HOSHIAR SINGH AND ORSversusSTATE OF PUNJAB

                       HOSHIAR         SINGH AND ORS.                             A
                                    v.
                             STATE OF PUNJAB

                                OCTOBER 29, .1991

          [KULDIP SINGH AND MADAN MOHAN PUNCHHI, JJ.]                             B
          Indian Penal Code, 1860: .

          Ss. 148, 149, 302, 302/149, 307, 307/149:

          Murder, attempt to murder-Trial of 9 accused-Acquittal of 4 and
    conviction of 5--Validity of.                                                 C
          Evidence Act, 1872:

          Murder and attempt to murder-Large number of participants-Ac-
    quittal of some accused and conviction of the othe~rosecutio11 evidence -
    Credibility of.· Maxim-;i:;alsus in u110 falsus in omnibus-Applicability of   D
    Exhortation-Evidentiary value of.

          A litigation regarding possession of a certain plot of land was
    pending in the civil court between the complainants and the accused
    persons. On 16.12.1975 at about 8 a.m. the accused, armed with fire-arms
    and sharp edged weapons, reached the outer-house of the complainants          E
    and attacked them. Accordi g to the prosecution case, accused No. 4 who
    was unarmed, raised an exhortation challenging deceased-1, and caught
    hold of his long hair while accused 1 fired a rifle shot at him and accused
    No.7 gave two successive gandasa blows on his head. Accused No.9 fired a
    shot at PW 15. Accused nos.6 and 8 fired one shot each at deceased-2 who
    also succumbed to his injuries. PW 16 was fired at by accused No. 2 hitting   F
•   him at the left arm and Dank. Accused No. 3 and 5 gave blows from the
    reverse side of gandasa and spear to PW.17 and another woman
    respectively. On the side of the accused, a spear ,bl«>W of accused No. 5
    accidently his accused no. 9 and a shot fired by accused No. 6 accidently
    hit another man on the side of the accused who later on died. Besides the     G
    members of the complainant's family, the neighbours, PWs, 18 & 19 also
    witnessed the occurrence. The. accused were alleged to have run away
    taking a rifle and revolver belonging to the complainants. The police
    investigation culminated in the trial of the 9 accused.

                                                                                  H
                                         575
     576                     SUPREME COURT REPORTS            (1991) SUPP. 1 S. C.R.

.A        The Trial Court acquitted four accused (nos.1 and 3 to S ) b~t
     convicted the appellants (accused nos. 2 and 6 to 9) or offences punishable
     under ss. 148; 149, 302, 302/149, 307 and 307/149 and sentenced them to ~
     various terms or imprisonment.

          The appeal tiled by the appellant having bee11 dismissed by the High
B    Court, an ~ppeal by special leave to this Court was filed. _

           It was contended on behalf or the appellants that the four accu~
     having been acquitted despite the eye witnesses deposing to their
     participation in the alleged incident, no credence should be given to the ~               <
C    prosecution witnesses in order to maintain the' conviction; and that the
     prosecution failed to explain the way the injuries were caused to the
     persons on the accused side.

            Dismissing the appeal, this Court,

D          HELD :1. The large number of participants in the occurrence would,
     at some place or the other leave a place for entertaining some doubt. But
     in theinstant case the prosecution case as a whole remaine"- strong sup- ,,.
     ported as it was by the independent evidence of P.Ws.18 and 19, the neigh-
     bours. 'ibe OCCWTence took place in the Courtyard of the outer house or the
 E   complainant party. Blood stained earth was collected from four places there-
     in during investigation. In the totality of circumstances it cannot be said that
     the 11181dmfalsus in uno falsus in onmibus was attracted. (583 H; 584A,C)

           2. Exhortation is necessarily not a padding or over doing and has to be
     viewed in the correct perspective, in the facts and circumstances of each case.   .-'*,
 F   [582E]

