MANJIT SINGH Vs STATE OF PUNJAB
Bench: DIPAK MISRA,VIKRAMAJIT SEN
Case number: Crl.A. No.-002042-002042 / 2010
Diary number: 23480 / 2009
Advocates: Vs
SATYENDRA KUMAR
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Reportabl e
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2042 OF 2010
Manjit Singh & Anr. … Appellants versus
State of Punjab & Anr. … Respondents
WITH
CRIMINAL APPEAL NOS. 2276-2278 OF 2010
Amarjot Singh … Appellant
Versus
Manjit Singh and others etc.etc. … Respondents
J U D G M E N T
Dipak Misra, J.
The two appellants, namely, Manjit Singh and Paramjit
Singh, were tried along with three others in ST No. 54 of
2001 before the learned Additional Sessions Judge,
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Kapurthala for the offences punishable under Sections 302
and 307 read with Section 34 of the Indian Penal Code (IPC).
2. The facts which are essential to be stated are that
on 8.11.1998 about 12:00 noon Amarjot Singh, the
complainant, PW-1, along with his younger brother,
Jagmohan Singh, the deceased, was going on a tractor
towards Bholath for some domestic work. Jagmohan Singh
was driving the tractor, whereas Amarjot Singh was sitting
on the left mudguard of the tractor. After they reached
village Pandori Arayiyan, they were stopped by a Maruti car
bearing registration no. PB-10-X 7079, driven by Accused No.
1, Manjit Singh, who parked it on the road in front of the
tractor. On seeing the car, Jagmohan Singh, stopped the
tractor in the middle of the road. Manjit Singh, armed with
a .315 bore rifle, Paramjit Singh, father-in-law of Manjit
Singh, armed with .12 bore gun, Jaswinder kaur, sister of
Manjit Singh, and two unknown persons alighted from the
car. One of the unknown persons was also armed with a .12
bore gun. After alighting from the car, Jaswinder Kaur raised
“lalkara” to eliminate both the sons of Rajinderpal Singh,
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PW-2, father of the deceased, so that they would understand
the consequences of contesting the election of Sarpanch
against them. Jagmohan Singh tried to turn the tractor
towards the left side and at that juncture Manjit Singh fired a
gunshot which hit him on the right cheek as a result of which
he fell down from the tractor in the fields. Paramjit Singh
armed with a .12 bore gun had also fired at the two brothers.
Amarjot Singh jumped from the tractor and received an
injury on his right elbow. He saved himself by taking shelter
behind the back wheel of the tractor. In the meantime,
Rajinderpal Singh, PW-2, who was present at his tube-well
motor situate nearby and Didar Singh s/o Joginder Singh,
who was present in his field near the place of occurrence
reached the spot and witnessed the incident. All the accused
fled away from the scene of crime along with their
respective weapons. Jagmohan Singh and Amarjot Singh
were shifted to Civil Hospital, Bholath, in a car and in the
hospital Jagmohan Singh was declared dead.
3. As the prosecution story further unfurls, the
hospital authorities intimated about the death of Jagmohan
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Singh to the concerned police station whereafter the police
party headed by SI, Swaran Singh, PW-5, arrived at the
hospital and the SI recorded the Statement of Amarjot Singh
on the basis of which a formal FIR was registered. The
investigating agency got the post mortem done, prepared
the site plan, collected the blood stained earth, the blood
stained clothes of the deceased, three empty cartridges of .
315 bore rifle and two empty cartridges of .12 bore from the
spot and each item was put in separate sealed parcels on
the basis of separate memorandum prepared and attested
by the witnesses. After taking appropriate steps, accused
persons were apprehended and the Maruti car, used in the
commission of crime, was seized. A-1, Manjit Singh, while in
custody led to recovery of his licenced rifle .315 bore along
with the cartridges and the licence in the iron box in the
residential house of Jasbir Singh of Village Umarpura, one of
his relatives. Similarly Paramjit Singh, A-2, made a
disclosure that .12 bore licenced gun used by him had been
taken by Sukhpal Singh of Kaki Pind. As per his statement a
bag containing the remaining cartridges were kept
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concealed in the iron box under the clothes in his residential
house. On the basis of the said statement, recovery of the
iron box, the lock, the cartridges and the licence were
recovered. On the basis of disclosure statement of Sukhpal
Singh, A-3, who had taken .12 bore gun from Paramjit Singh,
A-2, led to the place of discovery of the weapon hidden
underneath the heap of chaff in the Haveli of Manjit Singh, A-
1. The seized articles were sent to the FSL at Chandigarh.
The investigating agency, after examining the witnesses and
completing the other formalities, placed the charge-sheet
before the learned Magistrate, who, in turn, committed the
matter to the Court of Session.
