh, who were living abroadAdjoining  thereto  was the  outer house of Balwant Singh P.W.15. According  to  the prosecution, Balwant Smgh P.W.15 had put up a boundary  wall around  it as also a structure thereon storing  wheat  chaff therein,  besides putting cotton sticks and dung  manure  in the  unbuilt space. Mohinder Singh son of the  said  Balwant Singh P.W.15 moved the Civil Court through a suit on  Decem- ber  10,  1975  seeking a decree  for  permanent  injunction restraining his co-villager Jiwan Singh, his sons Naib Singh appellaht herein and Mohinder Singh an acquitted co-accused, as  also  the minor sons of the aforesaid two  accused  from interfering in his possession over the suit land. The  Court on December 10, 1975 granted interim injunction  restraining the  impleaded defendants from interfering with the  posses- sion  of the plaintiff over the disputed plot. Later on  the request  of  the defendants, the Civil  Court  on  29-1-1976 identified the suit property being in Khasra No.345, 346 and 356  and  out of the same vide Order  Ex.D-16,  vacated  the temporary  injunction in respect of Khasra No. 345  and  346 confirming  the  same in respect of Khasra  No.356.  Besides there  had been security proceedings between Mohinder  Singh aforesaid and his brother Ginder Singh (one of the  victims) on the one hand and Nirmal Singh and Darshan Singh acquitted co-accused  and  some others, on the  other.  However,  both parties were ultimately discharged by the Court.     The occurrence took place in that integral on 16-12-1975 when the temporary injunction was in force. The  complainant party except for P.Ws. 18 and 19 are members of one  family. This  relationship  is  disclosed in  the  judgment  of  the learned  Sessions Judge as also by the High Court. We  would not  burden  this judgment with details  thereof.  The  fact remains  that on the night intervening 15th and 16th  Decem- ber, 1975, Jugraj Singh P.W.14, Balwant Singh P.W.15, Ginder Singh, since deceased and Assa Singh had slept in a room  in their outer house, and where they were keeping their  cattle also.  At  about  8.00 a.m. on December 16,  1975,  all  the inmates  of the outer house, and others having  joined  them having come from their residential house, at that’ time were busy doing their assigned chores. At that juncture, the five appellants  namely,  Hoshiar  Singh, armed  with  SBBL  gun, Jalaur  Singh,  armed  with a 12 bore  DBBL  gun,  Ex.M.O/5, Sardara  Singh, armed with a gandasa, Ex.M.O./2,  Ram  Singh alias  Ram Charan Singh, armed with SBBL gun, Ex.M.O./6  and Naib  Singh  son  of Jiwan Singh, armed  with  a  DBBL  gun, Ex.M.O./7  entered the house accompanied by five other  men. They  were  the four acquitted  co-accused  namely,  Thamman Singh, unarmed, Darshan Singh, armed with a gandasa, 580    Mohinder  Singh,  son  of Jiwan Singh  (brother  of  Naib Singh,  appellant) armed with a spear, Nirmal  Singh,  armed with  a rifle and Major Singh, the fifth man, armed  with  a DBBL  gun,  who was lately injured  during  the  occurrence. Thamman  Singh  acquitted co-accused raised  an  exhortation challenging Ginder Singh that he would not be spared.  Tham- man  Singh,    then caught hold of the long hair  of  Ginder Singh  and thereupon Nirmal     Singh  acquitted  co-accused fired a shot with his rifle hitting Ginder Singh on his left flank.  On  Ginder  Singh falling down by the  side  of  the manger, Sardara Singh appellant gave two successive  gandasa blows  on the head of Ginder Singh deceased while he was  in the process of failing down. This was the first casualty. It was  followed  by Naib Singh appellant firing  at    Balwant Singh  P.W.15 hitting him in the abdomen reflective  of  at- tempt  to    murder.  Dhanna Singh alias Shinghara  Singh  a

