Jasbir Singh vs State of J&K

Kotwal, J.—This is appeal against judgment of learned Additional Sessions Judge, Jammu dated 11-12-2002 whereby appellant, Jasbir Singh

(A-l), has been convicted under Sections 302, 201, RPC and 4/25 Arms Act and appellant-Joginder Singh (A-2) under Sections 302/34, RPC

and order dated 12-12-2002 whereby A-1 has been sentenced to imprisonment for life under Section 302, RPC, imprisonment for one year and

fine of Rs. 500/- under Section 201, RPC and imprisonment for one year and fine of Rs. 200/- under Section 4/25 Arms Act and A-2 to

imprisonment for life under Sections 302/34, RPC. A-2 has died during pendency of this appeal.

Heard. We have perused the record.

Prosecution case is that on 11-10-1991 one Rashpal Singh alias Bablu (hereinafter to be referred as the deceased), a resident of village,

Malikpura, Tehsil, R. S. Pura, had come to attend the marriage ceremony of the daughter of one Pritam Singh at Camp Gol Gujral, Jammu. At

7.30 p.m. he after attending the wedding was on his way to the house of his Aunt (mother’s sister). When he reached near the shop of A-2,

A-2, his son, A-1 (Jasbir Singh) and one Harjeet Singh alias Koki (hereinafter to be referred as the co-accused) with a common criminal intention

because of a previous enmity made a murderous attack on him. A-2 and the co-accused caught hold of the deceased by his arms and A-l inflicted

blows on his person with a dagger. In his bid to save his life the deceased ran away and fell in the nearby canal. He crossed to other side of the

canal. A-1, A-2 and the co-accused also crossed the canal by using a ‘wooden poli’ available on spot and attacked the deceased once

again. This time A-2 caught hold of the deceased and A-l and the co-accused inflicted blows on him with a ‘kirch’ and a dagger. A-2

exhorted that the deceased should not escape alive. On hearing noise, S. Ragbir Singh (PW-3), his brother, S. Jaswant Singh (I’W-

4),Inderjeet Singh (PW-5) and some others came on spot and on seeing them the assailants ran away. PW-4 evacuated the deceased to hospital

at Jammu whereas PW-3 accompanied by Satinder Singh (PW-7) proceeded to Police Post, Pony Chak for lodging information. PW-3 lodged

verbal information of the incident which was entered as report No. 19 dated 11-10-1991 in the daily diary of the Police Post. On the basis of this

report, MR No. 162/1991 under Sections 307/34, RPC was registered at Police Station, Domana and investigation entrusted to Wazir Ahmed

Ganal, officer-in-charge, Police Post, Pony Chak. On the same day the deceased succumbed to his injuries in the hospital and the case was

converted to one under Sections 302 and 201/34, RPC and 4/27 Arms Act. In the course of investigation the Investigating Officer (I.O.)

proceeded to the hospital, took charge of the dead body of the deceased and dispatched it for post-mortem. He visited the place of occurrence

and prepared sketch-map of the crime scene. A-l and A-2 were arrested and on the basis of disclosure statement made by A-1 a ‘kirch’

was recovered on 23-10-1991 as the weapon of offence.

After complying with the formalities of the investigation Police preferred charge-sheet under Sections 302/34 and 201, RPC 4/27 Arms Act

against the accused A-l, A-2 and the co-accused, besides making a prayer for proceeding in terms of Section 512, Cr. P.C. against the co-

accused. The case after committal came up for trial before the learned Additional Sessions Judge, Jammu. Learned trial Court on examination of

the charge-sheet and record of the case framed charge under Sections 302/34, RPC against A-2 and under Sections 302/ 34, 201, RPC and 4/27

Arms Act against A-1. Both of them denied the charges and claimed to be tried. Prosecution thus entered its evidence and examined 11 witnesses.

Learned trial Court recorded statements of the appellants under Section 342, Cr. P.C. who in turn took the plea of alibi and alleged false

implication by the prosecution witnesses and produced three witnesses in defence. A-2 also entered the witness-box as his own witness. Learned

trial Court on appreciation of the evidence and record of the case found the appellants guilty and convicted and sentenced them.

Among other grounds, the baseline of appellants’ challenge to the impugned judgment is that learned trial Court has not properly

appreciated the evidence of the prosecution witnesses who are the family members of the deceased. It is contended that all the four eye-witnesses

produced before the trial Court by the prosecution are unworthy of credit not solely because they are family members of the deceased, but on

account of the inherent inter and intra contradictions in their versions and also on account of their being interested in prosecution and conviction of

the appellants.

It is noticed that in the list of witnesses given in the charge-sheet of the police, five, namely, S. Raghubir Singh (PW-3), S. Jaswant Singh (PW-

4), S inderjeet Singh (PW-5), S. Inder Singh (PW-6) and S. Satinder Singh (PW-7), have been cited as eye-witnesses of the occurrence,

whereas, three namely, S. Joginder Singh (PW-8), S. Bhopinder Singh (PW-9) and S. Kulbir Singh (PW-10), have been cited as circumstantial

witnesses. Out of the five eye-witnesses, four, who have been examined by the prosecution before the trial Court, that is, PWs 3, 4, 5 and 7

indisputably are close relatives rather family members of the deceased. PWs 3 and 4 are real paternal uncles of the deceased, whereas PW-5 is

the son of PW-3 and PW-7 is the son of PW-4. The fifth eye-witness, PW-Inder Singh, who seems not to be a close relative of the deceased,

was given up by the prosecution and not produced before the trial Court. Out of the three circumstantial witnesses, two, namely PW-8, who is

lather of the deceased and PW-10 have been product before the trial Court, whereas PW-9 has not been produced. The father of the deceased

(PW-8) as per his deposition before the trial Court was informed about the occurrence at 9.30 p.m. in his house at Malikpur, Tehsil R S. Pura. He

has nothing to say about the occurrence much less about involvement of the assailants. PW-10 as per his deposition had provided his vehicle No.