         In the instant case, the roles assigned to accused no. 4 who was
   acquitted, that he gave [an] exhortation, caught hold of the long hair of
   deceased-1 and ~lt'tried away his rifle after the incident, were, according to
 G the Sessions Judge, part of the overdoing. The fact that the rifle was being
   carried by the accused at the time of his arrest was considered by him to
   i>e·abnormal as otherwise in the normal course or events it was expected to ~
   have been kept concealed. The Sessions Judge held that he was not satis-
 H tied about the criminality of accused No. 4. (582 C-D]
                         HOSHIARSINGH v. STATE                         577

      Besides the exhortation, there were other factors available which       A
could lead the Sessions Judge to take the view that he had, and that was a
possible view which any cautious Judge could have taken. But that per se
does not mean that the witnesses who had deposed to the participation of
the accused at the time of occurrence have to be dubbed as liars. [582 E-F}

      lainul Haque v. State of Bi/tar, AIR 1974 SC 45 , referred to.          B
       3.1 With respect to acquitted accused No. 3, the Sessions judge held
that though PW 17 had received injuries from the reverse side of the
gandasa from the accused still in the FIR the use of weapon was mentioned
but not the manner in which it was used; and that it was normally expected
of the accused to have given at least one gandasa blow to someone· from the C
sharp side. Besides his taking away the revolver from the victim after the
occurrence did not inspire confidence. In the circumstances, the act of
removing the revolver was viewed with suspicion, more so, when its
recovery was made as a result of the disclosure statement after a span of
eight days of the arrest of the accused. The view of the Sessions judge that D
the case against acquitted accused No. 3 did not stand beyond reasonable
doubt was a possible view taken on a cautious approach, without telling on
the veracity of the prosecution witnesses. [582 G-H; 583 A-BJ

      3.2 Acquitted accused No. 5 was said to have used a spear blunt-
wise but the concerned victim was not found to have any stab or punctured E
wound. The recovery of the spear taking place after seven days of arrest of
the accused was viewed with suspicion due to the time lag. There was
omission in the FIR of the specific manner in which the weapon had been
used. The finding of benefit of doubt to accuse~ No.5 could be given by the
Sessions Judge without causing least dent to the prosecution case. Shifting F
the grain from the chaff does not mean loss of grain and gain of chaff.
Such a view of the learned Judge cannot cast a reflection on the case as a
whole. (583 C-E)

      3.3 As regards acquitted accused No.1, finding the description of the
weapon being in discord with the medical evidence the Sessions Judge held     G
the prosecution case not to have been proved against the accused. Even
though the Sessions Judge did not extend the benefit of doubt to the
accuse,d in so many words, his approach was an exercise in that direction.
The acquittal of accused No.1 too would cause no affectation to the
prosecution case as a whole. [589 F-G]
                                                                              H
    578                    SUPREME COURT REPORTS            [1991] SUPP. 1 S. C.R.


A         4.1 The first information report specifically mentioned that the in-       ~-

    juries to the persons on the side of the accused were as a result of the
    doings of accused persons themselves; and all the eye witnesses cogendy
    and consistently deposed to that effect. (584 B-C]

B          4.2 The time of the occurrence being 8.00 a.m. and the inmates of the
  · house being busy with their daily chores, the complainant part)' would not
    anticipate an assault and be ready with fire-arms to put them to use. The
    fact that the licensed weapons of the complainant party were not shown to
    have been used by itself established that the injuries received by the per-
    sons on the side of the accused were accidental and suffered in the man-
C ner as suggested by the prosecution. [584 D-E]
         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No.404 of 1979.

D        From the Judgment and order dated 19.4.79 of the Punjab High
    Court in Criminal Appeal No.843 of 1976.

          AN. Mulla, N.D. Garg and T.L. Garg for the Appellants.

          Ms. Arnita Kohli and R.S. Suri for the Respondents.
E
          The Judgment of the Court was delive:red by

          PUNCHHI, J. This appeal by special leave is directed against the
    judgment and order of the Punjab and Haryana High Court at Chandigarh
F   dated April 19, 1979 passed in Criminal Appeal No. 843of1976.