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member  of the complainant’s family also happened  to  reach the scene of the occurrence having come from the residential house and while in the door way was fired at by Jalaur Singh appellant  with his gun followed by a gun shot by Ram  Singh alias Ram Charan Singh appellant hitting Dhanna Singh.  This was    the  second casualty. Sukhminder Singh,  P.W.16  also reached  there and was fired at by Hoshiar  Singh  appellant hitting  him on the left arm and blank, where upon  he  fell down. This was the second case reflecting attempt to murder. The female folk Bhagwan Kaur P.W.17 and Raj Kaur present  at the place of occurrence while raising alarm laid  themselves over Ginder Singh and Sukhvinder Singh respectively. Darshan Singh acquitted co-accused gave blows from the reverse  side of  his gandasa to Bhagwan Kaur P.W.17, and  Mohinder  Singh co-accused  to  Raj Kaur with the blunt side of  his  spear. Apart from the members of the family involved Sukhdev  Singh P.W.18, Pritam Singh P.W,19, neighbours, had occasion to see the occurrence while standing in their respective houses. On the side of the accused party, so claimed the prosecution, a Barchha(spear) blow of Mohinder  Singh meant to hit Raj Kaur accidently  hit the abdomen of Naib Singh appellant.   Like- wise,  a  shot fired by Jalaur  Singh  appellant  accidently caused injury to Major Singh the co-culprit, but that injury later proved fatal.  The accused persons took away not  only their  weapons  but  a licensed rifle of  Ginder  Singh  and revolver of Mohinder Singh son of Balwant Singh P.W.15  from inside  the  room (baithak) while going away. This   is  the whole  prosecution  case with regard to the motive  and  the actual occurrence.       To  complete  the picture the  deceased  persons  were taken  to the Civil Hospital, Moga wherefrom  Dr.A.C.  Gupta P.W.I sent intimation to Police  Station, Moga Sadar.  Avtar Singh,  ASI.  P.W.20 reached the spot and      recorded  the statement of Jugraj Singh P.W.14 at 11.00 a.m., within three 581 hours of the occurrence, formal F.I.R. of which was recorded at the Police Station at 11.15 a.m. In that statement  vivid details  of  the occurrence are given. The  injured  persons were  examined  and  given medical aid. The  bodies  of  the deceased persons were subjected to post-mortem. The  accused were arrested and weapons were recovered, either from  them, or at their instance, on statements made under Section 27 of the Evidence Act. The accused at the trial pleaded denial to the occurrence but Naib Singh  appellant gave written state- ment,  Ex.D-6 as his counter version. The trial resulted  in the  acquittal of four persons but so far as the  appellants were  concerned, all of them were held guilty and  convicted under  Sections 148, 449 IPC awarding them various terms  of sentences.  Substantively, Sardara Singh appellant was  con- victed under Section 302 IPC for having caused the death  of Ginder  Singh  by giving him two fatal  gandasa  blows.  The remaining  appellants  were convicted  constructively  under Sections 302/149 IPC. All of them were given life  sentence. Jalaur  Singh  and Ram Singh appellants  were  substantively convicted under Section 302/149 IPC for causing the death of Dhanna  Singh  and the remaining appellants  under  Sections 302/149 IPC, and all were awarded life sentence. Naib  Singh appellant was substantively convicted under Section 307  IPC for  murderously  attacking  Balwant Singh P.W.15,  as  also Hoshiar Singh appellant under Section 307 IPC for murderous- ly  attacking  Sukhminder Singh P.W.16. The  remaining  four appellants in each case were convicted constructively  under both  counts under Sections 307/149 IPC and awarded  various terms  of imprisonment. All the sentences imposed  were  or- dered  to run concurrently. Appropriate orders  of  disposal

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with  respect  to the weapons recovered were passed  by  the learned Sessions Judge.    As  indicated above, the main plea of the  appellants  is that  four accused having been acquitted, despite  the  eye- witnesses  deposing  to  their  participation,  no  credence should  be  given to the prosecution witnesses in  order  to maintain the convictions. The maxim falsus in uno falsus  in omnibus  has been pressed into service. It appears that  the argument  as  such  was not raised before  the  High  Court. Rather  it appears that the High Court’s attention  was  not invited  to the reasoning of the learned Sessions  Judge  in acquitting the four co-accused. It would be apt therefore to scrutinize  that reasoning and see whether  the  prosecution case has lost  credibility on such reasoning.     Thamman  Singh acquitted accused was empty  handed.  