4. The accused persons pleaded innocence and false
implication due to animosity and on that basis claimed to be
tried.
5. Be it noted, during the trial an application was
moved under Section 319 of the Code of Criminal Procedure,
1973 (for short “the CrPC”) to summon Jaswinder Kaur as an
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accused which was allowed, and during trial she availed the
same plea and claimed to be tried.
6. The prosecution, in order to bring home the
charges against the accused persons, examined 13
witnesses and got marked number of documents. The
principal witnesses are Amarjot Singh, PW-1, the informant,
Rajinderpal Singh, PW-2, father of the deceased, who was
cited as an eye-witness, Dr. J.N. Dutta, PW-3, who had
conducted the post mortem, Swaran Singh, PW-5, the
Investigating Officer, and Dr. Narinderpal Singh, PW-7, who
had examined Amarjot Singh. The rest of the witnesses are
formal witnesses.
7. In their statements under Section 313 of the CrPC
the plea of the accused Manjit Singh and Paramjit Singh was
that they were arrested from their house on 9.11.1998 and
the rifle and gun were also taken into police possession. In
essence, they pleaded innocence and false implication. As
far as Sukhpal Singh, A-3, is concerned, his version was that
he had filed a writ petition against S.S.P. Dinkar Gupta, D.S.P
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Harmail Singh and S.I. Surjit Singh because he was illegally
detained by the police earlier and, therefore, the police had
conducted a raid in his house and falsely implicated him in
the case. He had also stated that Manjit Singh and other
were not known to him. The plea of Jaswinder Kaur was to
the effect that after the death of her husband in 1990, she
was residing at Jalandhar with her daughter and was
suffering from heart ailments and had also suffered a brain
haemorrhage. She also took the plea that on the date of
occurrence she was away at Harnamdasspur to attend the
cremation of a relative. Her further plea was that she had
been falsely implicated on account of dispute relating to
Panchayat election which was contested by her sister-in-law,
wife of Manjit Singh.
8. On the basis of the ocular and documentary
evidence brought on record the trial court found that the
prosecution had been able to prove its case beyond all
reasonable doubt against Manjit Singh, A-1, Paramjit Singh,
A-2, and Sukhpal Singh, A-3, for committing the murder of
Jagmohan Singh on 8.11.1998. He also found them guilty of
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firing at Amarjot Singh with the intention of committing
murder and, accordingly, recorded conviction under Section
302/307 read with Section 34 of the Indian Penal Code (IPC)
and sentenced each of them to undergo rigorous life
imprisonment and to pay a fine of Rs.5000/- with a default
clause under Section 302 IPC and for one year under Section
307 IPC and to pay a fine of Rs.2000/- with the default
clause. It may be noted that Sukhpal Singh was also
separately convicted under Section 307 IPC. The trial court
acquitted all the accused persons of the charges under
Section 148 IPC. As far as Kamal Kumar, A-4 and Jaswinder
Kaur, A-5, are concerned, he recorded an acquittal in respect
of all the charges on the ground that the prosecution had not
been able to bring home the charges against them.
9. Assailing the aforesaid judgment of conviction and
order of sentence Manjit Singh, Paramjit Singh and Sukhpal
Singh preferred Criminal Appeal No. 628-DB of 2001 and
Sukhpal Singh challenged his individual conviction under
Section 307 IPC in Criminal Appeal No. 621-DB of 2001. The
acquittal of the accused persons was challenged by the
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informant Amarjot Singh in Criminal Revision No. 680 of
2002.
