State (Delhi Administration) vs Narain Singh And Ors.
2007 Latest Caselaw 712 Del

JUDGMENT

P.K. Bhasin, J.

1. This appeal is preferred by the State against the judgment dated 03-06-1989 passed by the learned Additional Sessions Judge, Delhi in Sessions case No. 440/1988 arising out of FIR No. 200/1984 pertaining to police station Narela whereby all the four accused persons, who are now the respondents in this appeal and were tried for the offences under Sections 302 read with Section 34 IPC, Section 452 read with Section 34 IPC, Section 324 read with Section 34 IPC and Section 323 read with Section 34 IPC have been acquitted of all these charges.

2. The prosecution case against the four acquitted accused Narain Singh, Ram Chander, Attar Singh and Smt. Phulo @ Phulwati was that they had killed Karan Singh who was the brother of accused Attar Singh, Narain Singh and PW-10 Amar Singh. These four brothers had some ancestral properties in village Jathkore in Delhi and a family partition had taken place. However, accused Attar Singh and Narain Singh were not satisfied with that family partition and because of that their relations with their brother Karan Singh were strained. PW-10 Amar Singh was married but had no issue. He along with his wife was living with the deceased Karan Singh. Wives of Karan Singh and Amar Singh are sisters. Accused Attar Singh and Narain Singh apprehended that Amar Singh would give his properties to his brother Karan Singh or his children and so they had a grudge against Karan Singh. It is the further prosecution case that on 28.08.1984 at about 5.30 p.m. when Karan Singh (the deceased) was going to take bath in the courtyard (bagar) of his house accused Narain Singh armed with a two pronged jelly, accused Attar Singh armed with a lathi, accused Ram Chander, who is the brother-in-law of accused Narain Singh, also armed with a lathi and Narain Singh's wife Smt. Phulo carrying a gandasi came out of their house to the courtyard of Karan Singh and at that time accused Narain Singh told Karan Singh 'aaj Amar Singh ki jaidaad day detain hain' (they would give him property of Amar Singh that day) and saying so accused Narain Singh gave a jelly blow on the chest of Karan Singh upon which Karan Singh went inside his room. Accused Attar Singh and Ram Chander followed him inside where Attar Singh gave a lathi blow on the right shoulder of Karan Singh, accused Ram Chander gave a lathi blow on his right hip. Then Karan Singh came out of the room towards the 'sehan' when accused Phulo gave two gandasi blows on the head of Karan Singh. When PW-10 Amar Singh, his wife Smt. Chameli (PW-13), Karan Singh's wife Dhanpati(PW-14) and Karan Singh's daughter Omwati (PW-15) tried to intervene and save Karan Singh, accused Attar Singh and Ram Chander gave lathi blows to Chameli and Ram Chander gave a lathi blow on the knee of Smt. Dhanpati also. Attar Singh hit on the leg of PW-10 Amar Singh with his lathi and Ram Chander gave a lathi blow on his shoulder. Narain Singh gave a jelly blow on the right hand of Amar Singh. Karan Singh died at the spot itself and all the accused persons fled away from there. Accused Phulo threw her gandasi in the bagaar before going away from there. On being informed of the incident the police came to the place of occurrence. PW-10 Amar Singh gave his statement Ex. PW-10/A in which he narrated the afore-said facts. The investigating officer (PW-20) seized the blood stained gandasi (Ex. P-1) from the spot and also held inquest proceedings. FIR No. 200/84 was registered at 9 p.m. same day. The police arrested all the four accused persons and after completing the usual investigation it filed a charge-sheet against all of them in the court. After the committal of the case to Sessions Court all the four accused were charged under Sections 452/34 IPC, 323/34 IPC, 324/34 IPC and 302/34 IPC. All the accused had pleaded not guilty and claimed to be tried.

3. The prosecution examined 20 witnesses for establishing its case against the accused persons. In their statements recorded under Section 313 Cr.P.C. the accused persons denied the prosecution allegations in toto and alleged false implication. Regarding the partition of properties accused Attar Singh claimed that he had got his share in the land and other properties but the other three brothers had remained joint and no partition had taken place between them. He admitted that Narain Singh was also living along with Amar Singh and Karan Singh. He pleaded that his brother Amar Singh was a characterless man and that once when his two sons had fallen ill Amar Singh, in his absence, had not given proper medicine to them and, therefore, they died. He also claimed that once Amar Singh had tried to molest his wife in his absence and on that account she had become a TB patient and later on died and when he remarried Amar Singh started harassing his second wife also and on that account he (Attar Singh) had separated. He further claimed that the wife of Amar Singh also used to cut the hair of his children many times and for all these reasons the witnesses had deposed falsely. Another plea taken by him was that in 1972 he had purchased a plot with his own money and he constructed the house thereon also with his own funds but that house was in the name of all the brothers and he was not given any share on partition in that house. Accused Ram Chander claimed that at the time of alleged incident he was, in fact, on duty at Faridabad and from his place of work he had gone straight to his house which was also in Faridabad.

He was on duty from 10 a.m. to 5 p.m. on 28-8-84 and it takes about 2 and 2' hours to reach village Jathkore (where the deceased was living) from Faridabad. Accused Phulo admitted that Attar Singh, Karan Singh, Narain Singh and Amar Singh were having agricultural land in village Jatkore and also that Amar Singh was the eldest brother and had no issue. She also claimed that the families of Karan Singh, Narain Singh and Amar Singh were living jointly while Attar Singh had already separated. On the day of incident she was inside her room along with her son who was hardly 20 or 25 days old at that time and so she was not aware of the incident as was being claimed by the witnesses. Accused Narain Singh has claimed that he was working at the shop of Dr. Sumer Singh in Peeragarhi those days and he used to go their in the morning and come back in the evening and at the time of the alleged incident he was not present at the place of occurrence.