JKQ-7414 for evacuating the injured (deceased) who was not known to him, from the place of occurrence to the Government Hospital, Jammu

He had driven the vehicle and PWs-Jaswant Singh and Inderjeet Singh had accompanied the deceased to the hospital. The deceased was lifted

from a road in Gole Gujral. His evidence at the most corroborates the happening of the incident and the shifting of the deceased to the hospital.

The four eye-witnesses, who are family members of the deceased, produced by the prosecution before the trial Court have supported the

prosecution case. We may give brief resume of their depositions, however, shorn of what we feel is totally unessential

S. Raghubir Singh (PW-3) stated that occurrence took place on 11-10-1991 to 7.30 p.m. Deceased Rashpaul Singh alias Bablu had come in

the marriage ceremony of the daughter of Pritam Singh at Gole Gujra). After attending the marriage, he was going to the house of his Aunt (Maasi).

The appellants and accused-Harjeet Singh alias Koki were sitting in the shop of appellant-Joginder Singh. They attacked the deceased with a

common intention when he reached near that shop. Appellant-Joginder Singh and accused-Harjeet Singh caught hold of the deceased by both his

arms whereas appellant-Jasbir Singh (A-l), inflicted blows, firstly, in his chest and then in his abdomen with a dagger called ‘Kirch.’ In the

course of struggle the deceased escaped from their control and fell in the canal. He came out of the canal on us left side. The appellants and

accused-Harjeet Singh went to other side of the canal by crossing over by the wooden ‘poly’ and caught hold of the deceased there. They

caught him similarly from both his arms. A-l and accused-Harjeet Singh inflicted more blows with kirch each in their hands in the chest and

abdomen of the deceased. A-2 was exhorting that the deceased should not escape alive. All of them ran away from the spot alter the deceased fell

on the ground. PW lnderjeet Singh and PW Jaswant Singh evacuated the deceased to the hospital by truck No. JKQ 7314, whereas he and PW

Satinder Singh proceeded to the Police Post for lodging the report. On his verbal report, MR No 162/1991 under Section 307, RPC (Ex. PW

RS) was registered. Deceased died in the hospital. The appellants/accused were inimical towards the deceased and had killed him because of the

murder of Maan Singh, who was the maternal uncle of A-l, in March, 1990. In cross-examination he stated that he retired as Assistant Sub-

Inspector from the Police in 1984. He had fallen ill in 1985-86 and later in 1990. He had suffered paralysis in 1990 and was hospitalized for eight

days. He was in position to walk with the support of a stick by November-December, 1990. He had left his house at 5.00 and had reached the

house of wedding at 5.30 as he cannot walk fast. He had left the house of Pritam Singh at about 7.15. During winter it turns dark at 7.30 p.m. It

was not dark at the time of occurrence, sun was about to set and it had turned dark half an hour after the occurrence. There are residential houses

on the side of the road in which electricity was on though he does not remember whether electricity was on in the shops too or not. He had come

from the house of wedding by a path passing by Gurudwara Singh Sabha. He heard noise at (he time when he was standing near the shop of Ajab

Singh. He did not go to the place of occurrence but witnessed the occurrence from a distance of 5/7 steps. It is not correct that occurrence had

taken place exactly in front of the house of Rangil Singh whereas the truth is that the occurrence had taken place in front of the shop of Joginder

Singh. Two shops belonging to Balwant Singh, one belonging to Koki and another shop fall in between the shops of Rangil Singh and Joginder

Singh. Place of occurrence is a thoroughfare but not thickly populated. There are houses on both sides of the canal. Occurrence had taken place in

the centre of the road. His brother, Jaswant Singh, son, lnderjeet Singh, Nephew, Satinder Singh and one Inder Singh s/o Gopal Singh r/o

Malakpur were also standing with him at the shop of Ajab Singh. Ajab Singh also sits at that shop. Shop of Ajab Singh is adjoined by the house of

Sujan Singh and Jaswant Singh.

S. Jaswant Singh (PW-4) stated that occurrence took place on 11-10-1991. He had gone in the marriage ceremony of the daughter of Pritam

Singh at Gole Gujral. Rashpaul Singh had also come in that marriage. At 7.30 p.m. Rashpaul Singh was returning to his house. He along with

lnderjeet Singh were standing near ‘Tarlokpur Poli’ when Rashpaul Singh reached near the shop of Joginder Singh. There was a noise and

he and lnderjeet Singh went running to the place of occurrence. Joginder Singh was catching hold of Rashpaul Singh. Jasbir Singh was holding a

‘kirch’ in his hand and Harjeet Singh alias Koki was holding a dagger. Jasbir Singh and Harjeet Singh inflicted injuries on chest and

abdomen of Rashpaul Singh with ‘kirch’ and dagger. Rashpaul Singh managed to escape and jumped in the canal. Joginder Singh exhorted

that Rashpaul Singh should not escape alive and caught hold of him after crossing the canal. Jasbir Singh and Joginder Singh again inflicted blows in

the abdomen of Rashpaul Singh with ‘kirch’ and dagger. He also went on spot after crossing over by a ‘Poli.’ Rashpaul Singh had

fallen down and accused ran away. A number of persons comprising of Raghubir Singh, lnderjeet Singh etc. collected there. They evacuated

Rashpaul Singh to the hospital by vehicle No. JKQ-7414 but he died immediately after reaching in hospital. In cross-examination, he has stated

that there are 8-10 shops in Gole Gujral which are run by Jaswant Singh, Jai Singh, Rangeel Singh, Sadhu Singh, Labh Singh, Ajab Singh,

accused-Joginder Singh and others. These shops remain open up to 9.00 p.m. During those days he used to drive vehicle No. JKU-4871, which

is a National Permit Vehicle. He had his meals in the house of wedding at 4.30 and after that returned to his house. His son PW-Satinder Singh

had also gone in the house of wedding. He had heard the noise at Tarlokpur Poli, which falls towards opposite side from the house of wedding.

