TMI Blog1976 (8) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... uch injustice has been done in a given case depends on the circumstances of the case, and I do not think one could catalogue exhaus- tively all possible circumstances in which it can be said that there has been grave and substantial injustice done in any case. In the appeals before us the findings recorded by the trial court and affirmed by the High Court do not dis- close any such exceptional and special circumstances as would justify the claim made on behalf of the appellants whose appeals we propose to dismiss that there has been a failure of justice in these cases. FAZAL ALI, J.--These two appeals by special leave are directed against the judgment of the Punjab Haryana High Court dated March 10, 1975, upholding the convictions and sentences imposed on the appellants by the Trial Court of Sessions Judge, Gurdaspur. The two appeals arise out of the same judgment and, therefore, will be dealt with by us by one common judgment. Criminal Appeal No. 232 of 1975 has been filed by Smt. Dalbir Kaur @ Bhiro, Puran Singh and Ajit Singh, while Criminal Appeal No. 373 of 1975 has been filed by Dalbir Singh. The Sessions Judge convicted all the appellants under ss. 302/34 I.P.C. and sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court would be taken by this Court as final, unless it is vitiated by any error of law or procedure, by the princi- ples of natural justice, by errors of record, or misreading of evidence, non-consideration of glaring inconsistencies in the evidence which demolish the prosecution case or where the conclusion of the High Court is manifestly perverse and unsupportable and the like. As early as 1950 this Court in Pritam Singh v. The State [19501 S.C.R. 453.speaking through Fazal Ali, J., (as he then was) observed as follows: The obvious reply to all these arguments advanced by the learned counsel for the appellant, is that this Court is not an ordinary Court of criminal appeal and will not, generally speaking allow. facts to be reopened, especially when two Courts agree in their conclusion in regard to them and when the conclusions of fact which are chal- lenged are dependent on the credibility of witness- es' who have been believed by the trial Court which had the advantage of seeing them and hearing their evidence. In arguing the appeal, Mr. Sethi proceeded on the assumption that once an appeal had been admitted by special leave, the entire case was at large and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.J., speaking for the Court, where it was observed thus: Unless it is shown that exceptional and special circumstances exist that substantial and grave injusice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court does not exercise its overriding powers under article 136(1) of the Constitution and the circumstance that because the appeal, has been admitted by special leave does not entitle the appellant to open out the whole case and contest all the findings of fact and raise every point which could be raised in the High Court. Even at the final hearing only those points can ,be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for. In Khacheru Singh v. State of Uttar Pradesh A.I.R. [1956] S.C. 546.it was pointed out that this Court does not interfere with the findings of fact arrived at by the Courts below, unless something substantial has been shown to persuade this Court to go behind the findings of fact. Imam, J. who spoke for the Court observed as follows: In an appeal by way of special leave this Court usually does not interfere with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imony of an accom- plice without first considering the question whether the accomplice is a reliable witness. Another circumstance is where the conclusion reached by the Courts below is so patently opposed to well established principles of judicial ap- proach, that it can be characterised as wholly unjustified or perverse. The only difference between the two views was that while the majority view was that except for the principles mentioned above the Supreme Court could never interfere with the concurrent findings of fact in a criminal appeal, the minority view agreed with the principles but it held that in view of special circumstances as pointed out in the observations quoted above the Court could inter- fere. At any rate, according to both the views the ratio is that this Court would not normally inter- fere with the concurrent findings of fact, unless there are special circumstances justifying inter- ference. In Piara Singh v. State of Punjab [1969] 1 S.C.C. 379. this Court refused to interfere because it thought that the points involved related to pure appreciation of evidence and no error of law was at all committed and observed as follows: The High Court has exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclined to take a different view it would not be a fit case for interference. Another important principle that has been enunciat- ed by this Court is that even where the prosecu- tion