BALWAN SINGH AND ORS.versusSTATE OF HARYANA

                          [2014) 9 S.C.R. 454


A                    BALWAN SINGH AND ORS.
                                     v.
                        STATE OF HARYANA
                 (Criminal Appeal No. 1842 of 2014)
                           AUGUST 26, 2014
B                                           /


                [T.S. THAKUR, C. NAGAPPAN AND
                    ADARSH KUMAR GOEL, JJ.]

         Penal Code, 1860 - s. 302 rlw s. 149; s. 307 rlw s. 149; s. 449
C rlw s.149; s.148 and s.323 rlw s.149 - Assault launched by
     unlawful assembly armed with sharp edged weapons and fire-
     arms - Leading to death of one person and injuries to four
     others - Prosecution case based on the ocular testimony of
     PWs 4 and 5, who were daughter-in-law and daughter,
D    respectively, of the deceased - Conviction of appellants -
     Challenge to - Held: Testimonies of injured witnesses PW4
     and PW5 were natural, cogent and trustworthy and non-
     examination of the other two injured witnesses did not, in any
     way, affect the prosecution case - PWs 4 and 5 categorically
E    testified about the brutal attack made by the appellants on
     victims by describing their overt acts during the occurrence -
     Both of them were rustic women and not tutored witnesses -
     In the facts of the case, it could not be said that FIR came
     into being after deliberation - The Investigation Officer PW18
.F   Sub-Inspector seized blood stained earth from the occurrence
     place and that cfjnched the situs of the crime - There was also
     motive for the occurrence - The appellants nurtured a grudge
     against the victims on account of murder of a person
     belonging to their party and one of the family members of the
G    complainant side was involv.ed in the said murder and that
     culminated in the occurrence - However, on facts, the overt
     act attributed to appellant 'S', namely, attack on neck of the
     deceased with gandasa, was doubtful and his presence was
     not established and the benefit of doubt has to be given to

H                                   454
       BALWAN SINGH v. STATE OF HARYANA                   455


him - But so far as the other appellants are concerned, the      A
prosecution version was consistent, namely, that they were
armed with the lethal weapons and attacked the deceased and
others and the conviction and sentences recorded by the
Courts below were correct - Arms Act, 1959 - s. 25.
                                                                 B
      Evidence - Witness - Injured witness - Appreciation of -
Held: The evidence of injurf)d witness, being a stamped
witness, is accorded a special status in law - Injury to the
witness is an inbuilt guarantee of his presence at the scene
of the crime and because such a witness would not want to
let the actual assailant go unpunished.
                                                                 c
    The prosecution case was that the accused-
appellants and other accused armed with sharp edged
weapons and fire arms launched assault which led to the
death of one person and injuries to four others. The Trial       D
Court-convicted the appellants uls.302 r/w s.149 IPC;
s.307 r/w "s.149 IPC; s.449 r/w s.149 IPC; s.148 IPC and
s.323 r/w s.149 IPC and sentenced them each to undergo
imprisonment for life. In addition, appellant 'N' was held
guilty for the offence u/s. 25 of the Arms Act and               E
sentenced to undergo rigorous imprisonment for 2 years.
The conviction was affirmed by the High Court. Hence the
present appeals.

    Disposing of the appeals, the Court
                                                                 F
     HELD: 1.1. The prosecution case is based on the
ocular testimony of PW4 and PW5. They are the
daughter-in-law and daughter, respectively, of deceased
'B'. They have categorically testified about the brutal
attack made by the appellants on victims by describing           G
their overt acts juring the occurrence. Both of them in
their statements ·recorded during the investigation, as
well as, in their testimonies have stated that electricity
lights were on in the house, at the time of occurrence.
Their presence in the house cannot be doubted and they           H
     456        SUPREry1E COURT REPORTS [2014] 9 S.C.R.


