PREM SINGH & ORS. versus STATE OF HARYANA

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(2009] 7 S.C. R. 1142

PREM SINGH & ORS. v STATE OF HARYANA Criminal Appeal No. 934 of 2009

MAY 06, 2009

(S.B. SINHA AND DR.MUKUNDAKAM SHARMA, JJ)

PENAL CODE, 1860 :

s. 302134 - Conviction - Non-mentioning of s. 34 in c concluding portion of Judgment -Effect of - Conviction of 5 . accused by trial court uls 3021149 - High Court acquitting three of them and affirming the judgment as regards the remaining two - Held : Acquittal of three of the accused would not mean that no case of common intention has been made out against the remaining two - It has not been established that they were prejudiced by non-mentioning of s. 34 in the concluding portion of judgment of High Court - A judgment is not to be read as a statute -

It must be read reasonably and in its entirety -

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- Judgment - Interpretation of.

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EVIDENCE:

Conviction by trial court uls 3021149 /PC of 5 accused - Acquittal by High Court of three of them - Plea that there being · discrepancies in evidences of PWs., judgment of High Court could not be sustained - Held: Both the trial court and the F High Court did not find any materiaf discrepancy in depositions of eye-witnesses - It is not a case where testimonies of eye- witnesses have been totally disbelieved - Doctrine of falsus-- in uno falsus in omnibus has no application in India.

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MAXIM:

'falsus in uno falsus in omnibus' - Applicability of.

The appellants along with three others were convicted and sentenced by the trial court uls 302 r/w s.149 1142

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PREM SINGH & ORS. V. STATE OF HARYANA

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IPC. On appeal the High Court while affirming the judgment A of conviction and sentence against the appellants, acquitted thtee of the accused giving them benefit of doubt, inter alia, on the premise that the injuries attributed to them were not found on the person of the deceased.

In the instant appeal it was contended for the B

appellants that both the courts below having noticed serious discrepancies and contradictions in the evidences of Pws.1 and 4, the judgment of the High Court was wholly unsustainable; and that all the accused having been charged with s.302/149 IPC and three of them having c been acquitted, appellants could not have been convicted u/s 302 IPC.

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Dismissing the appeal; the Court

HELD: 1.1 Correctness of the medical report is not D

in dispute. Homicidal nature of death of the deceased is also not in dispute. The appreciation of evidence on the ·part of the Sessions Judge cannot be faulted. In his judgment, he analysed the depositions of P.W.1 and P .. 4 at great details. Both, the Sessions Judge as also the High Court, did not find any material discrepancy in depositions of eye-witnesses i.e. PWs.1 and 4. Some inconsistencies in their testimonies were natural, but they were found to be not very material. Their testimonies on material particulars were found to have been truthful and both the F courts below have placed implicit reliance on both the witnesses. [para 9] [1148-D-E]

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1.2 The High Court recorded a ju~gment of acquittal in favour of three of the accused only on the premise that the role said to have been played by them was not G corroborated by the medical evidence. The High Court arrived at the said finding despite the fact that it placed implicit reliance upon the testimonies of P.W.1 and P.W.4. It is now a well settled principle of law that the doctrine 'falsus in uno falsus in omnibus' has no application in H

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India. It is also not a case where the testimonies of the eye-witnesses had been totally disbelieved. [Para 11, 13- 14] [1149-C-F; 1150-D-E ; 1150-G-H]

Jayaseelan vs. State of Tamil Nadu 2009(2) SCALE 506; and Mani @ Udattu Man & Ors. vs. State Rep. by Inspector of Police 2009 (3) SCALE 431 - relied on.

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Ba/aka Singh and Ors. vs. The State of Punjab (1975) 4

sec 511- distinguished.

2.1 It may be true that all the five accused persons c were said to have a common object; they were prosecuted u/s 302/149,IPC; but the same would not mean that only because three of them were given benefit of doubt on a premise which may not be wholly correct, no case of common intention has been made out against the D appellants. They came together armed; threatened the deceased; and went back together. It has not been established that the appellants had in any way been prejudiced by non-mentioning of s.34, IPC in the concluding portion of the judgment of the High Court. Though there is distinction between the common object and common inbmtion, but when a common intention can also be found out on the basis of the testimonies made by the witnesses examined on behalf of the prosecution, the High Court in a situation of this nature was totally justified in affirming the said opinion. [para 15,17] [1151-C-F; 1152-H; 1153-A]

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Jaswant Singh v. State of Haryana [2000) 4 SCC 484 ; and Y Venkaiah vs. State of A.P [2009 (4) SCALE 154]- relied on

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2.2 A judgment as is well known is not to be read as a statute. It must be read reasonably and in its entirety. The effect of a judgment must be found out from the wordings used by it and the attendant circumstances in which they have been used.

