Gurbachan Singh and anr. vs State of Punjab

S.D. Bajaj, J.

Balkar Singh son of Hari Singh accusedappellant was murdered on February 5, 1985. Deceased Saidara Singh was convicted by the Sessions Court for the murder of Balkar Singh and was undergoing life imprisonment for it. In appeal the High Court admitted Sardara Singh to bail. While living in house No. 1608, Simlapuri, Ludhiana, after his release on bail as ordered by this Court, security proceedings had been taken by the police against Sardara Singh as also the rival party of accusedappellants and both the parties had been down to keep the peace and be of good behaviour.

On October 16, 1986 around 7.00 P.M. when Sardara Singh and his wife Kailash Kaur were returning to their Simlapuri residence from the house of Smt. Gurnam Kaur on Radhaswami Road at Ludhiana and had reached Gali No. 9 on Simlapuri Road, scooter driven by Hari Singh on the pillion seat of which his son Gurbachan Singh was seated, struck their moped from behind. Sardara Singh stopped his mooed and both the husband and wife got down therefrom. Hari Singh and his son Gurbachan Singh also alighted from their scooter after bringing it to a halt.

From the opposite side came a Rajdoot motorcycle driven by Mohan Singh. Avtar Singh son of Hari Singh was sitting on its pillion seat. Both of them got down from their motorcycle and all the four accused are alleged to have besieged Sardara Singh now deceased. His wife stood aside along with two chance witnesses named Bakhtawar Singh (elder brother of Sardara Singh deceased) and Piara Singh (mother''s brother of Kailash Kaur wife of Sardara Singh.

Gurbachan Singh was armed with a Datar. Avtar Singh with a Pump handle and their father Hari Singh carried a kirpan. Mohan Singh the fourth accused who has been acquitted by the learned trial court was empty handed. Out of the four Mohan Singh is attributed a lalkara only. Fatal blow on the head with his pump handle is attributed to Avtar Singh. Datar blow on the face is attributed to Gurbachan Singh and another Kirpan blow on the face is attributed to Hari Singh. Wife of the deceased named Kailash Kaur and other two chance witnesses in Bakhtawar Singh and Piara Singh are alleged to have seen the occurrence. Sardara Singh is alleged to have breathed his last on the spot.

On being charged with the commission of offences under sections 302. read with Section 34 of the Indian Penal Code, all the four accused pleaded not guilty and claimed to be tried. Vide its judgement, dated October 21, 1987, learned trial court acquitted Mohan Singh convicted the remaining three accused appellants of the commission of offences under section 302 read with section 34 of the Indian Penal Code and sentenced them to undergo life imprisonment and to pay a fine of Rs. 2000/ each. In default of payment of fine every one of the three accused appellants was individually ordered to undergo rigorous imprisonment for a further period of six months each. Feeling aggrieved therefrom the accused appellants have filed Criminal Appeal No. 562DB of 1987 in this Court.

We have heard Shri J. N. Kaushal, Sr. Advocate, with Shri Ashok Jindal, Advocate, for the appellants, Shri S. S. Kang, A.A.G. Punjab for the State and have carefully gone through the evidence on record.

Learned counsel for the appellants forcefully argued that admittedly there has been previous enmity between the accused and the deceased over the death of Balkar Singh son of accusedappellant Hari Singh and real brother of accusedappellants Avtar Singh and Gurbachan Singh and it is on account of the enmity aforesaid that all the three members of Hari Singh''s family have been named as accused in this case by the wife of the deceased. The argument is wholly without merit. Enmity is a double edged weapon. Dealing with it in Raghbir Singh v. State of U.P., AIR 1971 Supreme Court 2156 their lordships of the Supreme Court observed, "In cases where there is enmity between two factions then there is tendency on the part of the aggrieved victim to give an exaggerated version and to rope in even innocent members of the opposite faction in a criminal case. Therefore, the court has in all such cases to sift the evidence with care and convert only those persons against whom the prosecution witnesses can be safely relied upon without raising any element of doubt. On the present record there are a number of distinguishing features which have been noticed by the High Court and which rightly fixed the present appellant''s guilt beyond any reasonable doubt, the acquittal of his two coaccused on the basis of doubt notwithstanding. It may in this connection he pointed out that enmity may tempt a witness to rope in more persons belonging to the opposite faction, but it seldom if ever serves as an inducement to completely exclude the real guilty party". Wife of the accused cannot be expected to exclude the real gully party in the present case. Mohan Singh roped in additionally by her has since been acquitted by the learned trial court.