A had no difficulty in identifying the assailants. Both of them
  sustained injuries and the grievously injured PW5 was
  admitted in the hospital at 3.25 a.m. itself. The medical
  evidence is available on record. The husband of PW4 and
  Smt. Phulla were also injured during the occurrence but
B were not examined. The testimonies of injured witnesses
  PW4 and PW5 are natural, cogent and trustworthy and
  non-examination of the other two injured witnesses does
  not, in any way, affect the prosecution case. [Para 16]
  (464-B-E]
c     1.2. It is trite law that the evidence of injured witness,
  being a stamped witness, is accorded a special status in
  law. This is as a consequence of the fact that injury to
  the witness is an inbuilt guarantee of his presence at the
  scene of the crime and because the witness would not
D want to let actual assailant go unpunished. [Para 16) (465-
    . B, CJ
       1.3. The contradictions and variations in the
  testimonies of the aforesaid witnesses do not go to the
E root of the case and the substratum of the prosecution
  version remains undisturbed. It is to be borne in mind that
  both of them are rustic women and not tutored
  witnesses. [Para 17) (465-C-D]

           Mano Dutt vs. State of U.P. (2012) 4 SCC 79 - relied on.
F
      2. The occurrence had taken place in the midnight at
  1.30 a.m. leaving one person dead on the spot and four
  others injured. Two of the grievously injured persons
  were immediately taken to hospital and the remaining two
G remained near the body in _the house. The distance
  between the occurrence place and the police station is
  about 10 kilometers. PW18 Sub-Inspector recorded the
  statement of PW4 at 9~00 a.m. in the occurrence place
  and the FIR came to be registered at 10.10 a.m. and the
H special report was delivered in the Court at about 11.30
                                                                          '
                                                                          f

                                                                      I
      BALWAN SINGH v. STATE OF HARYANA                  457


a.m. In the facts of the case, it cannot be said that FIR       A
came into being after deliberation. There is nothing to
suspect in the prosecution case. The Investigation
Officer PW18 Sub-Inspector has seized blood stained
earth from the occurrence place and that clinches the
situs of the crime. The cori~ention of the appellants that      B
the occurrence had not taken'place in the house of 'B' is
devoid of merit. In fact, 'B' immediately succumbed to the
injuries and the homicidal death is established by the
medical evidence. [Para 18] [465-E-H]

     3. There was also motive for the occurrence. The           C
appellants nurtured a grudge against the victims on
account of murder of a person belonging to their party
and one of the family members of the complainant side
was involved in the said murder and that culminated in
the. occurrence. [Para 19] [466-A, B]                           D

     4. The eye witnesses PW4 and PW5 testified
appellant Satish @ Shakti gave a gandasa blow on the
neck of 'B' and thereafter appellant Satbir Singh gave a
gandasa blow on the neck of 'B'. PW14 who conducted             E
autopsy on the body of 'B' found a single injury on the
neck of 'B'. Hence the overt act attributed to Satbir Singh,
namely, attack on neck of 'B' with gandasa, becomes
doubtful and his presence cannot be said to be
established and the benefit of doubt has to be given to         F
him. But so far as the other appellants are concerned, the
prosecution version is consistent, namely, that they were
armed with the lethal weapons and attacked the
deceased and others and the conviction and sentences
recorded by the Courts below are correct and does not           G
call for any interference. In the result the appeal preferred
by the appellant Satbir Singh is allowed and the
conviction and sentences imposed on him is set aside
and he is acquitted of the charges. The other appeals are
dismissed. [Paras 20, 21] [466-C-G]
                                                                H
    458        SUPREME COL.JRT REPORTS [2014] 9 S.C.R.


A                        Case Law Reference:
          c2012) 4 sec 79         relied on         Para 16

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1842 of 2014.
8
         From the Judgment and Order dated 27.01.2012 of the
    High Court of Punjab & Haryana at Chandigarh in CRA No. 547
    of 2004.

                                  WITH
c
    Criminal Appeal Nos. 1844 and 1843 of 2014.

       Sushi! Kumar, Alok Sangwan, Aditya Kumar, Meenakshi
    Kumar (For Devashish Bharuka) for the Appellants.
D       Manjit Singh, AAG., Vivekta Singh, Nupur Choudhary,
    Sanjay Kumar Rathee (For Kamal Mohan Gupta) for the
    Respondent.