case consists of an admixture of truth and falsehood it is the duty of the Court to sift truth from falsehood, to separate the grain from the chaff instead of taking the easy course of reject- ing the entire prosecution case in view of some discrepancy here or there. If, after applying these legal principles, the Court finds that truth and falsehood are so inextricably mixed together that it is not possible to sift truth from false- hood the Court would be justified in rejecting the prosecution case. In Abdul Gani v. State of Madhya Pradesh A.I.R. 1954S.C.31 this Court observed as follows: The learned Sessions Judge was undoubtedly in error when he said that it was impossible to find out from the state of the prosecution evi- dence with any amount of certainty who among the accused persons participated in the offence and that it would be a pure gamble to. convict any of the accused. He made no effort to disengage the truth from the falsehood and to sift the grain from the chaff but took an easy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence: It is very difficult to lay down a rule of universal appli- cation but the principles mentioned above and those adum- brated in the authorities of this Court cited supra provide sufficient guidelines for this Court to decide criminal appeals by special leave. Thus in a criminal appeal by special leave, this Court at the hearing examines the evi- dence and the judgment of the High Court with the limited purpose of determining whether or not the High Court has followed the principles enunciated above. Where the Court finds that the High Court has committed no violation of the various principles laid down by this Court and has made a correct approach and has not ignored or overlooked striking features in the evidence which demolish the prosecution case, the findings of fact arrived at by the High Court on an appreciation of the evidence in the circumstances of the case would not be disturbed. Much time, energy and expense could be saved if the principles enunciated above are strictly adhered to by counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 31st July, 1973 at about 1 A.M. Jaswant Kaur and her husband Amir Singh were lying on their cots in the verandah and Shiv Kaur was also sleeping in front of the verandah while Ajaib Singh was lying on a cot near the buffalo in the court-yard. As the newly born child of Jaswant Kaur was not well both Jaswant Kaur and her mother Shiv Kaur were awake t0 nurse him. At that time electric bulb was burning in the court-yard because an electric connection had been recently taken from a neighbour in view of the illness of the child of Jaswant Kaur. Near about 1 A.M. Jaswant Kaur and Shiv Kaur heard the noise of foot-steps and they saw Dalbir Singh, Ajit Singh and Puran Singh armed with kirpans while Dalbir Kaur @ Bhiro armed with a datar standing by the side of the cot of Ajaib Singh. Dalbir Singh had an altercation with his father Ajaib Singh and expressed his dis-satisfaction over the partition of the lands and asked his father and brother to get ready to meet the consequences and to call anybody for help if they liked. Thereupon Dalbir Singh gave a kirpan blow on the left jaw of Ajaib Singh and Bhiro gave a datar blow on his right shoulder, while Ajit Singh and Puran Singh gave kirp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho have given a complete narrative of the prosecution case as indicated above. These two eye witnesses have been de- scribed as interested witnesses by counsel for the appel- lants but we do not subscribe to this view. There can be no doubt that having regard to the fact that the incident took place at mid-night inside the house of Ajaib Singh, the only natural witnesses who could be present to see the assault would be Jaswant Kaur and her mother Shiv Kaur. No outsider can be expected to have come at that time because the attack by the appellants was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. Such is not the case here. In the instant case there is absolutely no evidence to indicate that either Jaswant Kaur or Shiv Kaur bore any animus against the accused. This Court had an occasion to decide as to whether a relative could be treated as an interested witness. In Dalip Singh and others v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be interested witnesses who would falsely mention the names of other persons as responsible for causing injuries to the deceased. Thus in this case also the Court held that the witnesses concerned even though rela- tives could not be considered to be interested or partisan. This Court observed at p. 702 thus: It has been held by this Court that the mere fact that a witness is a relation of a victim is not sufficient to discard his testimony. To the same effect are the observations by this Court in State of Punjab v. Jagir Singh Ors. [1974] 3 S.C.C. 277 For these reasons, therefore, I am unable to reject the evidence of P.Ws. 3 and 4 merely on the ground that they were relatives of the deceased. I have myself carefully gone