Secondly it was urged that Bakhtawar Singh, real brother of the deceased, is only a got up witness introduced by the police who was never present at the place of occurrence around 7.00 P. M. on October 16, 1986. The argument is again wholly without merit. According to witness, he had gone to the house of his brother around 6.45 P.M. on October 16, 1986 wherein Piara Singh was already waiting for the deceased, that on learning that deceased had gone to the house of Smt. Gurnam Kaur along with his wife both the witnesses (Bakhtawar Singh) and Piara Singh were returning therefrom and on the way back passed through Gali No. 9 and observed the occurrence around 7.00 P.M. on October 16, 1985. The explanation offered for the presence of the witness is most natural. Discussing the evidentiary value of the deposition of the chance witness, their lordships of the Supreme Court observed in Dargahi and others v. State of U.P., AIR 1973 SC 2695; Ashok Nathari Naik v. State of Maharashtra, 1983 Cr. L.R. (SC) 205 and Rana Partap and others v. Stale of Haryana, AIR 1983 SC 680"In the very nature of things the occurrence could have been witnessed by the persons going on that road. In a sense anyone going on the road in question at the time of occurrence would be a chance witness but the fact by itself would not be enough to discredit his testimony. The occurrence took place in the passage and the prosecution story that both these witnesses had come to witness the show and were therefore, at the material time going out after the show was over by the passage where the occurrence took place, is reliable. The expression chance witness" is ununderstandable. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house arc natural witnesses. if murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passers by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are merechance witnesses.'' To discard the evidence of street hawkers and street vendors on the ground that they are `chance witnesses'', even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence". Testimony of Bakhtawar Singh cannot, therefore, be brushed aside on this score.

Thirdly, it was urged that Kailash Kaur could not be expected to be travelling with the deceased on a moped at the relevant time and in case she was then with the help of real brother of the deceased and her own maternal uncle ought to have put up some resistance and tried to save her husband from the onslaughts of the accused. Deceased, as Already stated, had been bound down to keep the peace and be of good behaviour. Unarmed relations aforesaid could not possibly grapple with the armed accused who had besieged the victim. Speaking of interested and relation witnesses. the Supreme Court observed in Hari Singh v. State of U.P., AIR 1975 SC 1501; Sarwan Singh and others v. State of Punjab, AIR 1976 SC 2304 and Gopal Singh v. State of U.P., 1978 Supreme Court Cases (Crl) 378 as follows :

"The testimony of eyewitnesses cannot be rejected merely because they are interested and partisan witnesses. It is not the law that the evidence of an interested witness should be equated with that of a tainted evidence or that of approver so as to require corroboration as a matter of necessity. The evidence of an interested witness does not suffer from any infirmity as such but the Courts require as a rule of prudence, not as a rule of law that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the Court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corporation. Indeed there may be circumstances where only interested evidence may be available and no other, e.g. when an occurrence takes place at midnight in the house when the only witnesses who could see the occurrence may be the family members. In such cases it would not be proper to insist that the evidence of the family members should be disbelieved merely because of their interestedness. Relation witnesses shall be the least disposed to falsely implicate the appellant or substitute him in place of the real culprit.

Coherent, cogent and trustworthy account of the occurrence narrated by Smt. Kailash Kaur P.W. 2 and Bakhtawar Singh P.W. 3 having been duly corroborated by the expert medical opinion and the disclosures and discoveries pursuant thereto, there is nothing brought on record to discredit the prosecution evidence Criminal Appeal filed by the three accused appellants is thus rendered wholly without merit and is accordingly dismissed.