          The Judgment of the Court was delivered by
E
          C. NAGAPPAN, J. 1. Leave granted.
      2. These three appeals are preferred against the common
  judgment dated 27.01.2012 passed by the High Court of Punjab
  and Haryana at Chandigarh in Criminal Appeal no.486-DB of
F 2004 and Criminal Appeal no.547-DB of 2004.

       3. The appellants herein are six in numbers and were tried
  along with others for the charges under Sections 148, 149, 302,
  307, 449, 323 and 216 of Indian Penal Code and in addition
G under Section 25 of the Arms Act, 1959 against appellant
  Naresh and the Trial Court found them guilty of the offence
  under Section 302 read with Section 149 IPC and sentenced
  them each to undergo imprisonment for life and to pay fine of
  Rs.10,000/- each with default sentence; further found them guilty
H for the offence under Section 307 read with Section 149 IPC
       BALWAN SINGH v. STATE OF HARYANA                     459
               [C. NAGAPPAN, J.]
and sentenced them each to undergo rigorous imprisonment            A
for 8 years and to pay fine of Rs.5000/- each with default
sentence; further found them guilty for the offence under Section
449 read with Section 149 IPC and sentenced them each to
undergo rigorous imprisonment for 5 years and to .pay fine of
Rs.3000/- each with default sentence; further found them guilty     B
for the offence unde,U:>ection 148 IPC and sentenced them
each to undergo rigorous imprisonment for 2 years each and
found them guilty for the offence under Section 323 read with
Section 149 IPC and sentenced them each to undergo rigorous
imprisonment for 9 months. In addition appellant Naresh was         c
found guilty for the offence under Section 25 of the Arms Act
and was sentenced to undergo rigorous imprisonment for 2
years and to pay fine of Rs.2000/- with default sentence. The
Trial Court directed the substantive sentences to run
concurrently. Challenging the conviction and sentence the
                                                                    0
accused preferred appeals in Criminal Appeal no.486-DB of
2004 and Criminal Appeal no.547-DB of 2004 and the High
Court allowed the appeal preferred by accused Subhash and
acquitted him of the charges. The appeals preferred by the other
accused were dismissed. Aggrieved by the confirmation of their      E
conviction and sentence six accused have preferred the present
appeals.

     4. The prosecution case in brief is stated thus : PW4 Smt.
Rekha is the daughter-in-law of deceased Bani Singh. PW5
Smt. Sud ha is the married daughter of the deceased. Accused        F
Naresh and Naseeb are sons of accused Dharambir. Accused
Satish @ Shakti and accused Satbir are re.al brothers. On
26.5.2001 at about 1.30 a.m. PW4 Smt. Rekha and her
husband Rishikesh were sleeping in the upstairs room of their
house. Her father-in-law Bani Singh, her mother-in-law Smt.         G
Phulla and her sister-in-law PW5 Smt. Sudha were sleeping in
the ground floor of the house. At that time accused persons
Dharambir carrying gandasa, Naresh armed with country made
pistol, Satbir, Satish @ Shakti and Dhillu all armed with
gandasa, Balwan carrying jelly, Ram ·Mehar armed with               H
    460         SUPREME COURT REPORTS [2014] 9 S.C.R.


A  gandasa and Dhaula armed with darant, all entered their house
   after scaling the boundary wall. The appellants/accused went
   upstairs and brought PW4 Smt. · Rekha and her husband
   Rishikesh to the ground floor and exhorted that they should be
   killed to take revenge for the murder of Yudhvir. Thereafter,
B Satish @ Shakti inflicted a gandasa blow on the neck of Bani
   Singh, Satbir caused gandasa blow at the very same place on
  ·the neck of Bani Singh, as a result of which, Bani Singh fell down
   and Dharambir inflicted gandasa blow on his right wrist and
   Dhillu gave gandasa blow which hit him in between his little and
C ring finger of the right hand. Dhaula inflicted a darant blow on
   the right leg of Rishikesh. Ram Mehar gave two gandasa blows
   on the left side of PW4 Smt. Rekha's back and one gandasa
   blow on the head of PW5 Smt. Sudha. Naresh fired shots from
   the pistol which he was carrying. Balwan gave a jelly blow
   causing an injury on the right hand of Smt. Phulla. Hearing the
0
   cries raised by the injured persons, Urned Singh and Ram
   Kumar rushed to the spot and the appellants/accused ran away
   with their weapons. Bani Singh succumbed to the injuries on
   the spot. The injured Rishikesh and PW5 Smt. Sudha were
   taken to the General Hospital, Bhiwani for treatment.
E
        5. At 9.00 a.m. on the same day, PW18 Sub-Inspector
    Balwan Singh reached the occurrence place and recorded
    Ex.PE the statement of PW4 Smt. Rekha and the Ex.PR, FIR
    was registered at 10.10 a.rn. on the same day. PW 18 Balwan
F   Singh conducted inquest andJ:>repared Ex.PCC inquest report.
    Ex.PHH is the rough site plan prepared by him. He sent the body
    of Bani Singh to General Hospital, Bhiwani for conducting post-
    mortem.