Tarlokpur Poli falls towards Gho Manhasan whereas his house falls towards Talah Tillo. A path to his house from house of wedding comes via

Tarlokpur Poli also. None other than Inder Singh s/o Gopal Singh was standing with him at ‘Tarlokpur Poli.’ There were some passersby

and persons other than him and Inder Singh had also heard the noise. 10-20 other persons had also reached on spot. Occurrence had taken place

on a thoroughfare. It took him 3 minutes to reach at the place of occurrence from Tarlokpur Poli and he had reached on spot first of all.

Occurrence had taken place in front of the shop of Joginder Singh. Some passersby and shopkeepers had reached on spot. Raghubir Singh was

also there. Some injuries had been inflicted on the deceased before his reaching there and some were inflicted in his presence. He rescued the

deceased from the accused and in spite of that deceased jumped into the canal. Joginder Singh caught hold of the deceased again when he had

reached near the house of Kulbir Singh s/o Kartar Singh. At that time accused inflicted 5-6 blows on the deceased, 2-3 by Jasbir Singh and 2-3

by Joginder Singh and the deceased fell down. House of Sujan Singh is also located there. It was slightly dark at the time of occurrence and

electric bulbs were on the nearby 4-5 poles. Shops were open and light from those shops were also coming. A person could have been identified

from a distance of 20-30 yards.

lnderjeet Singh (PW-5) has stated that occurrence took place on 11-10-1991 at 7.30 p.m. He was standing on ‘Poli Gole Gujral.’

Joginder Singh and Koki had caught hold of Rashpaul Singh and Jasbir Singh inflicted blows with a kirch on his abdomen and caused injuries to

him. The deceased escaped from the accused and jumped into a canal. The accused, however, reached other side of the canal before the

deceased reached there. Joginder Singh caught hold of the deceased and Harjeet Singh and Jasbir Singh inflicted grievous injuries on him with

kirch and dagger. Accused-Joginder Singh exhorted that deceased should not escape alive. Rashpaul Singh enquired as to why they want to kill

him and on this Jasbir Singh replied that they will not spare him alive as he has committed murder of their maternal uncle. After inflicting injuries on

the deceased, accused ran away. Deceased was evacuated to hospital where he succumbs to his injuries. In cross-examination, he stated that

during those days he used to drive vehicle No. JKQ-9277. We 3-4 persons were present at the place of occurrence but others including Kulbir

Singh had come on spot after the occurrence. We had not tried to rescue the deceased for the reason that accused were having daggers in their

hands. However, injuries had been inflicted before their reaching on spot. He was standing at a maximum distance of 20 ft. from the place of

occurrence. Raghubir Singh was also standing on the road as he was having his routine work. It is not correct that he was not present at the place

of occurrence. He has himself witnessed the occurrence. He has no and never had any enmity with the accused.

Satinder Singh (PW-7) has stated that occurrence had taken on 11-10-1991 at 7.15 p.m. There was marriage of the daughter of Pritam Singh

in his house at Camp Gole Gujral. He was collecting and preserving the articles in the house of wedding and in that course he heard noise. He

came to the spot from where noise was coming. He saw that the accused were inflicting blows with a kirch and dagger on Bablu in his abdomen

and chest. Accused-Jasbir Singh was holding a dagger and the accused who has absconded was holding a kirch. Accused-Joginder Singh was

holding Bablu from back side. Bablu escaped from clutches of the accused and ran to other side of the canal. Accused also crossed the canal and

caught hold of him again. Joginder Singh again caught Bablu from behind and exhorted that kill him he should not escape alive. Accused-Jasbir and

the one who has absconded once again inflicted blows with kirch and dagger in the chest and abdomen of Bablu. Bablu suffered grievous injuries

and fell on the ground. Accused ran away. Besides him, lnderjeet Singh, Jaswant Singh and Raghubir Singh had also witnessed the occurrence.

They raised a noise and the accused ran away. Jaswant Singh and lnderjeet Singh evacuated Bablu to hospital and in the meantime he and

Raghubir Singh lodged report at the Police Post. In cross-examination he has stated that name of his twin brother was Sher Singh, who has passed

away. He is called as Sardool Singh in his house. He has read up to 4th standard and in the school record his name perhaps is recorded as

Sardool Singh. It, however, is not correct that the name of his twin brother was Satinder Singh. His brother Sher Singh was alive at the time of

occurrence. Electric light was on at the time of occurrence but the night had not yet set on. 3-4 shops of the accused are located at the place of

occurrence. They work on two shops. There are some other shops also which fall at a distance of 25-30 yards from the shops of the accused. The

intervening distance between the house of wedding and the place of occurrence is 40-50 yards. When he reached on spot, Raghubir Singh,

lnderjeet Singh and Jaswant Singh were already standing there. Inder Singh was also present there at some distance. None of us had intervened

out of fear. Accused inflicted blows on Bablu within 2-4 seconds and ran away.

Contextually, we may refer to the evidence of Dr. Annayatullah Sheikh, Assistant Professor, Forensic Medicines, Medical College, Jammu,

who conducted post-mortem on the dead body of the deceased on 12-10-1991 at 11.00 a.m. and issued post-mortem report, which he has

proved before the trial Court as Ex. PW-AS. Following injuries were found on the dead body ;

6 incised punctured wounds in front of the right side of the chest around nipple over in area of 6 ""Each injury was 1.5 cms. x ½ cms. x 7.5

cm. deep into the chest (lungs).

Incised punctured wound on supra sternal notch 1.5 cm. x ½ cm. x 2 cm. into the chest.

Two incised punctured wounds on the right second space 3.5 cm. lateral to mid line 1.5 cm x ½ cm. x 2.5 cm. entering the interior wall of

heart.

Incised punctured wound on the middle right lower costal margin 1.5 m. x ½ cm. x 4. 5 cm.

Incised punctured wound on the left mid lower costal region 1.5 cm. x ½ cm. into the interior wall of the stomach.

Incised punctured wound in the left lumber region 1.5 cm. x ½ cm. x 3 cms. into the kidney.

Incised punctured wound in the left lumber region posteriorly 1.5 cm. x ½ cm. x 1 cm. into kidney.

Incised punctured wound on left leg below knee 1.5 cm. x 1 x 2 cm.

Incised punctured wound in the right lumber back 2.5 cm. x 1 cm x 3 cm.

