PETITIONER:
AMRIK SINGH
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT17/12/1993
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
SINGH N.P. (J)
CITATION:
1994 SCC (1) 563 JT 1993 Supl. 452
1993 SCALE (4)673
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
DR ANAND, J.- These two appeals arise out of an occurrence
which took place on October 31, 1976, resulting in the
deaths of Satveer and Lal Chand and injuries to Trilok Kumar
and Bal Chand and are being disposed of by this common
judgment.
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2.Satnam Singh, Mohar Singh, Pritam Singh, Atrik Singh,
Jagdish, Harbans, Amrik Singh and Chetan were arrayed as
accused persons in respect of that occurrence. Pritam
Singh, Harbans, Atrik Singh and Jagdish were committed to
stand their trial by an order of the Judicial Magistrate
dated January 25, 1977, while Mohar Singh and Satnam Singh
were committed to stand their trial by a separate order.
However, both the cases were consolidated vide order dated
August 19, 1977. Since Amrik Singh and Chetan were
absconding, they were not tried along with the other six
accused persons. Subsequently Amrik Singh was also
apprehended and was committed to stand his trial before the
learned Sessions Judge, Jhalawar, in Sessions Case No. 63 of
1979. Chetan accused is still absconding.
3.In the first consolidated trial, the trial court
accepted the evidence of alibi of Pritam Singh, Atrik Singh,
Jagdish and Harbans and acquitted them. Satnam Singh and
Mohar Singh were also acquitted on being granted the benefit
of doubt. Thus, all the six accused in the consolidated
trial were acquitted by the trial court. The State of
Rajasthan filed criminal appeal against their acquittal.
The High Court vide judgment dated December 7, 1984
dismissed the appeal filed by the State as against Pritam
Singh, Atrik Singh, Jagdish and Harbans but set aside the
order of acquittal made against Satnam Singh and Mohar
Singh. They were both found guilty of causing murder of
Satveer and Lal Chand and for causing injuries to Trilok
Kumar and Bal Chand. They were convicted for an offence
under Sections 302/34 IPC and sentenced to imprisonment for
life and to pay a fine of Rs 1000 and in default of payment
of fine to undergo rigorous imprisonment for one year each.
They were also convicted for an offence under Sections
307/34 IPC and sentenced to seven years’ rigorous
imprisonment and to pay a fine of Rs 1000 and in default of
payment of fine to undergo rigorous imprisonment for one
year. The substantive sentences were directed to run
concurrently. They have filed Criminal Appeal No. 232 of
1985, by special leave to question their conviction and
sentence.
4.In Sessions Case No. 63 of 1979 the learned Sessions
Judge, Jhalawar, convicted Amrik Singh for an offence under
Sections 302/149 IPC and sentenced him to imprisonment for
life and to pay a fine of Rs 1000 and in default of payment
of fine to undergo rigorous imprisonment for one year. He
was also convicted for an offence under Sections 307/149 IPC
and sentenced to seven years’ rigorous imprisonment and to
pay fine of Rs 1000 and in default of payment of fine to
undergo rigorous imprisonment for one year. Conviction was
also recorded against him for an offence under Section 148
IPC and he was sentenced to two years’ rigorous
imprisonment. The appeal filed by Amrik Singh against his
conviction and sentences in the High Court was dismissed by
the Division Bench vide judgment dated April 27, 1983 and
his conviction and sentences were upheld. He has filed
Criminal Appeal No. 859 of 1985 challenging his conviction
and sentence.
5.The State has not filed any appeal against the
acquittal of Pritam Singh,Atrik Singh, Jagdish and
Harbans. Though, the incident in both the
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appeals is the same, we shall first notice the prosecution
case and the arguments in the appeal filed by Amrik Singh
(Crl. A. No. 859 of 1985).
6.On October 31, 1976 Satveer (deceased) also known as
Bhai Sahab had gone to Mela ground at Bhawani Mandi to play
hockey along with Trilok Kumar (PW 2), Bal Chand (PW 3) and
Lal Chand (deceased). At about 6.15 p.m. all four of them
were returning in the station-wagon bearing registration No.