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The High Court; on a plain reading of it judgment,

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PREM SINGH & ORS. V. STATE OF HARYANA

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has attributed common intention on the part of the A appellants in committing the crime. Their conviction u/s 302/34, therefore, was justified. In absence of any prejudice having been shown on the part of the accused, this Court on such technicalities alone would not interfere with the impugned judgment: [para 16] [1152-B-D]

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Dhaneswar Mahakud & Ors. vs. State of Orissa (2006) 9

sec 307 -relied on.

Case Law Reference

(1975) 4 sec 511

distinguished para 12

2009(2) SCALE 506

relied on

para 13

relied on

para 13

2009 (3) SCALE 431 (2006) 9 sec 307 2000) 4 sec 484

relied on

relied on

2009 (4) SCALE 154

relied on

para 16

para 17

para 17

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal

No. 934 of 2009

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From the Judgment and Order dated 25.02.2008 of the Hon'ble High Court of Punjab & Haryana at Chandigarh in Criminal Appeal No. 428-DB of 1998

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Anil Agrawal, S.N. Pandey, Chander Shekhar Ashri, for F

the Appellant.

Pragati Neekhra, Suryanarayana Singh, for the

Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J.

1. Leave granted.

2. This appeal by special leave is against a judgment and

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A order dated 25.2.2008 passed by a Division Bench of the High Court of Punjab & Haryana at Chandigarh affirming a judgment of conviction and sentence dated 9.9.1998 passed by the Sessions Judge, Rohtak convicting the appellants herein for commission of an offence under Section 302/34 of the Indian

s Penal Code (for short, "IPC")

3. A First Information Report (for short, "FIR") was lodged on 8.10.1994 at about 5.50 p.m. by Prem Singh (P.W.1) inter alia alleging that Chand Ram, Ajmer and Dilbagh and the appellants (Prem Singh and Karambir @ Pappu) herein were responsible for causing death of his brother Krishan (the deceased).

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They were charged under Sections 148 and 302/149 of

the IPC.

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The prosecution in order to prove its case examined six

witnesses.

4. P.W. 1 in his deposition before the learned Sessions Judge stated that on the date of occurrence he was in his Bajra field along with the deceased. At about 1.00 p.m. one Samunder E and accused Ajmer were taking their bullock cart through their mustard crop which was objected to by the deceased as a result whereof they were forced to take back the same. They went away threatening to see the deceased later. At about 3.00 p.m. on the same day, accused persons came and started assaulting the deceased. Prem Singh (Accused No.2) is said to have given a jelly blow on the chest of the deceased whereas Karambir @ Pappu (Accused No. 3) inflicted a farsa blow on his head; Chand Ram (Accused No.1) is said to have given a jelly blow on his abdomen whereas Ajmer (Accused No.4) inflicted a jelly blow G on his left knee. Dilbagh (Accused No. 5) is said to have given a jelly blow with a lathy on the back of the deceased. While being taken to hospital, the deceased died at about 5.00 p.m.

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5. The learned trial judge on analysis of the entire evidence H brought on record and after noticing the purported contradictions

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PREM SINGH & ORS. V. STATE OF HARYANA [S.B. SINHA, J.]

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in the statements of the prime witnesses, namely, Prem Singh A (P.W.1) and Baljit Singh (P.W.4) found all of them guilty for commission of murder of the deceased. The High Court, however, while disposing of the appeal preferred by them inter alia on the premise that the injuries attributed to the three others apart from the appellants herein having not been found on the B person of the deceased gave them the benefit of doubt while affirming the judgment of conviction and sentence against the appellants.

6. Mr. Anil Agrawal, learned counsel appearing on behalf of the appellant would raise the following contentions before us c in support of this appeal:

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All the accused persons having been charged for commission of murder of the deceased Krishan under Section 302/149 of the IPC and three of them having been acquitted, appellants could not have been convicted under Section 302 of the IPC.

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Both the courts below having noticed the serious discrepancies and contradictions in the evidences of P.Ws. 1 and 4, the impugned judgment is wholly E unsustainable.

7. Ms. Pragati Neekhra, learned counsel appearing on behalf of the State, however, would support the impugned judgment.

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8. P.W. 1 - Prem Singh -was with the deceased from the very beginning. He was a witness to both the stages of occurrence,. namely, the act of the two accused to drive bullock cart through the agricultural field where mustard crop had been · grown as also the assault on the deceased by all the accused G persons which had taken place at about 3.00 p.m.