The Doctor also found that ‘internally right lung was ruptured. Left lung collapsed. Wounds in the lungs directed back right into the lungs,

while No. 3 led into the heart cavity. 2.5 liter of blood was present in chest cavity and 1.5 ML in pericardium. Stomach contained undigested, rice

food about liter with no characteristic spell.' In the opinion of the Doctor :

cause of death in this case was haemorrhage and shock due to rupture of lungs and heart. The cause of death about 18 hours.

The Doctor also opinioned that injuries to the deceased could have been caused by the weapon (mark-A) which was shown to him by the

police on 19-11-1991.

We find unanimity in the evidence of the four eye-witnesses that on 11-12-2012 the deceased who was a resident of a village, Malikpur in

Tehsil R. S. Pura had come to attend the wedding of the daughter of one Pritam Singh at Camp Gol Gujral, Jammu. All the four eye-witnesses had

also attended that marriage and that the deceased had left the house of wedding in the evening after the wedding ceremony was complete. As per

the evidence of PW Doctor Annayat ullah Sheikh, who conducted autopsy on the dead body of the deceased on 12-10-1991 at 11 a.m., the

deceased died homicidal death at sometime after he had left the house of wedding. As many as nine incised wounds were found on the body of the

deceased, his right lung was ruptured and left lung had collapsed, the wounds had gone deep into the lungs and the heart cavity and cause of death

was rupture of lung and heart. Evidence to this extent is not under challenge in this appeal and we could have found no substance in the challenge,

had there been any. We accept the evidence to this extent without any hesitation and any discussion.

To connect the appellants and the co-accused with the act causing death of the deceased, that is, waylaying and stabbing him to death,

prosecution mainly relied upon the direct evidence of aforementioned five eyewitnesses, one of whom, however, was not produced before the

Court, besides other corroborating/connecting evidence.

We have accorded our consideration to all the important grounds which were urged before us at bar by Mr. Sakai Bhushan, Advocate,

learned counsel for the appellants. We heard Mr. Bhushan and Mr. Sanjeev Padha, learned Government Advocate, at length. We are taking up all

the grounds which were urged before us at bar.

Appreciation of evidence of the eye-witnesses

Mr. Sakai Bhushan, learned counsel for the appellants, while not disputing that evidence of prosecution witnesses who are closely related to

the victim can be relied upon, argued that learned trial Court has not applied settled principles applicable in dealing with evidence of close relatives

of a victim of offence. Mr. Bhushan would say that close relatives of the victim are partisan witnesses as they are interested in conviction of the

accused and success of the prosecution case and quite often make exaggerated version of the occurrence and even falsely implicate a person who

is not connected with commission of the offence. Their evidence is required to be scrutinised with great care and caution which the learned trial

Court has not done in this case inasmuch as learned trial Court has not given true and complete resume of their depositions in the judgment and has

ignored important intra and inter contradictions in the evidence which were spelt out by the defence in a tabulated form before the learned trial

Court. Mr. Bhushan read out the evidence before us and sought to highlight, what he called, grave and serious contradictions in the evidence and

also sought to point out similar contradictions in the deposition of PW-3 made in the Court and the contents of the FIR lodged by him. Per contra,

Mr. Sanjeev Padha, learned Government Advocate supported the judgment of the trial Court and argued that evidence has been properly

appreciated by the learned trial Court.

In relying upon the evidence of PWs. 3, 4, 5 and 7, who are the family members of the deceased, learned trial Court has taken the view that if

a related witness is available at the time of occurrences and has seen I he occurrence he is the best witness and can be safely relied upon.

It has quite often been pointed out in various decisions of the Supreme Court and the High Courts and has rather developed as a settled

principle that close relatives of the victim of an offence, especially victim of murder, generally would not screen the real culprit and drag in innocent

persons. Generally the close relatives of the victim of a heinous offence like murder have an urge to see that the real culprit is arrested and brought

to justice. The theory that the close relatives of the victim of an offence are partisan witness was replied by the Supreme Court as early as in Dalip

Singh and Ors. v. State of Punjab, AIR 1953 SC 364. It has been laid down as under :

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means

unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to

screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is

a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism

and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping

generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before

us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the

witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course, that can be done. But the basis for such a

conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law

as in the case of accomplices.

Recently in Nagappan v. State, Inspector of Police, AIR 2013 SC 3298 the Supreme Court after surveying a series of decisions on the point

including that in Dalip Singh’s case has in the judgment dated 17 July, 2013, held as under :

As regards the first contention about the admissibility of the evidence of PW-1 and PW-3 being closely related to each other and the deceased,

first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and not

supported the case of the prosecution. The prosecution heavily relied on the evidence of PW-1, PW-3 and PW-10. The trial Court and the High

Court, in view' of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without

considerable contradiction as claimed by their counsel. This Court, in series of decisions, has held that where the evidence of ""interested witnesses

is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested

witnesses. In other words, relationship is not a factor to affect credibility of a witness, (vide Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC

364; Guli Chand & Ors. v. State of Rajasthan (1974) 3 SCC 698 : AIR 1974 SC 276; Vadivelu Thevar v. The State of Madras, AIR 1957 SC

614; Masalti & Ors. v. State of U.P., AIR 1965 SC 202; State of Punjab v. Jagir Singh & Ors. (1974) 3 SCC 277 : AIR 1973 SC 2407; Lehna

v. State of Haryana (2002) 3 SCC 76; Sucha Singh & Anr. v. State of Punjab (2003) 7 SCC 643 : 2003 (6) JT SC 348 : (AIR 2003 SC 3617);

Israr v. State of U.P. (2005) 9 SCC 616 : (AIR 2005 SC 249); S. Sudershan Reddy & Ors. v. State of A.P. (2006) 10 SCC 163 : AIR 2006

SC 2716 and Abdul Rashid Abdul Rahiman Patel & Ors. v. State of Maharashtra, JT2007 (9) SC 194 : (2007 AIR SCW 4576); Waman and

others v. State of Maharashtra (2011) 7 SCC 295 : (AIR 2011 SC 3327); State of Haryana v. Shakuntla and others (2012) 5 SCC 171 : (AIR

2012 SC 2123); Raju alias Balachandran & Ors. v State of Tamil Nadu, 2012 (11) Scale 357 : (AIR 2013 SC 983); Subal Ghorai & Ors. v.