        The appellants herein are five in number. They along with four
  others were sent up for trial before the Court of Session, Faridkot on·
  various charges as detailed in the judgment under appeal. Those four
G co-accused of the appellants were acquitted by the learned Sessions Judge,
  and the matter seems to have rested there because apparently the State of
  Punjab did not rake up the issue against those four accused. On the basis
  thereof, the principle plea of the appellants through their counsel herein is
  that when four accused have been acquitted, the prosecution story itself
H has lost credence, entitling the appellants to acquittal. It is this plea which
  has engaged our attention.
                  HOSHIAR SINGH v. SfATE ( PUNCHHI, J.]               579

      The parties belong to village Talwandi Bhagerian, Distt. Faridkot, A
Punjab. Thereat was a vacant plot belonging to Karnek Singh, Jagatjit
Singh and Wasakha Singh sons of Partap Singh, who were living abroad..
Adjoining thereto was the outer house of Balwant Singh P.W.15. Accord-
ing to the prosecution, Balwant Singh P.W.15 had put up a boundary wall
around it as also a structure thereon storing wheat chaff therein, besides
putting cotton sticks and dung man~e in the unbuilt space. Mohinder B
Singh son of the said Balwant Singh P.W.15 moved the Civil Court through
a suit on December 10, 1975 seeking a decree for permanent injunction
restraining his co-villager Jiwan Singh, his sons Naib Singh appellant herein
and Mohinder Singh an acquitted co-accused, as also the minor sons of the
aforesaid two accused from interfering in his possession over the suit land..
The Court on December 10, 1975 granted interim injunction restraining the G
impleaded defendants from interfering with the possession of the plaintiff
over the disputed plot. Later on the request of the defendants, the Civil ,
Court on 29-1-1976 identified the suit property being in Khasra No.345, 346
and 356 and out of the same vide Order Ex.D-16, vacated the temporary
injunction in respect of Khasra No. 345 and 346 confirming the same in
respect of Khasra No.356. Besides there had been security proceedings D
between Mohinder Singh aforesaid and his brother Ginder Singh (one of
the victims) on the one hand and Nirmal Singh and Darshan Singh ac-
quitted co-accused and some others, on the other. However, both parties
were ultimately discharged by the C?urt.

      The occurrence took place in that interval on 16-12-1975 when the       E
temporary injunction was in force. The complaina.rit party except for P.Ws.
18 and 19 are members of one family. This relationship is disclosed in the
judgment of the learned Sessions Judge as also by the High Cour~. We
would not burden this judgment with details thereof. The fact remains that
on the night inter-vening 15th and 16th December, 1975, Jugraj Singh
P.W.14 , Balwant Singh P.W.15, Ginder Singh, since deceased and Assa          F
Singh had slept in a room in their outer house, and where they were keep-
ing their cattle also. At about 8.00 a.m. on December 16, 1975, all the
inmates of the outer house, and others having joined them having come
from ·their residential house, at that time were busy doing their assigned
chores. At that juncture, the five appellants namely, Hoshiar Singh, armed
with SBBL gun, Jalaur Singh, armed with a 12 bore DBBL gun, Ex.M.0./5,        G
Sardara Singh, armed with a gandasa, Ex.M.0./2, Ram Singh alias Ram
Charan Singh, armed with SBBL gun, Ex.M.OJ6 and Naib Singh son of
Jiwan Singh, armed with a DBBL gun, Ex.M.0./7 entered the house ac-
eompanied by five other men. They were the four acquitted co-accused
namely, Thamman Singh, unarmed, Darshan Singh, armed with a gandasa,
                                                                              H
    580                   SUPREME COURT REPORTS          [1991] SUPP. 1 S. C.R.