RJO 1057 belonging to Satveer (deceased). Trilok Kumar (PW
2) was driving the station-wagon while Satveer was sitting
by his side in the front seat. Bal Chand and Lal Chand were
sitting in the back seats. Hardly had the station-wagon
covered a distance of about one furlong from the playground
and reached near the sawing machine of Pritam Singh, all the
eight accused named in the earlier part of this judgment
emerged and started firing at them indiscriminately. By the
first shot the left tore of the rear side of the station-
wagon burst bringing the vehicle to a halt. The accused
persons are alleged to have thereupon surrounded the vehicle
and started firing. Trilok Kumar managed to get down from
the station-wagon and to save his life made an attempt to
run away but was shot at in his back and hip while still
near the bonnet of the station-wagon. Trilok Kumar rushed
to the nearby dispensary of Dr Shanti Lal (PW 1) in that
injured condition and told him that he and Satveer Bhai had
been shot at. Seeing his condition, Dr Shanti Lal
instructed his compounder, Babu Khan (PW 4) to take Trilok
Kumar to the government dispensary and accordingly Babu Khan
took Trilok Kumar injured on his motorcycle to the
government dispensary Bhawani Mandi where he was examined by
Dr Jagdish Kumar Arora (PW 20). At the time when Trilok
Kumar had reached the dispensary of Dr Shanti Lal (PW 1),
Naval Kishore (PW 5) was also present there and he informed
the Police Station Bhawani Mandi on telephone at about 6.20
p.m. that somebody had fired on Satveer. On this telephonic
information, Shri Ronakati (PW 16) in-charge of the police
station along with ASI Mohan Singh (PW 15) rushed to the
spot and found Satveer and Lal Chand lying unconscious
inside the station-wagon. They took charge of the dead
bodies. Dr Arora found the condition of Trilok Kumar to be
serious and therefore recorded his dying declaration (Ex.
P-1) at 6.50 p.m. In the meantime, the SHO brought the dead
bodies of Satveer and Lal Chand along with the injured Bal
Chand (PW 3) also to the government dispensary where Trilok
Kumar was already lying in a serious condition. On the
advice of Dr Arora, Trilok Kumar was removed to Jhalawar
Hospital. At the Jhalawar Hospital, a doctor examined
Trilok Kumar and got his X-rays taken. The condition of
Trilok Kumar was deteriorating. A magistrate was requested
to record the dying declaration of Trilok Kumar and
accordingly Ex. P-2 was recorded by the magistrate at the
hospital. Trilok Kumar was, thereafter, referred to Kota
Hospital where he was operated upon and a bullet was taken
out from his hip and back side. He remained in the Kota
Hospital for more than a month. The blood stained clothes
of the injured were seized by the police at the Kota
Hospital during the course of investigation. After
investigation was
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completed, challan was filed and Amrik Singh on being
committed to the Sessions Court was put on trial.
7.The prosecution examined various witnesses to connect
Amrik Singh with the crime. Since both the trial court and
the High Court have dealt with the evidence of the witnesses
in extenso and have reproduced the same, we need not refer
to that evidence except to the extent necessary while
dealing with the submissions made by learned counsel for the
appellant-Amrik Singh.
8.Mr Sushil Kumar, learned counsel appearing for the
appellant, firstly, submitted that Trilok Kumar who was
stated to be the sole eyewitness could not be relied upon
inasmuch as he did not disclose either to Dr Shanti Lal (PW
1) or to Babu Khan (PW 4) the names of all the accused
persons at the earliest opportunity. According to learned
counsel, though the cryptic telephonic information given to
the police by Naval Kishore (PW 5) may not constitute the
FIR the failure of Trilok Kumar to disclose the names of the
alleged assailants to Naval Kishore would affect the
credibility of the witness. It is submitted that the
statement of Trilok Kumar recorded by Dr Arora (Ex. P-1)
which is the FIR in the case could not be relied upon, as
that document appears to have come into existence after
deliberations and at the instance of Dharamveer, who was
interested in getting a false case against Amrik Singh and
others foisted to settle his earlier scores. We are afraid
we cannot agree. Trilok Kumar (PW 2), sole eyewitness was
himself injured during the occurrence. He had not only seen
the accused persons before reaching the place of occurrence
and pointed them out to Satveer (deceased) but had also
identified them when they surrounded the vehicle and started
indiscriminate firing. He had rushed to the dispensary of
Dr Shanti Lal (PW 1) in an injured condition and told him
that Satveer and he had been fired upon. In that injured
condition, it could not be expected that Dr Shanti Lal would
detain Trilok Kumar to get any other information from him as
his natural anxiety would be to send him for medical aid and
for that reason Babu Khan (PW 4) was told to take Trilok
Kumar on his motorcycle to the government dispensary. There
is nothing on the record to indicate that Dharamveer had in
any way influenced Trilok Kumar to falsely implicate the
accused persons in his statement (Ex. P-1) recorded by Dr
Arora. Indeed Dharamveer being the brother of the deceased