State of West Bengal (2013) 4 SCC 607 : (2013 AIR SCW 3627).

Plea of false implication by close relatives of the victim of offence, therefore, can not be entertained unless a strong and convincing indication in

this regard is available from their evidence on the record of the case Near relationship of an eye-witness of an offence with victim of the offence

per se is not a ground for branding him as interested witness and discarding or giving less importance to his evidence on that score alone. What is

required, however, is that evidence of close relatives of the victim is scrutinised and considered with great care to rule out any impression of false

implication. The basic thing to be determined by the Court while dealing with the evidence of a close relative of victim of a heinous offence when

produced as eye-witness of the occurrence would be whether the witness is reliable and trustworthy. The witness must inspire the confidence of

the Court. The Court, having regard to facts and circumstances of the case and other evidence, must feel satisfied that the witness was actually

present at the scene and could have and had seen the occurrence in the manner and to the extent as stated by him in his deposition before the

Court and rule out the possibility of the witness having been implanted for proving or supporting the case. If such a witness is found reliable and

trustworthy his evidence can be safely relied upon and made basis of conviction of the accused. We agree with the view taken by the learned trial

Court to the extent that if a close relative is available at the time of occurrences and has seen the occurrence he is the best witness and can be

safely relied upon but we would hasten to add that Court must be satisfied about the presence of such a witness at the place of occurrence and

having seen the occurrence and even after that his evidence must be considered with great caution and care to rule out any exaggeration and

ascertain that he or she has stated the whole truth.

We have carefully read and analysed the depositions of the four eye-witnesses, compared them with each other and weighed them in their

totality. We may reiterate that the trial Court has relied upon the evidence of all the four eye-witnesses. We have noticed that all the four witnesses

in their chief-examination have deposed identically in a way as if entire incident was witnessed by each of them but on analysing their versions in

light of the clarifications made by them in the cross-examination we have arrived at a conclusion that it was PW-3, Raghbir Singh who alone had

witnessed the entire incident whereas the other three had rushed to the place of occurrence on hearing noise and could not have witnessed the

entire incident in the manner as stated by them.

PW-3, who is a paralytic person, has explained as to how he had reached at the place of occurrence at 7.30 p.m. after having left the house of

wedding at 7.15 p.m. We find no reservation in believing that he was present at the place of occurrence before and all along the incident. Having

been asked by the defence, he in his cross-examination has explained that he had witnessed the incident from a distance of 5-7 steps as he was

standing near the shop of Azab Singh. We have noticed the location of the shop of Azab Singh at point No. 9 in the sketch map of place of

occurrence (Ex. PW-SP) prepared by the I.O. and have no hesitation in believing that the entire incident could have been seen by him from that

place. We do not find any substance in the point raised by learned counsel for the appellants that PW-3 in his cross-examination after having said

that he was standing outside the shop of Azab Singh has admitted that shop of A-2, that is, the place of alleged occurrence does not fall in the way

while going to his house from the house of wedding. We have read this part of cross-examination in context of the entire deposition and in light of

the sketch map in which shop of A-2 is shown at point No. 16 and having done so we cannot entertain any doubt about presence of PW-3

outside the shop of PW Azab Singh and having witnessed the entire incident from that place. We have accorded our consideration to, what were

said to be, the contradictions in the depositions of eye-witnesses as they were pointed out before the trial Court and have found no substance in

them insofar as the truthfulness and trustworthiness of the deposition of the PW-3 is concerned and we are-satisfied that truth and the whole truth

has been stated by him.

We find valuable corroboration to the evidence of PW-3 in the contents of the FIR (Ex. PW-RS) which was registered on the basis of the

information lodged by him immediately after the occurrence. We have noticed with interest that it was PW-3 who, in spite of being a paralytic

person had immediately after the occurrence proceeded to the Police Post for lodging the FIR, which confirms that he alone had witnessed the

entire incident and rules out possibility of any design to fabricate a case against the appellants and the absconded accused. Had it not been so there

cannot be any other plausible reason for his going to the police post for lodging the report. The information that was lodged by PW-3 at the Police

Post is in consonance with the version given by him before the trial Court and thus not only corroborates the said version but lends sense of

authenticity to the same.

One of the contentions that was urged at Bar by Mr. Bhushan to assail the evidence of PW-3 is that in his cross-examination he had admitted

that he did not mention the name of any prosecution witness in the FIR lodged by him hut the FIR (Ex. PW-RS) does contain the names of PWs.

4, 5 and 7. We, however, do not find any substance in this contention. It hardly needs to be stated that contents of the FIR, if proved by the

prosecution, can be used for corroborating or contradicting the evidence of its author given before the Court as a prosecution witness. It is

important to note that in his chief examination before the Court, PW-3 does not seem to have stated as to who else was present or had reached at

the place of occurrence. Nonetheless, he stated that lnderjeet Singh and Jaswant Singh (PWs. 5 and 4) evacuated the deceased to the Hospital

and he and Satinder Singh (PW-7) proceeded for lodging the report. What is safely discernible from his deposition in chief examination is that

PWs. 4, 5 and 7 had also reached on spot though it is not clear as at what point of time each one of them had reached there. It is, however, in the

cross-examination that PW-3 also stated that his brother, Jaswant Singh, son, lnderjeet Singh, nephew, Satinder Singh and one Inder Singh s/o

Gopal Singh were also standing with him at the spot of Azab Singh. What is stated in the FIR is that on hearing the noise Jaswant Singh, lnderjeet

Singh and others also came on spot and the accused ran away. Jaswant Singh and lnderjeet Singh evacuated the deceased to the hospital and he

proceeded for lodging the report. We are unable to find any material contradiction in the deposition before the Court and the statement given in the

FIR in regard to presence of witnesses at the place of occurrence as sought to be made out by the appellants’ counsel as a ground to assail the

evidence of PW-3.