A Mohinder Singh, son of Jiwan Singh (brother of Naib Singh, appellant)
  armed with a spear, Nirmal Singh, armed with a rifle and Major Singh, the
  fifth man, armed with a DBBL gun, who was lately injured during the
  occurrence. Thamman Singh acquitted co-accused raised an exhortation
  challenging Ginder Singh that he would not be spared. Thamman Singh,
  then caught hold of the long hair of Ginder Singh and thereupon Nirmal
B Singh acquitted co-accused fired a shot .with his rifle hitting Ginder Singh
  on his left flank. On Ginder Singh falling down by the side of the manger,
  Sardara Singh appellant gave two successive gandasa blows on the head of
  Ginder Singh deceased while he was in the process of falling down. This
  was the first easualty. It was followed by Naib Singh appellant firing at
C Balwant Singh P.W.15 hitting him in the abdomen reflective of attempt to
  murder. Dhanna Singh alias Shinghara Singh a member of the
  complainant's family also happened to reach the scene of the occurrence
  having come from the residential house and while in the door way was fired
  at by Jalaur Singh appellant with his gun followed by a gun shot by Ram
  Singh alias Ram Charan Singh appellant hitting Dhanna Singh. This was
D the second casualty. Sukhminder Singh, P.W.16 also reached there and was
  fired at by Hoshiar Singh appellant hitting him on the left arm and blank ,
  where upon he fell down. This was the second case reflecting attempt to
  murder. The female folk Bhagwan Kaur P.W.17 and Raj Kaur present at
  the place of occurrence while raising alarm laid themselves over Ginder
  Singh and Sukhvinder Singh respectively. Darshan Singh acquitted co-ac-
E cused gave blows from the reverse side of his gandasa to Bhagwan Kaur
  P.W.17, and Mohinder Singh co-accused to Raj Kaur with the blunt side of
  his spear. Apart from the members of the family involved Sukhdev Singh
  P.W.18, Pritam Singh P.W,19, neighbours, had oC:casion to see the occur-
  rence while standing in their respective houses. On the side of the accused
  party, so claimed the prosecution, a Barchha(spear) blow of Mohinder
F Singh meant to hit Raj Kaur accidently hit the abdomen of Naib Singh
  appellant. Likewise, a shot fired by Jalaur Singh appellant accidently
  caused injury to Major Singh the co-culprit, but that injury later proved
  fatal. The accused persons took away not only their weapons but a
  licensed rifle of Ginder Singh and revolver of Mohinder Singh son of Bal-
  want Singh P.W.15 from inside the room (baithak) while going away. This
G is the whoie prosecution case with regard to the motive and the actual
  occurrence.

          To complete the picture the deceased persons were taken to the Civil
    Hospital, Moga wherefrom Dr.A.C. Gupta P.W.I sent intimation to Police
    Station, Moga Sadar. Avtar Singh, ASL P.W.20 reached the spot and
H   recorded the statement of Jugraj Singh P.W.14 at 11.00 a.m., within three
                       HOSHIARSINGHv. SI'ATE(PUNCHHI,J.]                  581

     hours of the occurrence, formal F.l.R. of which was recorded at the Police A
     Station at 11.15 a.m. In that statement vivid details of the occurrence are
     given. The injured persons were examined and given medical aid. The
     bodies of the deceased persons were subjected to post-mortem. The ac-
     cused were arrested and weapons were recovered, either from them, or at
     their instance, on statements made under Section 27 of the Evidence Act.
     The accused at. the trial pleaded denial to the occurrence but Naib Singh B
     appellant gave written statement, Ex.D-6 as his counter version. The trial
     resulted in the acquittal of four persons but so far as the appellants were
     concerned, all of them were held guilty and convicted under Sections 148,
     449 IPC awarding them various terms of sentences. Substantively, Sardara
     Singh appellant was convicted under Section 302 IPC for having caused the
     death of Ginder Singh by giving him two fatal gandasa blows. The remain-     c
     ing appellants were convicted constructively under Sections 302/149 IPC.
     All of them were given life sentence. Jalaur Singh and Ram Singh appel-
     lants were substantively convicted under Section 302/149 IPC for causing
     the death of Dhanna Singh and the remaining appellants under Sections
     302/149 IPC, and all were awarded life sentence. Naib Singh appellant was
     substantively convicted under Section 307 IPC for murderously attacking D
     Balwant Singh P.W.15, as also Hoshiar Singh appellant under Section 307
     IPC for murderously attacking Sukhminder Singh P .W .16. The remaining
     four .appellants in each case were convicted constructively under both . ·
     counts under Sections 307/149 IPC and awarded various terms of imprison-
     ment. All the sentences imposed were ordered to run concurrently. Ap-
     propriate orders of disposal with respect to the weapons recovered were E
     passed by the learned Sessions Judge.