10. The High Court, by a common judgment and order
dated 12.5.2009 which is impugned herein, affirmed the
conviction of Manjit Singh and Paramjit Singh. However, as
far as Sukhpal Singh is concerned, taking note of the
material brought on record, doubted his presence at the
scene of occurrence and, accordingly gave him the benefit of
doubt. As he was acquitted in the main appeal, the appeal
preferred by him assailing the conviction under Section 307
IPC was treated to have been rendered infructuous. In view
of the decisions rendered in the appeal the criminal revision,
preferred by Amarjot Singh, the brother of the deceased,
stood dismissed.
11. Questioning the legal propriety of the said
judgment and order Manjit Singh and Paramjit Singh have
preferred Criminal Appeal No. 2042 of 2010 by special leave
and the informant has preferred Criminal Appeal Nos. 2276-
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2278 of 2010 on obtaining permission to challenge the
judgment of acquittal.
12. We have heard Mr. U.U. Lalit, learned senior
counsel for the convicted appellants, Mr. Jayant K. Sud,
learned Additional Advocate General for the State of Punjab,
Mr. S.C. Paul, learned counsel for the informant in his
criminal appeals and Mr. J.P. Dhanda, learned counsel for the
respondent No. 5 in criminal appeal preferred by Amarjot
Singh.
13. Criticizing the appreciation of evidence and the
findings recorded by the learned trial Judge as well as by the
High Court Mr. Lalit, learned senior counsel, has contended
that two crucial witnesses, namely, Didar Singh, an
independent eye witness, who had not only witnessed the
incident but had brought the car in which the deceased was
shifted to the hospital and the site plan was prepared at his
instructions, and Malkiat Singh, who had brought the
deceased to the hospital, have not been examined and their
non-examination creates a grave doubt about the version set
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forth by the prosecution. His further submission is that three
others, namely, Kamal Kumar, Jaswinder Kaur and Sukhpal
Singh were falsely roped in and that supports the plea
advanced by the defence that there had been false
implication of the accused persons in the crime. It is
canvassed by him that the presence of PWs-1 and 2 at the
place of occurrence is extremely doubtful, for according to
the prosecution, seven gunshots were fired but none had hit
the PW-1. That apart, PWs-1 and 2 claimed to have taken
the deceased to the hospital in a condition when the seats of
the car and their clothes were stained with blood, but the
Investigating Officer, PW-5, has categorically deposed that
he did not notice the clothes of PWs-1 and 2 to say that
there were any blood stains on their clothes.
14. The learned senior counsel would submit that their
carrying of the deceased to the hospital is also surrounded
with immense suspicion inasmuch as the doctor who had
conducted the post mortem has clearly stated that it was
Malkiat Singh who had brought the deceased to the hospital
and no document has been brought on record that PWs-1
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and 2, who claimed to be eye-witnesses, had brought the
deceased to the hospital. It is argued that the Investigating
Officer did not find any pellets marks on the tractor and he
did not take into possession the clothes and blood samples
on the car seats for chemical examination, which go a long
way to create a dent in the prosecution story. He has further
emphatically put forth that when the tractor had turned
towards left, it is difficult to discern that the deceased
sustained injury in the right cheek and the person sitting on
the left mudguard did not get affected. It is next submitted
by him that there has been blackening of wounds which
would indicate that the injuries were caused from firing from
a close range but the oral testimonies of PWs-1 and 2
evinces that the accused Manjit Singh had fired from the
distance of one and half “karms”. The last plank of
argument of Mr. Lalit is that the appellant No. 2 could not
have been convicted in aid of Section 34 IPC since he had
not participated in the assault on the deceased, and further
there was no recovery of the alleged .12 bore rifle.
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15. Mr. Jayant K. Sud, learned Additional Advocate
General for the State of Punjab, supporting the judgment of
the High Court, has contended that the reappreciation of the
evidence by the High Court while exercising appellate
jurisdiction, cannot be faulted. The learned counsel would
further submit that the learned trial Judge as well as the High
Court has correctly placed reliance on the testimonies of
PWs-1 and 2 as they are unimpeachable. It is also urged by
him that the corroboration of injury by the medical evidence,
the factum of recovery of weapons and other circumstances
clearly establish the guilt of the accused and hence, the
analysis made by the High Court can really not be flawed.