Appellants have assailed credibility and value of the evidence of PW-3 also because of, what is alleged, his physical incapacity during the days

of alleged occurrence. Mr. Bhushan argued that PW-3 has admitted l hat he suffered stroke of paralysis in the month of June, 1990 and even while

deposing as prosecution witness before this Court in the month of December, 1993 he was unable to keep standing and had sought permission to

take a chair so his presence on spot or having witnessed the incident in the late evening of the month of October is highly doubtful. We have

accorded our consideration to this aspect. We, as mentioned above, are not persuaded to entertain any doubt about his presence at the place of

occurrence or having witnessed the incident. In any case there is no doubt about his having lodged the FIR about the incident and having regard to

the promptness in lodging the FIR and its contents we cannot but believe that the FIR could have been lodged only by a person who had

witnessed the incident. It has abundantly come in the evidence that it was not much dark inasmuch as lights were on in the houses and shops

around the place of occurrence. We find no reason for not believing in the say of the witness that he had suffered paralytic attack in June, 1990

and was in position to walk by the month of November/December, 1990. In any case occurrence had taken place more than a year after the

month of June, 1990.

We are, thus, satisfied and entertain no doubt about the presence of PW-3 at the place of occurrence and his having witnessed the entire

incident and having given its true account firstly, while lodging the FIR before the Police and secondly, in his deposition before the trial Court. We,

however, find sufficient reason to believe that PWs. 4, 5 anti 7 would have taken some time in reaching at the place of occurrence and could not

have witnessed the entire incident and from their depositions we cannot make it possible to ascertain as at what point of time they had reached

there. We have noticed in the depositions of PWs. 4 and 5 that they were standing near ‘Tarlokpur Poli’ and had gone to the place of

occurrence on hearing noise. No ‘poli’ called as ‘Tarlokpur poli’ is depicted in the sketch map of the place of occurrence though one

‘wooden poli’ is shown at point No. 10 that exits almost at the place of occurrence just in front of the shop of Azab Singh. In cross-

examination PW-4 has explained that ‘Tarlokpur poli’ falls towards Gho-Manhasan from the house of wedding and his house falls towards

Talab Tillo and that it took them three minutes to reach at the place of occurrence from ‘Tarlokpur poli.’ The clear indication, thus, is that

after hearing the noise at the Tarlokpur Poli PWs. 4 and 5 would have taken some time to reach at the place of occurrence and could not have

seen the entire incidence. It being not possible to say as at what point of time they had reached on spot, their evidence has no value more than to

corroborate the evidence of PW-3.

Evidence rendered by PW-7, Satinder Singh is no different than that of PWs. 4 and 5 and deserves no better treatment and value. As per his

say, he had heard the noise in the house of wedding and intervening distance between the two places is 40 to 50 yards. We, therefore, are unable

to rely upon the evidence of PWs. 4, 5 and 7 insofar as it relates to role of the appellants and the co-accused though we can safely say that all the

three had reached on spot on hearing the noise, two of them had evacuated the deceased to the hospital and one had accompanied PW-3 to the

Police Post for lodging the FIR.

We find yet another reason for not accepting the evidence of PWs.4, 5 and 7 in regard to the genesis of the incident and roll of appellants and

the co-accused. We have noticed with concern and curiosity that there is nothing in their evidence that they had made any effort to save the life of

the deceased who was a younger member of their family. One of them, PW-5 rather has stated in the cross-examination that they had not tried to

come to the rescue the deceased for the reason that accused were having daggers in their hands. We wonder as to how three able bodied elders

of a family would tolerate a younger member of the family being stabbed to death in their presence firstly, on one side of the canal and then on the

other without making any effort to intervene. Presence of daggers in the hands of the accused cannot justify total inaction on the part of family

members and the only plausible explanation would be that they had not reached before the ghastly act was completed. Similar view, however,

cannot be taken in regard to PW-3 as he is an old and paralytic person in his mid sixties.

Medical Evidence and Recovery of weapon

The evidence of PW-3 is fully corroborated by the medical evidence provided by PW Dr. Anayat-Ullah Sheikh, who in his deposition before

the trial Court has proved the post-mortem report (Ex. PW-AS) prepared by him. We on the basis of the evidence of PW-3 read with the

evidence of the doctor are in a position to draw a conclusion in regard to involvement of the appellants in causing death of the deceased by

stabbing him when he was on his way back from the house of Pritam Singh after attending the wedding of his daughter in the evening on 11-10-

1991. We, however, have found more corroborative evidence in recovery of the weapon of offence on the basis of disclosure statement of A-l

and opinion of the doctor that injuries found on the body of the deceased could have been caused by such a weapon.

We may take up evidence relating to discovery of the weapon of offence said to have been used by A-l on the basis of a disclosure statement

made by him on 23-ID-199 1. This statement has been proved before the trial Court by PW-4, who is a marginal witness to the disclosure memo

(Ex. PW-JS/ 2). He has stated in this regard that the accused were arrested by the police 5/6 days after the occurrence. He had gone to the Police

Station where Jasbir Singh (A-l) had stated that the weapon of offence has been concealed by him in bushes near his house which he can get

recovered. Jasbir Singh had then got the weapon recovered accordingly. The other witness to the disclosure statement as also the recovery of the

weapon is PW-5, lnderjeet Singh. According to PW-5, he and PW-4 had gone to the Police Post on 23-10-1991. A-l had stated that he has

concealed the ‘kirch’ in bushes adjoining his house which he can produce and after that A-1 had brought out a ‘kirch’ from the

bushes adjoining his house. The witness has proved the contents of disclosure memo (Ex. PW JS/2) and recovery memo (Ex. PW RS/7). PW-3 is

the other witness to the recovery memo. According to him on 23-10-1991, SHO. Domana had brought A-l in custody to his house at Camp Gol

Gujral and A-1 had brought out a ‘kirch’ from bushes near his house. He also identified the said ‘kirch’ before the trial Court which

was brought out from a sealed cover stating further that this was a dagger in the shape of a ‘kirch with which A-l had inflicted injuries on the

deceased. This ‘kirch’ at that time was marked as ‘A.’ Evidence of PWs. 3 and 5 read with the recovery memo (Ex. PW-RS/7) and

‘supardnama’ (Ex. PW-RS/6) would show that the weapon which was a dagger in the shape of a ‘kirch’ after its recovery was

sealed at the place of recovery by using a ring. Evidence of Doctor Annayat-Ullah Sheikh who conducted post-mortem on the dead body of the

deceased read with certificate (Ex. PW-AS-II) issued by him would show that the weapon of offence was shown to him by the police on 19-11-

1991 and on examining the weapon, he had opined that injuries found on dead body of the deceased could have been caused by this weapon.