           As indicated above, the main plea of the appellants is that four ac-
     cused having been acquitted, despite the eye-witnesses deposing to their
:"   participation, no credence should be given to the prosecution witnesses in
     order to maintain the convictions. The maxim f alsus in uno f alsus in om-   F
     nibus has been pressed into service. It appears that the argument as such
     was not raised before the High Court. Rather it appears that the High
     Court's attention was not invited to the reasoning of the learned Sessions
     Judge in acquitting the four co-accused. It would be apt therefore to
     scrutinize that reasoning and see whether the prosecution case has lost
     credibility on such reasoning.                                               G

           Thamman Singh acquitted accused was empty handed. The role at-
     tributed to him is that he gave an exhortation challenging Ginder Singh
     deceased to be ready and that he would not be spared. He then caught
     hold of the long hair of Ginder Singh. Thereafter Ginder Singh was as-
                                                                                  H
    582                     SUPREME COURT REPORTS            (1991) SUPP. 1 S. C. R

A saulted. At the end of the occurrence, he is blamed of having taken away
    the licensed rifle of Ginder Singh. The learned Sessions Judge tended to go
    in generalities in terming that the evidence of exhortation, in the very na-
    ture of things, is a weak piece of evidence and there was quite often a
    tendency to implicate some person besides the actual assailant. For this he
    took the cue from a reported decision of this Court in Jainul Haque v. State
B   of Bihar, AIR 1974 SC 45 as well as a decision of t~e Punjab and Haryana
    High Court to that effect in support. Then without coming to the specifics
    the learned Sessions Judge abruptly came to the conclusion that when
    Thamman Singh acquitted co-accused had come to the spot empty handed,
    the exhortation appears to have been introduced in the prosecution case
C   and that the witnesses apparently were out to rope him in. The two roles
    attributed to him, namely, of catching the long hair of Ginder Singh and to
    have carried away the rifle of Ginder Singh went in the same sweep to hold
    that this was part of the over doing. The fact that the rifle was being carried
    by Thamman Singh at the time of his arrest was considered by the learned
    Sessions Judge to be abnormal as otherwise in the normal course of events,
    it was expected to have been kept concealed somewhere. His finding thus
D   in his own words is "The fact remains that I have not been satisfied about
    the criminality of Thamman Singh." The only comment worth making is
    that exhortation is necessarilY-J!Ot a padding or over doing and has to be
    viewed in the correct perspective, in the facts and circumstances of each
    case. In the instant case, besides the exhortation, there were other factors
E   available enumerated herein, which could lead the learned Sessions Judge
    to take the view that he has, and that was a possible view which any
    cautious Judge could have taken. But that per se does not mean that the
    witnesses which had deposed to the participation of the accused at the time
    of occurrence have to be dubbed as liars.

F         With regard to Darshan Singh acquitted accused, the role assigned
   to him is that he gave gandasa blows to Bhagwan Kaur P.W.17 from the
   reverse side and that. he took away the licensed revolver of Mohinder Singh
   from the room (baithak) of the outer house. The learned Sessions Judge
   opined that though the eye witnesses account was that Bhagwan Kaur had
   received injuries from the reverse side of the gandasa from Darshan Singh,
G still in the First Information Report given by Jugraj Singh P.W.14, the use
   of the weapon was mentioned but not of the manner in which it was used.
   The learned Sessions Judge took the vieY., that it was normally expected of
 ~ Darshan Singh to have given at least one· gandasa blow to someone frof!!
   the sharp side as well. Besides his taking away the revolver from Mohinder
   Singh after the occurrence did not inspire confidence, like the case of
H Than,iman Singh. Besides if these two weapons namely_ the rifle and th.e
                           HOSHIARSINGH v. STATE [ PUNCHHl,J.)                   583

         revolver were available with the complainant party when the occurrence          A
         started it was expected of them to have used those, which had not ap-
    ..   peared to have been used. In that light the act of removing the revolver was
         viewed with suspicion, more so, when its recovery was made as a result of
         the disclosure statement after a span of eight days from the date of arrest
         of Darshan Singh. The learned Sessions Judge then concluded with these
         words, "The case against parshan Singh, accused does not again stand            B
         beyond reasonable doubt". Now such a view of the learned Sessions Judge
         was a possible view taken on a cautious approach, without telling on the


-
         veracity of the prosecution witnesses.