had reached the hospital and was present near Trilok Kumar
(PW 2) but no suggestion even was made to Dr Arora that the
statement (Ex. P- 1) given by Trilok Kumar (PW 2) was not a
voluntary one but a statement given on the tutoring of
Dharamveer. In the normal course of human conduct, no
victim would leave out the real culprits and falsely
implicate innocent persons. Trilok Kumar (PW 2) was in a
critical condition. He had no enmity with the accused to
falsely involve them in such a serious case. A cursory look
at Ex. P- 1, the statement of Trilok Kumar (PW 2) as
recorded by Dr Arora, shows that it has a ring of truth in
it and is a voluntary statement. In that statement the
names of all the accused persons have been disclosed, The
place of occurrence and manner of occurrence have been
indicated. The time of occurrence and the weapons
568
used by the assailants have been stated. Nothing more could
be expected from Trilok Kumar (PW 2) in that injured
condition to be said in that statement. We are unable to
agree with Mr Sushil Kumar that the nondisclosure of the
names of all the assailants to Dr Shanti Lal, Naval Kishore
or Babu Khan (PWs) would detract from the reliability of Ex.
P-1. We have carefully perused the statement of Trilok
Kumar (PW 2). His evidence has neither been shattered in
the cross-examinations nor has any inconsistency been
pointed out in his testimony which may effect its
creditworthiness. His testimony has impressed us and we
find him to be a reliable witness who can be trusted upon in
support of the prosecution case. We find that the testimony
of Trilok Kumar (PW 2) suffers from no infirmity whatsoever.
Even though the statement of Trilok Kumar as recorded at the
hospital (Ex. P-2) cannot be treated as a dying
declaration, learned counsel for the appellant was unable to
point out any infirmity or inconsistency in Ex. P-2 either
which could in any way cast any doubt on the testimony of
Trilok Kumar (PW 2), the driver of the station-wagon of
Satveer deceased on the fateful evening, when the appellant
along with others opened fire causing the death of Satveer
and Lal Chand and injuries to Trilok Kumar and Bal Chand.
It is settled law that evidence has to be weighed and not
counted. The testimony of a sole eyewitness, whose
testimony suffers from no infirmity whatsoever, can by
itself form the basis for conviction. We have found Trilok
Kumar (PW 2) to be a highly reliable witness whose testimony
suffers from no blemish at all. His testimony has also
received corroboration from the medical evidence and other
evidence.
9.The prosecution placed strong reliance during the trial
of Amrik Singh on his absconding. Indeed absconding by
itself may not be of any conclusive evidentiary value but it
is a circumstance which cannot be ignored while considering
other evidence connecting the accused with the crime. Where
the other evidence is convincing and reliable, absconding
assumes some importance. Amrik Singh was named at the
earliest opportunity as one of the assailants in Ex. P-1.
He absconded from October 31, 1976, the date of the
occurrence, and surrendered only on May 3, 1979. It may be
a coincidence but is a rather curious one, that he
surrendered only after the learned Sessions Judge had
acquitted all the six co-accused in Sessions Case No. 33 of
1977 vide judgment dated August 4, 1978. No explanation,
much less a reasonable one, has been offered by Amrik Singh
for his long absence from October 31, 1976 to May 3, 1979.
Both the trial court and the High Court were, therefore,
quite justified in taking note of that circumstance while
considering the guilt of Amrik Singh and using the same
against him.
10.Learned counsel for the appellant then argued that
since Pritam Singh, Atrik Singh, Jagdish and Harbans had
been acquitted in the connected case by the Sessions Court
and their acquittal was upheld by the High Court, it would
not be safe to convict Amrik Singh on the basis of the
prosecution evidence which had implicated the acquitted co-
accused also and which evidence had not been believed. The
argument does not appeal to us. Falsus in uno falsus in
omnibus has never been accepted either as a rule of law or
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evidence. The High Court was aware of the acquittal of the
co-accused and has after considering the evidence
independently confirmed the order of the learned Sessions
Judge convicting appellant Amrik Singh. We find that the
appreciation of evidence by both the courts is sound and
proper. We agree with the reasoning of the High Court in
holding that the prosecution has established the case
against appellant Amrik Singh beyond a reasonable doubt. In
the established facts and circumstances of the case, we
however, alter the conviction of Amrik Singh from the
offence under Sections 302/149 IPC to one under Sections
302/34 IPC and sentence him to suffer imprisonment for life
and to pay a fine of Rs 1.000 and in default of payment of
fine to undergo rigorous imprisonment for one year. We also
convict him for the offence under Sections 307/34 IPC
(instead of under Sections 307/149 IPC) and sentence him to
seven years’ rigorous imprisonment and to pay a fine of Rs
1000 and in default of payment of fine to undergo one year
rigorous imprisonment. His conviction and sentence for the
offence under Section 148 IPC is maintained.