In regard to the use of aforementioned weapon in causing injuries found on the dead body of the deceased, contention of the appellants is that

the trial Court has not properly appreciated the evidence of Dr. Annayat-Ullah Sheikh. Mr. Bhushan, learned counsel for the appellant sought to

point out that the doctor in his cross-examination has stated that the weapon when it was produced before him on 19-11-1991 was not sealed and

submitted that if the weapon was sealed at the time of its recovery on 23-10-1991 and was forwarded to FSL in sealed condition on 13-12-1991

then which was the weapon that was produced in unsealed condition before the doctor on 19-11-1991. Mr. Bhushan thus argued that the weapon

that was produced before the doctor on 19-11-1991 was not the one said to have been recovered on the basis of disclosure statement of A-1 on

23-10-1991 and the opinion of the Doctor in regard to the weapon seen by him has no legal value vis-a-vis A-l.

We have accorded serious consideration to aforementioned contention of the appellants and argument of Mr. Bhushan. Correct it is that Dr.

Anayat-Ullah Sheikh in closing part of his cross-examination has stated that ‘there was no blood stain on the weapon of offence produced by

I.O. on 19-11-1991 as per Ex. PW-AS/II. It was also not sealed when presented to him.’ We, however. are not inclined to accept the

version of the doctor insofar as it says that the weapon when produced before him was not sealed because it is contrary to the certificate (Ex. PW-

AS/II) which was issued by him after examining the weapon produced before him on 19-11-1991. We reproduce verbatim the certificate issued

by the Doctor on 19-11-1991 :

SI Nazir Ahmed, P/S Domana brought the sealed alleged weapon of offence, sketched at A, sealed and signed by me thereafter.

Opinion Yes could be possible

Sd/-

19-11-1991

(underlining by us)

The certificate issued by the doctor and duly proved by him, obviates any doubt in regard to the fact that the weapon produced before him on

19-11-1991 was in a sealed condition. What is clear from the certificate is that the weapon was in a sealed condition and was sealed again under

the signature of the doctor after its examination. It needs to be pointed out that in order to contradict the certificate issued by the doctor with what

he stated in the cross-examination the defence was required to draw the attention of the doctor to what was recorded by him in the certificate

which, however, was not done.

Another contention of the appellants is that there is no scientific evidence in regard to use of the weapon, said to have been recovered on the

basis of disclosure statement of A-l, in inflicting the injuries found on the person of the deceased. Mr. Bhushan sought to point that no blood stain

was found on the weapon by the doctor when the weapon was produced before him on 19-11-1991 and as per the FSL report produced by the

prosecution stain on the weapon was insufficient for test purposes and that finger prints from the recovered weapon were not taken. Mr. Bhushan

thus argued that recovery of weapon has no legal value as it cannot be linked with the injuries found on the person of the deceased.

True it is that the forensic examiner was unable to put the stain, whatsoever, on the recovered dagger (kirch) to chemical analysis due to their

insufficiency for the purpose. In the result it could not be ascertained whether there was some human blood stain on it or not. However, it is not

sine qua non for proving homicidal death by stabbing that the weapon of offence after its recovery must bear stain of human blood on it. There can

be many reasons for the weapon bearing no stain or the stain found on it being insufficient for chemical analysis. Such reasons are linkable with gap

of time between the commission of offence and recovery of the weapon. Place of recovery may also have its effect. Factors like rain or human act

like deliberate washing of the weapon are some important factors in this regard. Recovery of weapon from an open place after ten days of

commission of offence can well justify lack or insufficiency of blood stain on the weapon of offence. We would, therefore, reject the contention that

lack of blood stain on the weapon recovered on the basis of disclosure statement of A-l would rule out the possibility of the same having been used

for causing injuries on the person of the deceased or will dilute or render useless the opinion of the doctor that injuries found on the person of the

deceased could have been caused by the said weapon.

Appellants have assailed the prosecution case and evidence on the grounds also that motive has not been proved and what has been alleged as

motive for the murder of the deceased as a matter of fact was the motive behind false implication of appellants. Contextually, it is contended that

the specific plea of alibi and false implication taken by the appellants has not been accorded proper consideration by the learned trial Court and the

defence evidence including statement of A-2, as his own witness have been totally ignored. In support of these contentions, Mr. Bhushan read over

to us the statement of A-2 and sought to explain that PW-4, Jaswant Singh and some others were accused of murder of one Maan Singh who was

brother-in-law of A-2 and maternal uncle of A-1, A-1 was a prosecution witness in that case. The persons accused in that case including Jaswant

Singh were detained in Central Jail, Jammu. They wanted that A-l somehow is imprisoned in that Jail so that he can be pressurised to make a

statement in their favour.

It needs to be noticed that PW Jaswant Singh is the real paternal uncle of the deceased. It was not the defence plea before the trial Court that

Jaswant Singh or some other accused of the Maan singh murder case had got the deceased stabbed with the purpose of falsely implicating A-l to

engineer his arrest and detention in the Central Jail, Jammu so that he is pressurised to make a statement in their favour in Maan Singh murder case.