Indisputably, the deceased was taken to a hospital. The hospital and the Police Station at Meham was situated at a distance of about 10 kilometers from the village Nidana where the incident had taken place. P.W. 4 - Baljit Singh was also H

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A nearby. The deceased was taken to the hospital by a buggi. The FIR was lodged at about 5.10 p.m. and it was recorded at 5.50 p.m. P.W. 3- Om Prakash Patwari drew the sketch map.

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9. As was stated by Dr. Narender Singh (P.W.2), Medical Officer In-Charge of the Madhath Dispensary, Rohtak, following injuries were found on the person of the deceased :

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"1. A contusion reddish colour 8 cm x .5 cm about 7 cm

below right axilla on right chest.

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2. A semi circular wound (punctured) .9 cm x .6 cm x 4 cm, (punctured wound) just above sternal notch.

3. A semi circular wound (punctured) .9 cm x .6 cm x 4 cm, 5cm away from above injury on left chest below left sternoclavicular joint."

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All the injuries were found to be sufficient to cause death

in the ordinary course of nature.

Correctness of the said medical report is not in dispute. Homicidal nature of death of the deceased is also not in dispute.

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10. We have gone through the evidence of the first informant Prem Singh (P.W.1) and Baljit Singh (P.W.4). Whereas P.W.1 was examined on 9.2:1996, P.W. 4 was examined on 9.5.1997.

11. Both the learned Sessions Judge as also the High Court F did not find any material discrepancy in their depositions. Some contradictions and/or inconsistencies in their testimonies were natural, but they were found to be not very material. We may in this regard place on record the following findings of the learned Sessions Judge:

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'There is nothing on record to prove that the two witnesses had swerved from the path of truth, either by suppression or by concoction or by the embellishment of facts which are untrue. Undeniably, there are contradictions in their testimonies and they have made slight improvements from

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PREM SINGH & ORS. V. STATE OF HARYANA [S.B. SINHA, J.]

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the version given by them before the police, but the hub of A their testimony remains intact and the criticism leveled against their testimonies does not seem to be well founded."

The appreciation of evidence on the part of the learned Sessions Judge cannot be faulted. In his judgment, he had analysed the depositions of P.W.1 and P.W. 4 at great details. He not only placed on record the slight improvements made by the witnesses from their statements made before the police but also pointed out some inconsistencies in their depositions in the court. But the testimonies in material particulars were found c to have been truthful.

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The High Court recorded a judgment of acquittal in favour of Chand Ram, Ajmer and Dilbagh only on the premise that the role said to have been played by them was not corroborated by the medical evidence. The High Court arrived at the said finding despite the fact that it placed implicit reliance upon the testimonies of P.W.1 - Prem Singh and P.W. 4 - Baljit Singh, opining:

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"PW-1 Prem Singh and PW-4 Baljit, being real brothers E of the deceased, will be the last persons to leave out the real accused and implicate the appellants. Their presence in the fields was quite natural. Their version has remained unshaken in the cross-examination. No major discrepancy has been pointed out in the testimony of PW-1 Prem Singh F and PW-4 Baljit. We are of the view that there is no reason to reject the testimony of PW-1 Prem Singh and PW-4 Baljit qua appellants Prem and Karambir @ Pappu. Adequacy or absence of alleged motive has no significance where reliable eyewitnesses' account is available."

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12. Strong reliance has been placed by the learned counsel on a decision of this Court in Ba/aka Singh and Ors. vs. The State of Punjab [(1975) 4 sec 511] wherein the four accused who were said to have taken active part in the assault of the H

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A deceased had not been named in the inquest report as also in the brief statement by the very person who had lodged the FIR prior thereto. The Court found that their names were deliberately added in the inquest report at the instance of the prosecution and thus there was no guarantee as regards their participation in the assault on the deceased. The injuries found on the body of the deceased were either contusions, abrasion or lacerated wounds. No penetrating or incised wounds were found to be present and, thus, the use of sharp-cutting instrument, such as, barchha or spear was held to be belied. This Court in the peculiar c facts of that case held that grain cannot be separated from the chaff being inextricably mixed up as in the process of separation the Court would have to reconstruct an absolutely a new case for the prosecution by divorcing the essential details presented by it completely from the context and the background against which they are made. It is on the aforementioned finding the prosecution case was not believed. Such is not the case here.

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13. It is now a well settled principle of law that the doctrine

'falsus in uno falsus in omnibus' has no application in India.

In Jayaseelan vs. State of Tamil Nadu [2009 (2) SCALE

506], this Court held:

"The maxim "falsus in uno falsus in omnibus" 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. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence."