G        6. PW14 Dr. N.K. Chaudhary conducted autopsy on the
    body of Bani Singh on 26.5.2001 and found the following
    injuries:

          1. An eleptical wound left side of neck starting from midline
          reaching up to mastoid process measuring 5.5" x 4"
H         involving the left pinna partially amputated. The lower lateral
      BALWAN SINGH v. STATE OF HARYANA                        461
              [C. NAGAPPAN, J.]
    lobule of pinna, muscles, carotid vessels were exposed            A
    and there was subcutaneous echymosis present under the
    skin, carotid vessels ruptured. Clotted blood present.

    2.    Incised ~ound { x .5 inch on the right hand at lower
    one third laterally placed. Muscle exposed.                       8
    3.    Incised wound cutting through the centre of little finger
    and ring finger at right hand reaching up to middle of palm,
    Muscle deep fracture of second metacarpal present.

     He expressed opinion that death has occurred on account          C
of shock and haemorrhage due to injuries to major vessels and
nerves.

     7. PW8 Dr. Vasundhara Gupta examined Rishikesh on
26.5.2001 at 03.25 a.m. and found following injuries :
                                                                      D
    1. Lacerated wound of 8 cm x 6 cm over the anterior
    surface of right leg middle 1/3rd region. Fresh bleeding
    was present. Advised x-ray and ortho surgeon's opinion.

    2. A lacerated wound of 12 x 4 cm over the left side of face      E
    extending from the cheek to left frontal region of scalp.
    Fresh bleeding was present. Advised x-ray band surgeon's
    opinion.

   8. On the same day PW8 Dr. Vasundhara Gupta examined
PW5 Smt. Sudha and found the following injury :                       F

    Lacerated wound of 8 cm x 4 cm x 1 cm over the left side
    of frontal region of scalp. Swelling was present. Profuse
    bleeding was present. Advised x-ray and surgeon's
    opinion. The .patient was kept under observation and              G
    subjected to x-ray and opinion for nature of injuries.
    Duration of injury was within 24 hours. Kind of weapon was
    to be given after x-ray report. Copy of MLR is Ex.PM which
    bears my signature.
                                                                      H
    462         SUPREME COURT REPORTS [2014] 9 S.C.R.


A       9. PW15 Dr. Mahender Kumar examined PW4 Smt.
    Rekha on 26.5.2001 and found the following injuries :

          1. A lacerated wound triangular shape having 4 cm length
          of each arm on left lower back, superficial, redish in colour
          at the level of L4 and L5. Advised x-ray lumbar area AP
B
          and lateral also opined for General Surgeon's opinion.
          Injury was kept under observation.

          2. A lacerated wound present at upper back on the left
          lateral side measuring 6 cm x .5 cm x .5 cm and another
c         just above it measuring 3 cm x .5 cm x .5 cm. Advised x-
          ray thorasic AP and lateral and opined for surgeon opinion.

         10. PW15 Dr. Mahender Kumar also examined Smt.
    Phulla and found the following injuries :
D         1. Swelling, tenderness the right forearm. Advised x~ray.
          AP and lateral and opined for ortho surgeon opinion.