11.With the aforesaid modification in the conviction the
appeal filed by Amrik Singh fails and is hereby dismissed.
12.Coming now to the appeal filed by Satnam Singh and
Mohar Singh, as already noticed, both these convicts along
with Pritam Singh, Atrik Singh, Jagdish and Harbans were
acquitted by the learned Sessions Judge. It was on an
appeal filed by the State of Rajasthan, that while the
acquittal of Pritam Singh, Atrik Singh, Jagdish and Harbans
was upheld that of Satnam Singh and Mohar Singh was set
aside and they were convicted and sentenced for offences
under Sections 302/34 IPC and 307/34 IPC by the High Court.
13.The prosecution story is the same as has been noticed
in the case of Amfik Singh in an earlier part of this
judgment and needs no repetition. Mr Lalit, the learned
senior counsel appearing for the appellants, however,
assailed the conviction of Satnam Singh and Mohar Singh as
recorded by the High Court on various grounds and we shall
presently deal with the same.
14.According to Mr Lalit, the non-disclosure of occurrence
by Trilok Kumar to anyone prior to the recording of his
statement Ex. P- 1 renders his testimony doubtful. We have
already dealt with and rejected a similar contention raised
on behalf of Amrik Singh and those reasons hold equally good
for repelling the submission made by Mr Lalit also.
Emphasis was laid by Mr Lalit on the testimony of DW 6 Satar
Mohd., who had stated that he resides at Bhawani Mandi, on
the road going to Mela ground, and that he was present on
December 31, 1976 at about 6.00 p.m. at a distance of about
35 feet from the saw mill of Pritam Singh, when he found
that the jeep of Satveer deceased was fired upon by six or
seven persons and that the accused were not amongst those
persons. He, of course, did not know the names of any of
the persons who resorted to firing but went on to say that
they were wearing dhoties. In our opinion, the evidence of
this witness does not at all damage the prosecution case.
His testimony on the other hand, to an extent, lends
credence to the prosecution case both as regards the time,
the place and
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the manner of occurrence. This witness also did not
disclose to anyone, even after knowing that accused persons
had been named, that he had seen the occurrence and that
none of the accused persons were involved in the same. His
negative evidence does not cast any doubt, much less a
reasonable doubt, on the authenticity of the prosecution
evidence. Mr Lalit rightly did not refer to, much less
place any reliance on the testimony of other defence
witnesses produced at the trial by the accused persons.
15.From the evidence on the record it is established that
Trilok Kumar (PW 2) knew all the accused before the date of
the occurrence. He had identified them as the assailants in
his statement Ex. P-1 recorded at a time when his condition
was critical. The argument that Dharamveer had influenced
Trilok Kumar to falsely name the accused deserves notice
only to be rejected and there is nothing on the record to
support that theory, which we have also rejected while
dealing with the case of Amrik Singh. The reasoning given
therefor applies to the case of these two appellants also.
16.Mr Lalit lastly argued that the reasoning of the Sessions
Judge was not so preserve (sic perverse) as to warrant being
upset by the High Court in an appeal against acquittal. The
Division Bench of the High Court has not only dealt with and
reproduced the evidence in extenso but we find that the
appreciation of evidence and its consideration by the High
Court is perfectly sound insofar as the conviction of the
two appellants is concerned though we have some reservations
in accepting the genuineness of the alibi pleaded by Pritam
Singh, Atrik Singh, Jagdish and Harbans Singh. However,
since no appeal has been filed against their acquittal in
this Court, their acquittal may not be interfered with at
this late stage, because we do not think it proper to reopen
the case by issuing fresh notices to the acquitted co-
accused for the occurrence which took place as early as in
1976 to reconsider their acquittal as recorded by the
Sessions Court and upheld by the High Court in 1984.