16. Mr. J.P. Dhanda, learned counsel for the informant,
in support of the appeal preferred by him, contended that
the High Court has fallen into grave error by affirming the
acquittal recorded by the learned trial Judge in respect of
two accused and has further committed serious illegality by
acquitting Sukhpal Singh, A-3, despite the irreproachable
evidence against him. It is submitted by him that the
prosecution has clearly and specifically brought the motive
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into the forefront and despite definite roles being attributed
to each of the accused persons, the learned trial Judge
acquitted the accused persons, namely, Kamal Kumar, A-4,
and Jaswinder Kaur, A-5 and the High Court totally
erroneously gave the stamp of approval to the same.
17. The first submission of Mr. U.U. Lalit is that the
non-examination of two crucial witnesses, namely, Didar
Singh and Malkiat Singh creates a great doubt in the
prosecution version which makes it absolutely incredible. On
a perusal of the material on record it is clear that Didar
Singh had come to the spot along with Rajinderpal Singh,
PW-2, and had arranged a car to take the deceased and the
injured to the hospital and at his instance the site plan was
prepared. As far as Malkiat Singh is concerned, the assertion
is that he had carried the deceased and the injured to the
hospital but the evidence in this regard is extremely sketchy.
Be that as it may, thrust of the matter is whether non-
examination of these two witnesses materially affects the
trustworthiness of the prosecution version or put it
differently whether it really creates a dent in the testimony
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of the other eye witnesses and the surrounding
circumstances on which the prosecution has placed reliance
to bring home the guilt of the accused.
18. In this context, a passage from Masalti v. State
of U.P.1 may fruitfully be reproduced:-
“In the present case, however, we are satisfied that there is no substance in the contention which Mr Sawhney seeks to raise before us. It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bona fide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the court. 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.”
19. In Namdeo v. State of Maharashtra2, it has
been laid down that neither the legislature (Section 134 of
the Evidence Act, 1872) nor the judiciary mandates that
1 AIR 1965 SC 202 2 (2007) 14 SCC 150
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there must be particular number of witnesses to record an
order of conviction against the accused. The legal system in
this country has always laid emphasis on value, weight and
quality of evidence rather than on quantity, multiplicity or
plurality of witnesses.
20. In Bipin Kumar Mondal v. State of W.B.3 the
Court reiterated the principle stating that it is not the
quantity, but the quality that is material. The time-honoured
principle is that evidence has to be weighed and not
counted. The test is whether the evidence has a ring of truth,
is cogent, credible, trustworthy and reliable.
21. In State of H.P. v. Gian Chand4 it has been
ruled that non-examination of a material witness is again not
a mathematical formula for discarding the weight of the
testimony available on record howsoever natural,
trustworthy and convincing it may be. The charge of
withholding a material witness from the court levelled
against the prosecution should be examined in the
3 (2010) 12 SCC 91 4 (2001) 6 SCC 71
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background of the facts and circumstances of each case so
as to find whether the witnesses are available for being
examined in the court and were yet withheld by the
prosecution.
22. In Takhaji Hiraji v. Thakore Kubersing
Chamansing5 the Court has opined that it is true that if a
material witness, who would unfold the genesis of the
incident or an essential part of the prosecution case, not
convincingly brought to fore otherwise, or where there is a
gap or infirmity in the prosecution case which could have
been supplied or made good by examining a witness who
though available is not examined, the prosecution case can
be termed as suffering from a deficiency and withholding of
such a material witness would oblige the court to draw an
adverse inference against the prosecution by holding that if
the witness would have been examined it would not have
supported the prosecution case. On the other hand if already
overwhelming evidence is available and examination of
other witnesses would only be a repetition or duplication of
5 (2001) 6 SCC 145
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the evidence already adduced, non-examination of such
other witnesses may not be material. In such a case the
court ought to scrutinise the worth of the evidence adduced.
The court of facts must ask itself—whether in the facts and
circumstances of the case, it was necessary to examine such
other witness, and if so, whether such witness was available
to be examined and yet was being withheld from the court?
If the answer be positive then only a question of drawing an
adverse inference may arise. If the witnesses already
examined are reliable and the testimony coming from their
mouth is unimpeachable the court can safely act upon it,
uninfluenced by the factum of non-examination of other
witnesses.