Such a plea would have been preposterous. Plea offered through the statement of A-2 is that A-l, A-2 and the co-accused were falsely dragged in

the murder of the deceased which in turn may mean that they were falsely dragged to engineer the arrest and detention of A-l to pressurise him to

make a statement in favour of the accused in the case involving murder of Maan Singh. Such a plea is no less preposterous and deserves no

discussion and outright rejection because it is not expected that the family members of the deceased would have screened the real culprit of the

murder of their family member. The theory of false implication does not inspire any confidence when it is noticed that A-2 in his cross-examination

has stated that in Maan Singh murder case A-l had made statement in favour of the accused of that case under pressure and they were acquitted. If

it was so where was the necessity of the prosecution witnesses including PW Jaswant Singh deposing against the appellants in this case. We would

thus feel no hesitation in taking a view that plea of false implication is based on highly flimsy and preposterous basis and was rightly rejected by the

learned trial Court.

We, however, do not feel necessity of going into and giving much importance to the objection relating to motive because the motive becomes

immaterial when facts proved before the Court are clear. It is well settled by a series of decisions of the Supreme Court that in cases based on

eye-witness account of the incident proof or absence of a motive is not of any significant consequence. If, however, motive is proved it would

provide additional support the prosecution version. Legal position in this regard is well settled and we may, however, refer to Bhim Singh v. State

of Uttarakhand, 2015 AIR SCW 1118, where their Lordships in para 14 of the reporting, while referring to Mulakh Raj v. Satish Kumar, AIR

1992 SC 1175, have reiterated that ‘when facts are clear, it is immaterial whether motive was proved. Absence of motive does not break the

link in chain of circumstances connecting the accused with the crime.’

We may deal with the plea of alibi that was taken before the trial Court and has been put forth by the appellant in this appeal. The trial Court

has discarded the plea of alibi. The Latin word alibi means ""elsewhere."" Question of alibi arises when an accused takes recourse to a defence line

that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have

participated in the commission of offence. The basic law in a criminal case is that the burden is on the prosecution to prove that the accused was

present at the scene and has participated in commission of offence. The plea of the accused in such cases need be considered only when the

burden has been discharged by the satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who

adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the

presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the

Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence

adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at

the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. In such circumstances,

the burden on the accused is rather heavy. (Ref. Gurpreet Singh v. State of Haryana (2002) 8 SCC 18 : (AIR 2002 SC 3217); S. K. Sattar v.

State of Maharashtra (2010) 8 SCC 430 : (AIR 2010 SC 3320) and Jitender Kumar v. State of Haryana (2012) 6 SCC 204 : (AIR 2012 SC

2488).

We have carefully read and accorded our consideration to the defence evidence including the deposition of A-2 in his capacity as a witness.

We could not find anything of that value in the defence evidence which may overweigh the evidence of PW-3 and exclude the presence of the

appellants and the co-accused at the place of occurrence and their involvement in the incident or even to cause any doubt in this regard. The

evidence is not stronger than a plain denial and not sufficient to prove or improbablise the absence of the appellants and the co-accused at the

place of occurrence at the time of commission of the offence.

Yet another contention that was raised at bar is the non-production of PW Inder Singh. Mr. Bhushan argued that prosecution has deliberately

withheld PW Inder Sigh who was the only ‘independent’ witness of the incident and cannot succeed on the basis of the evidence of close

relatives who are ‘interested’ witness. Learned counsel argued further that the witness was simply given up by the prosecutor on the ground

that he was won over by the other side without producing him in the witness-box and giving the defence opportunity to cross-examine him, which

has caused prejudice to the defence.

A witness may be called ‘interested’ witness only when he or she derives some benefit from a particular result of a litigation in a civil

case, or in seeing an accused person punished. On the other hand an ‘independent’ witness does not have anything invested in the outcome

of a case, meaning that the witness will not profit from the results of the case. He is interested neither in decree or dismissal in civil litigation nor

conviction or acquittal in a criminal case. A witness, who is a natural one and is the possible eye-wit ness in the circumstances of a case cannot be

said to be ‘interested.’ As discussed in detail above, PW-3 undoubtedly is an eyewitness of the incident, his presence at the place of

occurrence has been satisfactorily explained in his cross-examination. Even though he and the other three eye-witnesses are the family members of

the deceased, we have found no reason to suppose, much less to be satisfied that they would falsely implicate the appellants and the co-accused

even at the cast of screening the real culprit. PW-3, therefore, cannot be categorized as an interested witness and in that it cannot be said that

prosecution has preferred to produce interested witnesses.

True it is that prosecution has held back PW Inder Singh, who seems not to be a relative of the deceased, without producing him before the

trial Court for the reason that he was won over by the defence. Holding back or not producing an eye-witness before the Court in itself, however,

cannot knock down the prosecution case and weaken or render useless the evidence produced before the Court. What is important is to ascertain

whether the evidence produced before the Court is reliable and trustworthy or not. In this regard Supreme Court in State of Himachal Pradesh v.

Gian Chand (2001) 6 SCC 71 : (AIR 2001 SC 2075), has held that the Court has first to assess the trustworthiness of the evidence adduced and

available on record. If the Court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though

there may be other witnesses available who could also have been examined but were not examined. However, if the available evidence suffers

from some infirmity or cannot be accepted in the absence of other evidence which though available has been withheld from the Court then the

question of drawing an adverse inference against the prosecution for non-examination of such witnesses may arise.

For all that said and discussed above, we do not find any merit in the grounds on which the appellants have assailed the impugned judgment.

We may reiterate that the evidence of PW-3, Raghubir Singh, is wholly reliable and trustworthy and corroborated by the medical evidence and the

FIR lodged by him is sufficient to prove that the deceased was stabbed to death by A-1 Jasbir Singh. In that act he was similarly joined by the co-

accused, who has absconded and was assisted by A-2 (now dead). The judgment rendered by the trial Court, therefore, does not deserve any

interference in appeal.

Viewed, thus, this appeal is dismissed as without any merit and conviction and sentence recorded by the learned trial Court are upheld.

Reference for confirmation of the sentence stands answered accordingly.

Bail bonds of appellant No. 1 are cancelled. He shall surrender before the trial Court on 10-3-2016 and the trial Court shall take follow up

action to execute the sentence.

Registry shall send a certified copy of this judgment to the trial Court along with record of the case and the trial Court shall proceed to execute

the sentence.