{See also Mani @ Udattu Man & Ors. vs. State Rep. by

Inspector of Police [2009 (3) SCALE 431]}

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14. It is also not a case where the testimonies of the eye-

witnesses had been totally disbelieved.

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Benefit of doubt has been given only because the A

testimonies of the witnesses in regard to the place of assault on the person of the deceased were not corroborated by the medical evidence. The High Court failed to notice that all the accused persons were charged of having common object of causing murder. A few of them might have taken active part and B others might have aided and abated the commission of the offence. It is, however, neither possible nor necessary to delve into the said question as the State has not filed any appeal questioning the correctness of the said order. The fact, however, remains that both the courts below have placed implicit reliance c on both P.W.1 and P.W.4. We see no reason to take a different view.

15. The second contention of the learned counsel, in our opinion, is also without any merit. It may be true that all the five accused persons were said to have a common object; they were D punished under Section 302/149 of the IPC; but the same would not mean that only because three of them were given benefit of doubt on a premise which may not be wholly correct, no case of common intention has been made out against the appellants.

They came together armed. They had threatened the E

deceased. They went back together. It has not been established that the appellants herein had in any way been prejudiced by non-mentioning of Section 34 of the IPC in the concluding portion of the judgment of the High Court. The High Court, in its judgment, however, categorically stated:

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"As regards Karambir@ Pappu, who has been attributed simple injury on the head, we are of the view that both the ... accused clearly shared common intention. They came prepared with deadly weapons and both have assaulted the deceased on vital parts of the body. It is not a case of G sudden occurrence. The deceased died almost immediately as a result of the injuries received. There is no reason to doubt sharing of common intention by Karambir@ Pappu. He cannot, thus, avoid responsibility for causing of the death. Even if injury individually attributed H

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to him is held to be simple, it cannot be held that he could not have pre-conceived the result of the assault.

Accordingly, while conviction and sentence of Chand Ram, , Ajmer and Dilbagh are set aside and qua them, the appeal is allowed and they are acquitted, conviction and sentence of Prem and Karambir@ Pappu is upheld and qua them, the appeal is dismissed,"

16, A judgment as is well known is not to be read as a statute, It must be read reasonably and in its entirety, The effect c of a judgment must be found out from the wordings used by it and the attending circumstances in which they have been used. The High Court, on a plain reading of its judgment has attributed common intention on the part of the appellants in committing the aforementioned crime. Their conviction under Section 302/ 34, therefore, was justified. In absence of any prejudice having been shown on the part of the accused, this court on such technicalities alone would not interfere with the impugned judgment.

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In Dhaneswar Mahakud & Ors. vs. State of Orissa [(2006)

9 sec 307], this court held:

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"23. The nature of the injuries sustained by the deceased clearly indicates the intention of the accused-appellants to do away with the deceased. The evidence of the witnesses along with the injuries reported in post-mortem reports clearly bring out the common intention of the accused-appellants and we do not think that the accused appellants would be prejudiced merely because the charge was framed under Section 302 read wi.th Section 149, IPC and not under Section 302 read with Section 34, IPC. From the evidence of two witnesses, PW-5 and PW-7, it would appear that the accused-appellants shared the common intention to cause death of the victims."

17. While we say so, we are not oblivious of the distinction between the common object and common intention. But when H a common intention can also be found out on the basis of the

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testimonies made by the witnesses examined on behalf of the A prosecution, the High Court in a situation of this nature was totally justified in affirming the said opinion.

See Jaswant Singh v. State of Haryana [(2000) 4 SCC

484 paragraph 22 to 25]

. Recently in Y Venkaiah vs. State of A.P [2009 (4) SCALE

154], this Court held:

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"31. The Constitution Bench of this Court in Mohan Singh and Anr. v. State of Punjab -AIR 1963 SC 17 4, construed the scope of Section 34 and compared it with Section C 149 and pointed out the essential distinction between the two. Justice Gajendragadkar (as His Lordship then was) speaking for the Constitution Bench held that like Section 149, Section 34 also deals with cases of constructive criminal liability in the sense where a criminal act is done D by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. According to the Constitution Bench, the essential constituent of the vicarious criminal liability contemplated by Section 34 is E the existence of common intention. When such common intention animates the accused persons and leads to the commission of the criminal offence charged, each of the persons sharing the common intention is constructively liable for the criminal act done by one of them. The F Constitution Bench held that in some ways Section 34 and Section 149 are similar and in some areas they may overlap but nevertheless the common intention, which is the sine-qua-non of Section 34 is different from the common object which brings together an unlawful assembly of G persons within the meaning of Section 149 of the Code."

18. For the reasons aforementioned, there is no merit in

this appeal. It is dismissed accordingly.

R.P.

Appeal dismissed.