23. In Dahari v. State of U.P.6 while discussing
about the non-examination of material witness, the Court
has ruled that when the witness was not the only competent
witness who would have been fully capable of explaining the
factual situation correctly, and the prosecution case stood
fully corroborated by the medical evidence and the
6 (2012) 10 SCC 256
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testimony of other reliable witnesses, no adverse inference
could be drawn against the prosecution. Similar principle
has been reiterated in Harivadan Babubhai Patel v.
State of Gujrat7.
24. From the aforesaid exposition of law, it is quite
clear that it is not the number and quantity, but the quality
that is material. It is the duty of the Court to consider the
trustworthiness of evidence on record which inspires
confidence and the same has to be accepted and acted upon
and in such a situation no adverse inference should be
drawn from the fact of non-examination of other witnesses.
That apart, it is also to be seen whether such non-
examination of a witness would carry the matter further so
as to affect the evidence of other witnesses and if the
evidence of a witness is really not essential to the unfolding
of the prosecution case, it cannot be considered a material
witness (see: State of U.P. v. Iftikhar Khan and others8).
25. In the case at hand we find the plea taken is that it
was Malkiat Singh, who had taken the deceased and injured 7 (2013) 7 SCC 45 8 (1973) 1 SCC 512
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to the hospital and, therefore he is a material witness. The
question that is required to be put whether the evidence of
the said witness is essential to record a conviction or his
non-examination would affect the trustworthiness of PWs-1
and 2 and other witnesses. As we perceive, it can
reasonably be stated that Malkiat Singh is not a material
witness in that sense. As far as Didar Singh is concerned,
tested on the parameters of the authorities referred to
above, if the testimony of other witness inspires confidence,
his non-examination would not create a concavity in the
case of the prosecution. We may state here that the
acceptance of testimonies of PWs-1 and 2, in the case at
hand, would stand on their own and would not depend upon
the version that could have come from Didar Singh. It is so
as he is not the only competent witness who would have
been fully capable of explaining the factual situation
correctly. Quite apart from the above, it is worth noting here
that during the cross-examination of investigating officer,
none of the accused persons had voiced their concerns by
raising any apprehension regarding non-examination of the
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material witnesses. We may repeat that on a studied
scrutiny we find that, in fact, there is no cross-examination in
that regard. Thus, the aforesaid submission of the learned
counsel is not acceptable.
26. The next limb of submission of the learned senior
counsel for the appellant is that on apposite appreciation of
the evidence in entirety it is clearly demonstrable that the
falsehood rings in the statements of all the witnesses.
Bolstering the said aspect, it is urged by him that the
prosecution has falsely implicated three accused persons
including a lady and that shows the extent of falsehood that
has been taken recourse to by the informant, PW-1, and
other witnesses. In essence, it is his proponement that
testimonies of so-called eye-witnesses cannot be regarded
as cogent, reliable and trustworthy.
27. It is well settled in law that unless the entire case
of the prosecution suffers from infirmities, discrepancies and
material contradictions and the prosecution utterly fails to
establish its case, acquittal of some accused persons cannot
be a relevant facet to determine the guilt of other accused
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persons. In Dalbir Singh v. State of Haryana9, a two-
Judge Bench reproduced para 51 from Krishna Mochi and
Others v. State of Bihar10 wherein it has been stated that
the maxim falsus in uno, falsus in omnibus has no
application in India and the witnesses cannot be branded as
liars. The maxim falsus in uno, falsus in omnibus (false in
one thing, false in everything) has not received general
acceptance nor has this maxim come to occupy the status of
rule of law. It is merely a rule of caution. All that it amounts
to is, that in such cases testimony may be disregarded, and
not that it must be disregarded. Thereafter, the Bench
proceeded to state as follows:-
“Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. (See Gurcharan Singh v. State of Punjab11.) The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be
9 (2008) 11 SCC 425 10 (2002) 6 SCC 81 11 AIR 1956 SC 460
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feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sohrab v. State of M.P.12 and Ugar Ahir v. State of Bihar13.)”
28. In Yanob Sheikh alias Gagu v. State of West
Bengal14, after referring to Dalbir Singh (supra) the Court
observed that the acquittal of a co-accused per se is not
sufficient to result in acquittal of the other accused. The
court has to screen the entire evidence and does not extend
the threat of falsity to universal acquittal. The court must
examine the entire prosecution evidence in its correct
perspective before it can conclude the effect of acquittal of
12 (1972) 3SCC 751 13 AIR 1965 SC 277 14 (2013) 6 SCC 428
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one accused on the other in the facts and circumstances of a
given case.