               So far as Mohinder Singh acquitted accused is concerned, he is said
         to have used a spear blunt-wise on Raj Kaur. Raj Kaur was not found to          C
         have any stab or punctured wound. Further the spear was recovered after
         seven days of the arrest of Mohinder Singh and that recovery was viewed
         with suspicion due to the time lag. The version in F.I.R. was pressed into'
         service about the omission of the specific manner in which the weapon had
         been used. The learned Sessions Judge then held, "I would accordingly give ·
         the benefit of doubt to Mohinder Singh accused and acquit him." This            D
         finding could be given by the learned Sessions Judge without causing the ·
         least dent to the prosecution case. Shifting the grain from the chaff does
         not mean loss of grain and gain of chaff. Such a view of the learned Judge :
         cannot caste a reflection on the case as a whole.

                Lastly Nirmal Singh acquitted accused was described in the F.1.R. to E
         be armed with a "pakki banduq" which description the learned Sessions
         Judge translates as "rifle". Since Nirmal Singh is accused to have begun the
         occurrence by firing at Ginder Singh and Ginder Singh had pellets seen in
         his dead body, such description of the weapon sowed the seeds of
         suspicion in the mind of the learned Sessions Judge. It was at best either a
         case of a mistaken perception or flash impression that Nirmal Singh, un-        F
         disputably being a licensee of a rifle, had that rifle. Finding the description
         of the weapon being in discord with medical evidence, the learned Sessions
         Judge found the prosecution case not proved against Nirmal Singh ac-
         quitted accused. Here even though the learned Judge did not extend the
         benefit of doubt to Nirm.al Singh in so many words, his approach is an .
         exercise in that direction. The acquittal of Nirmal Singh too would cause G
         no affectation to the prosecution case as a whole.

              For the views afore-expressed and the totality of the circumstances,
         we do not think that in the instant case the maxim f alsus in 1mo f alsus i11
         omnibus is attracted. The large number of participants in the occurrence
         would, at some place or the other, leave a place for entertaining some          H
    584                    SUPREME COURT REPORTS           [19911. SUPP. 1 S. C.R.

A doubt. But here the prosecution case as a whole remains strong supported
    as it is by the indepenaent evidence of P.Ws 18 and 19, the neighbours, and
    the occurrence having taken place in the house of the complainant party.

          It was next contended that the prosecution has cocealed its own
   guilty part and has not explained the way the injuries were caused to Major
B Singh Deceased and to Naib Singh appellant. The argument'is barely to be
   noticed and rejected; Significantly Jugraj Singh in the First information
   Report specifically mentioned that the injuries to Major Singh deceased
   and Naib Singh appellant were as a result of the doings of accused persons
   themselves and in the circumstances narrated above all the eye witnesses
   have cogently and consistently deposed to that effect. The findings of both
C the courts below are that the occurrence took place in the courtyard of the
                                                                                     -
   outer house of the complainant party. Blood stained earth was collected
   from four places therein during investigation. Time of the occurrence being
   8.00 a.m. and the inmates of the house being busy with their daily chores
   leaves one to pose the question as to why should the complainant party
   anticipate an assault and be ready with fire-arms to put them to use. It does
D not stand to reason that the complainant party having licensed weapons, if
   anticipating an assault, to ~ not kept the same ready for use. The fact
   that these licensed weapons of the complainant party are not shown to
 · have been used by itself goes a long way to establi.sh that the injuries
   received by Major Singh deceased and Naib Singh appellant were acciden-
   tal and suffered in the manner as suggested by the prosecution. On this
E score also we 1emain unconvinced of the argument.
          Having examined the prosecution case as finally establisheQ at the
    level of the High Court and having seen the reasoning of the Court of
    Session in acquitting the four accused, and also for the reasons set out
    above, we go to hold the appeal to be devoid of merit and accordingly
F   dismiss the same. The appellants are on bail. They are required to sur-
    render to their bail bonds forthwith.

    .R.P.                                                    Appeal dismissed .