through the entire evidence of these two witnesses and I find that shorn of a few embellishments here and there their testimony has a ring of truth a colour of consistency and a sense of straightforwardness as a result of which their evidence inspires great confidence. They have given a graphic description of what they had seen. In these circum- stances, therefore, I do not see any reason to discard the assessment of the Courts below regarding these tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burning at the time of occurrence and non- examination of Mohinder Singh would not outweigh the evi- dence given by the eye witnesses corroborated as it is by the evidence of P. Ws. 5 6 and the documents Exts. P.N. and P.M. The prosecution has further led the evidence of recovery of the weapons from all the appellants at their instance which are Exts. P.Q., P.S., P.T., and P.U. The weapons recovered were bloodstained and they were recovered at the instance of the appellants. Both the Courts below have accepted this evidence and this was sought to be repelled by learned counsel for the appellants on the ground that no independent witness as such as has been examined to prove the recoveries. It would appear that so far as Ext. P.Q. 3--1104SCI/76 the recovery of kirpan from Pooran Singh is concerned it has been proved by Darshan Singh brother of Jaswant Kaur. We find that Jaswant Kaur was not an interested witness be- cause she was the wife of one of the deceased. Her brother Darshan Singh's testimony does not suffer from any infirmity and he must be considered to be an independent witness because he bears no animus whatsoever against any of the appellants. Darshan Singh was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons by the appellants who happened to be the son of one of the deceased and brother of another. It was submitted that in case of patricide the prosecution must prove strong and compelling motive before the murder can be accepted. The learned Sessions Judge has accepted the evi- dence of motive, namely, the fact that the appellant Dalbir Singh was wholly dissatisfied with the partition of proper- ties and particularly because his father Ajaib Singh used to give the produce of the land to his brother Amir Singh. The Sessions Judge on the question of motive found as follows: This was the main bone of contention between Ajaib Singh and Dalbir Singh accused. Dalbir Singh accused wanted to have three more killas of land from Ajaib Singh but the latter refused to part with his land. Although as discussed above, the circumstances of the case do point out that the accused had a motive to commit the crime, yet even if it is assumed for the sake of argument that the prosecution has not been able to prove by good evidence that the. accused had any impelling motive to commit the crime, it would not render any help to them. The High Court also confirmed this finding and held that even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine material witnesses a reflection is cast on the fairness of the trial so as to vitiate the convic- tion of the appellants. Strong reliance was placed by counsel for the appellants on the decision of this Court in Habeeb Mohammad v. The State of Hyderabad. [1954] S.C.R. 475. In that case what had happened was that the only witness examined to prove the firing by the accused was a police Jamadar whereas a very senior police officer who is said to be present at the time when the accused gave orders for firing was not produced and what was more was that no explanation for the omission to examine this witness was given. In view of these circumstances and the other infirmities ap- pearing in that case generally, this Court held that such an omission to produce a material witness was sufficient to throw doubt on the prosecution case. In this connection this Court observed thus: In this situation it seems to us that Biabani who was a top-ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth .....In our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence was fully corroborated by the medical evidence and the evidence of the recovery of the weapons at the instance of the appellants themselves. In these circumstances, therefore, the principles laid down in Habeeb Mohamed's case (supra) will not apply to this case at all, Further more in Habeeb Mohamed's case there was a serious violation of procedure because the Trial Court refused to summon those witnesses who were cited by the defence which was by itself sufficient to vitiate the trial. It was in view of these circumstances that this Court was not prepared to convict the accused. In these circumstances, therefore, the case relied upon by the learned counsel for the appellants has no application to the present case. Reliance was also placed on a decision of this Court in Sahaj Ram State of U.P. A.I:R. 1973 s.c. 618 where this Court observed as follows: There is a clear finding of the Sessions Court to the effect that P.Ws. 1 to 3 had a very strong motive to falsely 'implicate the four ac- cused forming group