29. In Balraje alias Trimbak v. State of
Maharashtra15 a two-Judge Bench has observed that even
if acquittal is recorded in respect of the co-accused on the
ground that there were exaggerations and embellishments,
yet conviction can be recorded if the evidence is found
cogent, credible and truthful in respect of another accused.
30. Keeping the aforesaid principle in view we are
required to test the acceptability of the evidence on record.
The learned trial Judge has acquitted Jaswinder Kaur on the
ground that she had not contested any election; that she
was not even residing in the village in which the elections
were held; and that she was residing in her own house at
Jalandhar. The allegation in the FIR that she had given
lalkara had not really got support from other witnesses and,
hence, her presence at the spot was doubted. As far as
Kamal Kumar is concerned, in the opinion of the learned trial
Judge he had no concern with the accused persons or the
15 (2010) 6 SCC 673
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deceased as he belongs to Ram Mandi in Jalandhar
Cantonment. The learned trial Judge, in essence, has
extended benefit of doubt to him inasmuch as he had
neither participated in the occurrence nor had he shared the
common intention. The High Court has acquitted Sukhpal
Singh on the ground that he was not named in the FIR and
further he had not carried any weapon. The High Court
opined that he had been implicated because he had filed a
writ petition against the police officers. If the evidence is
scrutinized in proper perspective, it is clear that there has
been some embellishment by the informant and other
witnesses but giving such embroidery to a story would not
make the whole prosecution version untruthful one. It can
be treated to be an exaggeration by the prosecution but the
consequence cannot be regarded as fatal. Therefore, we are
not persuaded to accept the said submission canvassed on
behalf of the appellants.
31. The next contention is that the presence of two
eye-witnesses, namely, PWs-1 and 2, at the scene of
occurrence is gravely doubtful. It has been urged that the
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said two witnesses could not have been present at the spot
as their statement that they had taken the deceased to the
hospital has been belied by the testimony of autopsy
surgeon; their blood stained clothes had not been seized;
and PW-1, who was sitting on the left mudguard of the
tractor, had not received any serious injury despite the
tractor had turned towards the left. To appreciate the said
contention we have bestowed our anxious consideration and
scrutinized the evidence on record. The plea that Malkiat
Singh had alone brought the deceased and the injured to the
hospital cannot be accepted to be correct. PW-8, Dr.
Narender Singh, who had treated Amarjot Singh, had clearly
stated that the deceased was brought dead to the hospital
with the alleged history of gunshot injuries. At that time he
had treated Amarjot Singh. In the cross-examination, he has
clearly deposed that the dead body was brought to the
hospital at 12.40 p.m. and Amarjot Singh came to the
hospital at 12.40 p.m. That apart, it can be said with
certitude that whether Amarjot Singh accompanied or not
really does not affect the prosecution case. As far as non-
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seizure of the blood-stained clothes and blood stains from
the seat of the car are concerned, it does not create a dent
in the prosecution version. In this context, the authority in
State of Rajasthan v. Arjun Singh and others16 can
profitably be referred to. In the said decision the Court has
opined that absence of evidence regarding recovery of used
pellets, bloodstained clothes, etc. cannot be taken or
construed as no such occurrence had taken place. It has
been further observed that when there is ample
unimpeachable ocular evidence and the same has received
corroboration from the medical evidence, even the non-
recovery of weapon does not affect the prosecution case. In
the case at hand it is perceptible that PWs-1 and 2, brother
and father of the deceased, have deposed in a vivid manner
about the culpability of the accused persons in the crime.
The autopsy surgeon, PW-3, has clearly opined that the
deceased had died because of gunshot injuries. The FSL
report, Ext. P-AM/1, states with equal clarity that one
cartridge was fired from left barrel of DBBL gun No. 56088,
16 (2011) 9 SCC 115
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the other cartridge from its right barrel and three cartridges
were fired from the rifle No. AB 97/5473. It is also brought
out in the evidence the gun and the rifle were sent to the
Forensic Science Laboratory in sealed parcels. As per the
report the shots were fired from the weapons sent to the
laboratory. It has been established by cogent evidence that
the weapons belonged to the accused-appellants and
licenses were issued in their favour. Thus, the ocular
testimony of PWs-1 and 2 has received clear corroboration
from the medical evidence as well as from the report of the
FSL.