17.The jurisdiction and obligation of the High Court to
reappropriating the evidenceis identical in case involving
acquittal and conviction and all that is requiredof the
High Court while dealing with an appeal against acquittal is
that it shall take into consideration and be alive to the
factors which influenced the trial court to record an order
of acquittal. In the present case the High Court has dealt
with the case keeping in view these settled principles and
has analyzed and reappropriation the entire evidence with
great care and caution. The High Court while upholding the
acquittal of the four co-accused found sufficient, reliable
and clinching evidence to convict Mohar Singh and Satnam
Singh. Dealing with the reasoning given by the learned
Sessions Judge, the High Court observed:
“The question now remains regarding the two
accused persons Mohar Singh and Satnam Singh.
The main argument given by the learned
Sessions Judge for disbelieving the evidence
of Trilok Kumar PW 1 was that when his
evidence is discarded with regard to the four
accused persons, his evidence should not be
relied upon regarding the remaining two
accused persons also. Suffice it to say, that
for this very
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incident we had examined the evidence of
Trilok Kumar while deciding the D.B. Criminal
Appeal No. 487 of 1980 and in our judgment
dated April 27, 1983, we had held that his
evidence was reliable. We have thoroughly
perused the statement of PW 1 Trilok Kumar
given in the court in the trial of this case
and we have no manner of doubt that he was
driving the car at the relevant time. His
presence at the spot cannot be doubted as he
was injured at the spot and his dying
declarations were also recorded twice. The
bullet was taken out from his body. In the
incident two persons sitting inside the car
namely, Satveer and Lal Chand have died and
Trilok Kumar and Bal Chand also received
injuries. The manner in which the shots were
fired and the persons injured, there can
be no manner of doubt that there were a number
of accused persons, who had fired. Thus,
even if, the four accused persons, viz.
Pritam Singh, Jagdish Kumar, Atrik Singh and
Harbans Singh are given the advantage of
plea of alibi, it is no ground to disbelieve
the evidence of Trilok Kumar so far as Mohar
Singh and Satnam Singh are concerned. The
presence of Trilok Kumar at the scene of
occurrence remains established beyond any
manner of doubt. He had clearly stated that
as soon as his car reached near the sawing
machine of Pritam Singh, then Pritam Singh,
Amrik Singh, Harbans, Chetan, Mohar Singh,
Satnam, Jagdish and Atrik Singh were standing.
As soon as the car reached in front of the
sawing machine all the accused persons fired
at the car. All the accused persons were
armed with 12 bore revolvers. He further
stated that the rear tire of the car burst on
account of the shot and the car had to stop.
The accused persons surrounded the car from
two sides and kept on firing. Trilok Kumar
further stated that as soon as he opened the
gate of the car towards him and tried to run
then Mohar Singh accused fired the shot
which hit on his hip. Thereafter. when he went
in front of the bonnet of the car then Pritam
Singh and Jagdish accused persons fired at
him which struck in his back and side. Then he
narrated the story as to how he reached the
dispensary of Dr Shanti Lal and then was
taken to government dispensary by Babu Khan.
Thus, so far as Trilok is concerned he has
clearly stated that when he had come out
of the car by opening the gate and was trying
to run then Mohar Singh accused had fired
which hit him on his hip. In the cross-
examination also he stated that while
surrounding the car Chetan and Mohar
Singh had come running from the back of the
car and had come on the right side. They
were coming by firing shots. The rest of the
accused persons were towards the left side of
the car where Satveer was siting. In view
of these circumstances, we are clearly of the
opinion that learned trial court was
clearly wrong in not placing reliance on the
statement of Trilok Kumar even with regard to
the two accused persons Mohar Singh and
Satnam Singh.”
18. We agree with the reasoning of the High Court and
learned counsel for the appellant was unable to point
out any flaw in that reasoning. On the basis of the
material on the record particularly the reliable testimony
of
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Trilok Kumar (PW 2), we find that the High Court was
perfectly justified in setting aside the acquittal of the
appellants and convicting and sentencing Mohar Singh and
Satnam Singh for the offences under Sections 302/34 IPC and
307/34 IPC. We do not find any merit in their appeal and
consequently dismiss the same.
19.As a result of the above discussion both the appeals
fail and are dismissed. The appellants who are on bail
shall surrender to their bail bonds and shall be taken into
custody to undergo the remaining period of their sentences.