The role attributed to him is that he gave an exhortation  chal- lenging Ginder Singh deceased to be ready and that he  would not  be  spared.  He then caught hold of the  long  hair  of Ginder Singh. Thereafter Ginder Singh was as- 582 saulted.  At  the  end of the occurrence, he  is  blamed  of having  taken away the licensed rifle of Ginder  Singh.  The learned  Sessions  Judge  tended to go  in  generalities  in terming that the evidence of exhortation, in the very nature of  things, is a weak piece of evidence and there was  quite often a tendency to implicate some person besides the actual assailant. For this he took the cue from a reported decision of this Court in Jainul Haque v. State of Bihar, AIR 1974 SC 45  as  well as a decision of the Punjab  and  Haryana  High Court to that effect in support. Then without coming to  the specifics  the learned Sessions Judge abruptly came  to  the conclusion that when Thamman Singh acquitted co-accused  had come  to the spot empty handed, the exhortation  appears  to have  been introduced in the prosecution case and  that  the witnesses apparently were out to rope him in. The two  roles attributed  to  him, namely, of catching the  long  hair  of Ginder  Singh and to have carried away the rifle  of  Ginder Singh  went in the same sweep to hold that this was part  of the over doing. The fact that the rifle was being carried by Thamman  Singh at the time of his arrest was  considered  by the  learned Sessions Judge to be abnormal as  otherwise  in the  normal course of events, it was expected to  have  been kept concealed somewhere. His finding thus in his own  words is  "the fact remains that I have not been  satisfied  about the  criminality of Thamman Singh." The only  comment  worth making  is that exhortation is necessarily not a padding  or over doing and has to be viewed in the correct  perspective, in the facts and circumstances of each case. In the  instant case,  besides  the exhortation, there  were  other  factors available  enumerated herein, which could lead  the  learned Sessions Judge to take the view that he has, and that was  a possible view which any cautious Judge could have taken. But that  per  se  does not mean that the  witnesses  which  had deposed  to the participation of the accused at the time  of occurrence have to be dubbed as liars.     With regard to Darshan Singh acquitted accused, the role assigned  to  him is that he gave gandasa blows  to  Bhagwan Kaur P.W.17 from the reverse side and that he took away  the licensed revolver of Mohinder Singh from the room  (baithak) of  the outer house. The learned Sessions Judge opined  that though  the eye witnesses account was that Bhagwan Kaur  had received injuries from the reverse side of the gandasa  from Darshan  Singh, still in the First Information Report  given by Jugraj Singh P.W.14, the use of the weapon was  mentioned but  not  of the manner in which it was  used.  The  learned

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Sessions  Judge took the view that it was normally  expected of Darshan Singh to have given at least one gandasa blow  to someone from the sharp side as well. Besides his taking away the  revolver from Mohinder Singh after the  occurrence  did not  inspire  confidence, like the case  of  Thamman  Singh. Besides if these two weapons namely the rifle and the 583 revolver were available with the complainant party when  the occurrence    started it was expected of them to  have  used those,  which  had not appeared to have been used.  In  that light  the  act  of removing the revolver  was  viewed  with suspicion,  more so, when its recovery was made as a  result of the disclosure statement after a span of eight days  from the  date of arrest of Darshan Singh. The  learned  Sessions Judge  then  concluded with these words, "The  case  against Darshan Singh, accused does not again stand beyond  reasona- ble  doubt". Now such a view of the learned  Sessions  Judge was  a possible view taken on a cautious  approach,  without telling on the veracity of the prosecution witnesses.     So far as Mohinder Singh acquitted accused is concerned, he is said to have used a spear blunt-wise on Raj Kaur.  