32. Learned counsel for the appellants has also
submitted that wounds would indicate that the shots were
fired from a close range but the oral testimony is contrary to
the same. That apart, he submits that the person sitting on
the left mudguard would have been affected as the tractor
turned towards the left and, more so, when the deceased
had sustained injury on the right cheek. In our considered
opinion, these kind of discrepancies are bound to occur
when an occurrence of the present nature takes place and
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one cannot expect the witnesses to state with precision.
Needless to emphasise, on these counts the prosecution
version cannot be held to be unbelievable and it cannot be
held that the prosecution has not been able to establish the
charges beyond reasonable doubt. It is because judicial
evaluation of the evidence has to be appropriate regard
being had to the totality of the facts and circumstances of
the case and not on scrutiny in isolation and further the
concept of proof beyond reasonable doubt cannot be made
to appear totally unrealistic. In this context, we may
profitably reproduce a passage from Inder Singh and
another v. The State (Delhi Administration)17: -
“Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal case, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to
17 (1978) 4 SCC 161
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escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human process. Judicial quest for perfect proof often accounts for police presentations of fool-proof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, we must be realistic.”
33. Thus analysed, the submission in this regard
leaves us unimpressed and, accordingly, we repel the same.
34. The last plank of proponement of Mr. Lalit is that
the appellant No. 2 could not have been convicted in aid of
Section 34 IPC since he had not participated in the assault
on the deceased. Apart from participation, he has also
emphasised on non-recovery of alleged .12 bore rifle. On a
perusal of the evidence of PWs 1 and 2 it is perceptible that
Paramjit Singh was named in the FIR and he had
accompanied Manjit Singh, his son-in-law. There has been
seizure of .12 bore rifle which has been proven to have
belonged to Paramjit Singh and the cartridges that have
been recovered from the spot have been proven to have
been fired from the .12 bore rifle that belonged to Paramjit
Singh. There is a distinction in the case of Sukhpal Singh
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and Kamal Kumar on one hand and Paramjit Singh on the
other. Sukhpal Singh was not named in the FIR. There was
a litigation going on between him and the police officers.
Kamal Kumar was not known to any of the witnesses. There
is clear evidence that Paramjit Singh had fired from his .12
bore rifle but it had not hit anyone. From the material
brought on record it is vivid that he had gone along with
Manjit Singh being armed with the weapon. The submission
that is advanced is that he had not participated in the
occurrence and, therefore, it could not be said that he had
shared the common intention. In this context, we may refer
to a three-Judge Bench decision in Shreekantiah Ramayya
Munipalli and another v. State of Bombay18, wherein it
has been ruled thus: -
“.... it is the essence of the section that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the
18 AIR 1955 SC 287
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offence in some way or other at the time the crime is actually being committed. The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered by S. 109, and the stage of commission when the plans are put into effect and carried out. Section 34 is concerned with the latter.
It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long beforehand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation which, of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act.”
[Emphasis supplied]
35. In the case of Iftikhar Khan (supra) another
three-Judge Bench referred to Mahbub Shah v. King
Emperor19 and thereafter reiterated the principles stated in
Pandurang, Tukia and Bhillia v. State of Hyderabad20
wherein it has been stated that :-
“at bottom, it is a question of fact in every case and however similar the circumstances, facts in
19 AIR 1945 PC 118 20 (1955) 1 SCR 1083
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one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time- honoured way, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”.
36. In Tukaram Ganpat Pandare v. State
Maharashtra21 the Court opined thus: -
“Criminal sharing, overt or covert by active presence or by distant direction, making out a certain measure of jointness in the commission of the act is the essence of Section 34.”