II. In view of these circum- stances, the High Court's consideration of the evidence of P.Ws. 1 to 3 is faulty and erroneous. The conviction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also relied upon by counsel for the appellants on this point. In that case the Court observed as follows: It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as a general rule that every witness must be examined even though his evidence may not be very material or even if it is known that he has been won over or terrorised. In such a case, it is always open to the defence to examine such witnesses as their witnesses and the court can also call such witnesses in the box in the interest of justice under s. 540 Cr. P.C. From the observations made by this Court it is quite clear that there no duty on the prosecution to examine witnesses who might have been gained over by the accused and even if those witnesses are not produced by the prosecution there is nothing to stop the accused from applying to the Court for examining such witnesses under s. 540 of the Code of Crimi- nal Procedure. No such application was ever made by the appellants either before the Trial Court or the High Court but for the first time it was made in this Court and that to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F.I.R. at the police station at 9 A.M. the police station being at a distance of six miles from village Marfar Kalan where the occurrence took place. In view of these facts it is not reasonable to except the informant to have reached the police station earlier than 9 A.M. It was impossible to expect from the informant who was a woman to rush to the police station at night and take the risk of being killed by the accused who had stayed on in their part of the house even after the occurrence and had left the house only in the morning. It was, however, suggested that there was delay in the despatch of the F.I.R. to the Magistrate. This matter has been clearly explained by the Sub-Inspector who after making the necessary entries arrived at the spot and sent Constable Prem Chand P.W. 15 to take the F.I.R. to the Magistrate. P.W. 15 Prem Chand has deposed that he had gone to the Magistrate's Court but as the Magistrate was not in his seat he proceeded to Gurdaspur to give a copy of the F.I.R. to Superindendent of Police and after his return he delivered the F.I.R. to the Magistrate at 3 P.M. Both the Courts below have believed the evidence of P.W. 15 which is supported by the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the electric bulb burning, the witnesses were bound to observe the weapons with which the accused were armed, the main parts of the body where the blows were given and the like. As the accused were fully known to the informant Jaswant Kaur, there is nothing unusual if she gave the names and parentage of all the accused persons in the F.I.R. In these circumstances, the comment of the learned counsel for the appellants is without sub- stance and must be overruled. Lastly Mr. Frank Anthony submitted that. the case of Ajit Singh deserves special consideration, particularly in view of the fact that one of the eye-witnesses Shiv Kaur has failed to identify him at the test identification parade. It was further submitted that if Ajit Singh is acquitted, then the whole case would fall to the ground, because if the witnesses could implicate one innocent person there is no guarantee that the others were not equally innocent. While I agree with the first part of the statement that here is some room for giving benefit of doubt to Ajit Singh, I do not agree with the other part of the argument that merely because Ajit Singh is given benefit of doubt, the others also should be acquitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Batala but at Gurdaspur so that he might not be got identified by the police to the witnesses. The Magistrate passed an order that the accused Ajit Singh should be identified at the test identification parade but unfortunately while Shiv Kaur was asked to identify the appellant Ajit Singh at the test identification parade, Jaswant Kaur was not asked to identify him there. It is true that Jaswant Kaur has stated in her evidence that she knew the appellant Ajit Singh as being the cousin of Mst. Bhiro the wife of her husband's eider brother. He used to come to the house off and on. It is, therefore, clear that Jaswant Kaur herself might have caught only a glimpse of the appellant Ajit Singh when he came to meet Mst. Bhiro who admittedly lived in a separate portion of the house and, therefore, the witness Jaswant Kaur could-not have known the appellant Ajit Singh very well. At any rate, either Ajit Singh was known to the witness Jaswant Kaur or he was not known. In any case, in view of the stand taken by Ajit Singh the prosecution should, in all fairness, have put Jaswant Kaur also at the test identification parade to identify Ajit Singh. If Ajit Singh was not known to Jaswant Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X
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