Raj Kaur  was  not found to have any stab  or  punctured  wound. Further  the  spear was recovered after seven  days  of  the arrest  of Mohinder Singh and that recovery was viewed  with suspicion  due  to the time lag. The version in  F.I.R.  was pressed  into  service about the omission  of  the  specific manner  in which the weapon had been used. The learned  Ses- sions Judge then held, "I would accordingly give the benefit of  doubt  to Mohinder Singh accused and acquit  him."  This finding could be given by the learned Sessions Judge without causing the least dent to the prosecution case. Shifting the grain from the chaff does not mean loss of grain and gain of chaff.  Such  a  view of the learned Judge  cannot  caste  a reflection on the case as a whole.     Lastly  Nirmal Singh acquitted accused was described  in the F.I.R. to be armed with a "pakki banduq" which  descrip- tion the learned Sessions Judge translates as "rifle". Since Nirmal  Singh  is accused to have begun  the  occurrence  by firing at Ginder Singh and Ginder Singh had pellets seen  in his  dead  body, such description of the  weapon  sowed  the seeds  of  suspicion  in the mind of  the  learned  Sessions Judge. It was at best either a case of a mistaken perception or flash impression that Nirmal Singh, undisputably being  a licensee of a rifle, had that rifle. Finding the description of  the weapon being in discord with medical  evidence,  the learned Sessions Judge found the prosecution case not proved against Nirmal Singh acquitted accused. Here even though the learned Judge did not extend the benefit of doubt to  Nirmal Singh in so many words, his approach is an exercise in  that direction. The acquittal of Nirmal Singh too would cause  no affectation to the prosecution case as a whole.     For  the views afore-expressed and the totality  of  the circumstances, we do not think that in the instant case  the maxim  falsus  in uno falsus in omnibus  is  attracted.  The large  number  of participants in the occurrence  would,  at some place or the other, leave a place for entertaining some 584 doubt.  But  here the prosecution case as  a  whole  remains strong  supported  as it is by the independent  evidence  of P.Ws  18 and 19, the neighbours, and the  occurrence  having taken place in the house of the complainant party.     It was next contended that the prosecution has  cocealed its  own guilty part and has not explained the way  the  in- juries were caused to Major Singh Deceased and to Naib Singh appellant. The argument’ is barely to be noticed and reject-

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ed.  Significantly  Jugraj Singh in  the  First  information Report  specifically  mentioned that the injuries  to  Major Singh deceased and Naib Singh appellant were as a result  of the doings of accused persons themselves and in the  circum- stances  narrated above all the eye witnesses have  cogently and  consistently  deposed to that effect. The  findings  of both the courts below are that the occurrence took place  in the  courtyard of the outer house of the complainant  party. Blood  stained earth was collected from four places  therein during investigation. Time of the occurrence being 8.00 a.m. and  the  inmates of the house being busy with  their  daily chores leaves one to pose the question as to why should  the complainant  party anticipate an assault and be  ready  with fire-arms  to put them to use. It does not stand  to  reason that  the  complainant  party having  licensed  weapons,  if anticipating  an assault, to hhave not kept the  same  ready for  use. The fact that these licensed weapons of  the  com- plainant  party  are not shown to have been used  by  itself goes  a long way to establish that the injuries received  by Major Singh deceased and Naib Singh appellant were  acciden- tal and suffered in the manner as suggested by the  prosecu- tion. On this score also we remain unconvinced of the  argu- ment.     Having  examined the prosecution case as finally  estab- lished  at the level of the High Court and having  seen  the reasoning  of  the Court of Session in acquitting  the  four accused,  and also for the reasons set out above, we  go  to hold  the appeal to be devoid of merit and accordingly  dis- miss the same. The appellants are on bail. They are required to surrender to their bail bonds forthwith-. R.P.                                            Appeal  dis- missed. 585