37. In Krishnan and another v. State of Kerala22,
Hansaria, J., in his concurring opinion, stated thus: -
“15. Question is whether it is obligatory on the part of the prosecution to establish commission of an overt act to press into service Section 34 of the Penal Code. It is no doubt true that the court likes to know about an overt act to decide whether the person concerned had shared the common intention in question. Question is whether an overt act has always to be established? I am of the view that establishment of an overt act is not a requirement of law to allow Section 34 to operate inasmuch as this section gets attracted when “a criminal act is done by several persons
21 AIR 1974 SC 514 22 (1996) 10 SCC 508
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in furtherance of the common intention of all”. What has to be, therefore, established by the prosecution is that all the persons concerned had shared the common intention. Court’s mind regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. But then, there may be a case where the proved facts would themselves speak of sharing of common intention: res ipso loquitur.”
Be it noted, in the said case one of the accused had not
caused any injury to the deceased.
38. In Surendra Chauhan v. State of M.P.23, the
Court opined that the existence of a common intention can
be inferred from the attending circumstances of the case
and the conduct of the parties. No direct evidence of
common intention is necessary. For the purpose of common
intention even the participation in the commission of the
offence need not be proved in all cases. Thereafter, the
learned Judges proceeded to state that to apply Section 34
IPC apart from the fact that there should be two or more
accused, two factors must be established: (i) common
intention, and (ii) participation of the accused in the
commission of an offence. If a common intention is proved 23 (2000) 4 SCC 110
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but no overt act is attributed to the individual accused,
Section 34 will be attracted as essentially it involves
vicarious liability but if participation of the accused in the
crime is proved and a common intention is absent, Section
34 cannot be invoked. In every case, it is not possible to
have direct evidence of a common intention. It has to be
inferred from the facts and circumstances of each case.
39. Regard being had to the aforesaid principles, we
shall proceed to analyse the fact-situation in the present
case. On a scrutiny of the evidence we find that the
appellant No. 2 had accompanied appellant No. 1 and was
present at the spot; that he had carried a weapon; that it has
been established by the prosecution that the cartridges had
been fired from his gun; and that both the appellants are
closely related. Thus, the cumulative facts would clearly
establish that the appellant No. 2 shared the common
intention with the appellant No. 1. We will be failing in our
duty if we do not notice the authority, namely, Ramashish
Yadav and others v. State of Bihar24, which has been
24 (1999) 8 SCC 555
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commended to us by Mr. Lalit. In the said case, the Court,
after dealing with the applicability of Section 34 IPC, noted
the fact that two accused-appellants caught hold of the
deceased and thereafter, other accused persons came and
assaulted him with ‘gandasa’ on account of which the
deceased died and hence, they could not be roped in with
the aid of Section 34 IPC. In our considered opinion the
discussion in the said judgment has to be confined to the
facts of the said case and cannot be applied as a rule.
40. In view of our aforesaid analysis, the criticism
advanced by Mr. Lalit that the appellant No. 2 could not have
been convicted in aid of Section 34 IPC, is not well founded.
41. Presently, we shall proceed to deal with the appeal
preferred by the informant. We have already noted that the
learned trial Judge has categorically opined that the accused
persons, namely, Kamal Kumar and Jaswinder Kaur, were not
present at the scene of occurrence. Jaswinder Kaur was
arrayed as an accused on the basis of an application
preferred under Section 319 of the Code of Criminal
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Procedure and host of material has been brought on record
to establish the plea of the defence that she had not
contested the election and she was not present at the scene
of occurrence. On a studied scrutiny of the evidence, the
learned trial Judge has given credence to the same. As far
as Kamal Kumar is concerned, he has nothing to do either
with the deceased or the accused persons as he belongs to a
different village and further he had not carried any weapon.
The High Court has acquitted Sukhpal Singh on the
foundation that there was animosity between the police
officers and Sukhpal Singh and he had not carried any
weapon. Thus, the view expressed by the learned trial Judge
in acquitting Jaswinder Kaur and Kumar Kumar and further
the acquittal recorded by the High Court acquitting Sukhpal
Singh is based on cogent reasoning and, in our considered
opinion, it is a plausible view. Needless to emphasise that
once a plausible view has been expressed and there has
been proper appreciation of the evidence on record, the
acquittal does not warrant any interference.
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42. In view of the above premised reasons, all the
appeals are dismissed.
……………….……….J. [Dipak Misra]
……………….……….J. [Vikramajit Sen]
New Delhi; September 13, 2013.