          2. Complaint of pain in the left foot.

E         11. PW18 Sub-Inspector Balwan Singh seized blood
    stained earth, one khol of cartridge and one sikka from the
    occurrence place by preparing a Memo and recorded the
    statements of witnesses. He arrested the accused and
    recovered the weapons on the information furnished by them
F   in their disclosure statements. On completion of investigation
    final report came to be filed in the case.

       12. During the trial the prosecution examined PWs 1 to 27
  and marked documents. The accused persons were examined
  under Section 313 Cr.P.C. and their statements were recorded.
G Thereafter, two witnesses were examined in defence. The Trial
  Court acquitted accused Balbir Singh and found the remaining
  nine accused guilty. Out of them accused Naseeb was
  released on probation since he was found to be a juvenile. The
  remaining eight accused were convicted and senjenced as
H stated earlier.
        BALWAN SINGH v. STATE OF HARYANA                         463
                [C. NAGAPPAN, J.]
    13. On appeal to the High Court the appeal preferred by              A
accused Subhash was allowed and he was acquitted of the
charges and at the same time, the appeals preferred by the
other appellants/accused were dismissed. Challenging their
conviction and sentence six accused have preferred the present
appeals.                                                                 B

       14. Shri SushillSumar, learned senior counsel appearing
 for the appellants, contended that there was inordinate delay
 in registering the FIR and it has come into existence after due
 deliberations to falsely implicate the appellants and the               C
 prosecution case should be discarded. He also contended that
 as per the testimonies of the eye witnesses accused Satish @
 phakti and Satbir Singh gave individual gandasa blows on the
,heck of Bani Singh, whereas the post-mortem doctor has
 noticed single injury only on the neck of Bani Singh and hence
 the overt act attributed to Satbir Singh is doubtful and his            D
 presence itself is not established. It is his further contention that
.out of four persons alleged to have been injured during the
 occurrence, two alone were e,xamined as witnesses and the
 non-examination of other two injured witnesses affects the
 prosecution case and makes it doubtful. Lastly, he contended            E
 that the occurrence had not taken place inside the house of Bani
 Singh and the appellants are falsely implicated due to party
 faction in the village.

     15. Per contra, Shri Manjit Singh, learned Additional               F
Advocate General appearing for the respondent-State,
contended that it is midnight occurrence and the parties are
known to each other, being residents of the same village and
PW4 Rekha and PW5 Sudha have not only witnessed the
occurrence but sustained injuries in the attack made by the              G
assailants on them and their testimonies have rightly been relied
upon and after the occurrence immediate attention was given
to take the injured to the hospital and thereafter the police were
informed and it cannot be said that there was undue delay in
                                                                         H
    464           SUPREME COURT REPORTS [2014] 9 S.C.R.


A   this regard and the conviction and sentences imposed on the
    appellants are sustainable.

       16. The prosecution case is based on the ocular testimony
  of PW4 Rekha and PW5 Sudha. They are the daughter-in-law
  and daughter, respectively, of deceased Bani Singh. They have
8
  categorically testified about the brutal attack made by the
  appellants on victims by describing their overt acts during the
  occurrence. Both of them in their statements recorded during
  the investigation, as well as, in their testimonies have stated
C that electricity lights were on in the house, at the time of
  occurrence. Their presence in the house cannot be doubted
  and they had no difficulty in identifying the assailants. Both qt
  them sustained injuries and the grievously injured PW5 Sudha
  was admitted in the hospital at 3.25 a.m. itself. The medical
  evidence is available on record. Rishikesh and Smt. Phulla
D were also injured during the occurrence but were not examined.
  The testimonies of injured witnesses PW4 Rekha and PW5
  Sudha are natural, cogent and trustworthy and non-examination
  of the other two injured witnesses does not, in any way, affect
  the prosecution case. In a similar fact situation this Court in the
E decision in Mano Dutt vs. State of UP. (2012) 4 SCC 79, held
  thus:

          "29. As per PW5, Dr. Surya Bhan Singh, he had examined
          Salik Ram Yadav as well as Nankoo on 22.10.1977 itself
F         and noticed as many as five injuries on Salik Ram and four
          injuries upon the person of Nankoo. He stated that the
          deceased was the son of Nankoo, while Salik Ram was
          his brother. These injuries were suffered by them from a
          blunt object.
              .
G         30: Salik Ram was examined as PW2 and his s.tatement
          is cogent, coherent, reliable and fully supports the case of
          the prosecution. However, the other injured witness,
          Nankoo, was not examined. In our view non-examination
          of Nankoo, to which the accused raised the objection.
H         would not materially affect the case of the prosecution.
       BALWAN SINGH v. STATE OF HARYANA                      465
               [C. NAGAPPAN, J.]
    Normally, an injured witness would enjoy greater credibility     A
    because he is the sufferer himself and thus, there will be
    no occasion for such a person to state an incorrect version
    of the occurrence, or to involve anybody falsely and in the
    bargain protect the real culprit." .................. .
                                                                     B
     It is trite law that the evidence of injured witness, being a
stamped witness, is accorded a special status in law. This is
as a consequence of the fact that injury to the witness is an
inbuilt guarantee of his presence at the scene of the crime and
because the witness would not want to let actual assailant go        C
unpunished.

     17. The contradictions and variations in the testimonies of
the aforesaid witnesses, in our considered view do not go to
the root of the case and the substratum of the prosecution
version remains undisturbed. It is to be borne in mind that both     D
of them are rustic women and not tutored witnesses.

      18. The occurrence had taken place in the midnight at 1.30
a.m. leaving one person dead on the spot and four others
injured. Two of the grievously injured persons were immediately      E
taken to hospital and the remaining two remained near the body
in the house. The distance between the occurrence place and
the police station is about 10 kilometers. PW18 Sub-Inspector
Balwan Singh recorded the statement of PW4 Rekha at 9.00
a.m. in the occurrence place and the FIR came to be registered
                                                                     F
at 10.10 a.m. and the special report was delivered in the Court
at about 11.30 a.m. In the facts of the case, we are unable to
appreciate the contention of the appellants that FIR came into
being after deliberation and there is nothing to suspect in the
prosecution case. The Investigation Officer PW18 Sub-
Inspector Balwan Singh has seized blood stained earth from           G
the occurrence place and that clinches the situs of the crime.
The contention of the appellants that the occurrence had not
taken place in the house of Bani Singh is devoid of merit. In
fact, Bani Singh immediately succumbed to the injuries and the
homicidal death is established by the, medical evidence.             H
    466        SUPREME COURT REPORTS [2014] 9 S.C,R.


A      19. There was also motive for the oc:currence. The
  appellants nurtured a grudge against the victims on account of
  murder of Yudhvir, son of Gugan Singh, belonging to their party
  and one of the family members of the complainant side was
  involved in the said murder and that has culminated in the
B occurrence.

       20. While considering the involvement of Satbir Singh in
  the occur!ence, we find some difficulty. The eye witnesses PW4
  Rekha and PW5 Sudha have testified Satish @ Shakti gave a
C gandasa blow on the neck of Bani Singh and thereafter Satbir
  Singh gave a gandasa blow on the neck of Bani Singh. PW14
  Dr. N.K. Chaudhary who conducted autopsy on the body of Bani
  Singh found a single injury on the neck of Bani Singh. Hence
  the overt act attributed to Satbir Singh, namely, attack on neck
  of Bani Singh with gandasa, becomes doubtful and his
D presence cannot be said to be established and the benefit of
  doubt has to be given to him. But so far as the other appellants
  are concerned, the prosecution version is consistent, namely,
  that they were armed with the lethal weapons and attacked the
  deceased and others and the conviction and sentences
E recorded by the Courts below are correct and does not call for
  any interference.

         21. In the result the appeal preferred by the appellant Satbir
    Singh in Special Leave Petition (Criminal) no.6674 of 2012 is
F   allowed and the conviction and sentences imposed on him is
    set aside and he is acquitted of the charges. The other two
    appeals in Special Leave Petition (Criminal) no.6673 of 2012
    and Special Leave Petition (Criminal) no.6384 of 2012, are
    dismissed.
G Bibhuti Bhushan Bose                              Appeals disposed of