4. The accused persons had also examined eleven witnesses in defense.

5. The learned Additional Sessions Judge after examining the prosecution evidence including that of the four eye witnesses, out of whom three were also injured in the same incident, did not find the same to be reliable at all and consequently he did not consider it necessary to examine the defense evidence which had been adduced in support of the pleas of alibi taken by some of the accused and finally passed the impugned judgment acquitting all the four accused persons of all the charges which had been framed against them. While discarding the evidence of the eye witnesses the learned trial Judge had observed that their evidence could not be relied upon since all of them had made parrot-like statements of the incident. Learned trial Judge also held that from the evidence of police witnesses it was also apparent that the incident had not taken place at about 5.30 p.m. as claimed by the four eye witnesses and, in fact, it appeared to have taken place before 2 p.m. and that showed the falsity of the version of the incident given by the eye witnesses.

6. The State could not find the acquittal of the accused persons to be palatable and, therefore, this appeal was filed assailing the correctness of the findings of the learned Additional Sessions Judge primarily on the ground that the trial Court was not at all justified in discarding the testimonies of the injured eye witnesses on the ground that they had all made parrot like statements about the incident and that the acquittal of all the accused persons (the respondents herein) had resulted in grave miscarriage of justice. Arguing in support of this appeal the learned Additional Public Prosecutor had submitted that the reasoning given by the learned trial Judge for totally rejecting the evidence of all the four eye witnesses for the afore said reason relying upon a Short Note of a judgment of a Single Judge Bench of this Court reported in 1976 Rajdhani Law Reporter (SN-6), Sultan Singh etc. v. State is perverse and similarly it had also been wrongly concluded by the trial Court that the incident had taken place prior to 2 or 3 p.m. on 28-08-84.

7. On the other hand, learned Counsel for the four acquitted accused persons while not disputing the fact that the deceased Karan Singh had died a homicidal death strongly supported the judgment of acquittal and contended that there was no perversity in the reasons given by the trial Court while acquitting the accused persons. It was also contended that the learned trial Judge had the advantage of watching the demeanour of the so called eye witnesses and so the reasoning given for discarding their evidence ought to be accepted by this Court and even if this Court finds that another view could have been taken on the same evidence the judgment of acquittal cannot be reversed unless this Court gives a finding that the view taken by the trial Judge was not a possible view at all on the basis of evidence adduced before it and in the facts of this case it cannot be said that the view taken by the trial Judge was not a possible view. Learned Counsel also contended that the ocular evidence in this case was contrary to medical evidence and, therefore, the evidence of the eye witnesses cannot be accepted simply for the reason that they claim to have been injured in the incident when, in fact, it has not been shown by the prosecution they had sustained any serious injury and their MLCs show that all of them had sustained minor injuries which could very well be self-inflicted in order to implicate the accused persons as even according to these witnesses themselves the relations between the two sides were strained over properties. So, just because of the fact that the eye witnesses had some injuries on their bodies their evidence could not be accepted blindly for that reason alone. Learned Counsel also supported the other reasons given by the trial Judge for discarding their evidence and the entire prosecution case in general.

8. This being an appeal against acquittal of the accused we can reverse the judgment of acquittal only if the view of the trial Judge is perverse, not reasonably possible and suffers from manifest illegalities which conclusion we can arrive at after re-examining and reassessing the entire prosecution evidence and go into all questions of fact and law and reach to our own conclusion. Regarding the scope of the powers of the Appellate Court while dealing with an appeal against acquittal the Hon'ble Supreme Court in Labh Singh v. State of Punjab had held as under:

It is now well settled that the powers of the High Court...while hearing an appeal against an acquittal are as wide and comprehensive as in an appeal against a conviction. It has full power to reappraise the entire evidence upon which the order of acquittal was based and to reach its own conclusion. But before reversing an order of acquittal it should endeavor to displace or dispel in a general or specific way the primary reasoning of the Trial Court upon which the acquittal is founded, paying due regard and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses and the value of their evidence; (2) the initial presumption of innocence in favor of the accused, a presumption certainly not weakened by his ac quittal at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses

9. Now in the light of above guidelines laid down by the Apex Court we shall examine the evidence on record to find out if the death of Karan Singh was caused by the accused persons as claimed by the four eye witnesses. However, before we undertake that exercise it may be observed here that the learned Counsel for the respondents- accused had not disputed before us that the death of Karan Singh was homicidal which fact is even otherwise amply established from the evidence of the autopsy surgeon PW-19 Dr. L.T. Ramani. This witness had noticed the following external injuries on the body of the deceased at the time of post-mortem examination:

1. Laceration 2" long placed anterior-posteriorly on the right parietal area of scalp.

2. Laceration 1" x 3/10' x involving hard thickness of the scalp, running anterior-posteriorly over fronto-parietal area to the left of mid line.

3. Bruise reddish in colour with abrasions on the right shoulder region. Size 2' x 1'.

4. Reddish bruise 4' x " on the left arm middle on the outer aspect. Margins were bright and central area was pale, which was " wide.

5. Two parallel bruises each 2" long with the pale central area of " width, present on the right side of waist, 2' above the iliac crest.

6. A bruise bluish in colour of 2" x " size on the left side of back of chest 2' below the inferior angle of scapula. Injury was horizontally present.

7. An incised wound " x ", horizontally placed at the level of nipple 2' medial to the left nipple. Medial end of the wound was acutely cut and lower margin was abraded.

8. Incised wound " x " x ' placed horizontally on the front of chest just to the left of Xiphoid process. Outer (right) end was tapered and margins were regular.

PW-19 gave his opinion that all injuries were ante-mortem and injuries No. 1 to 6 were caused by blunt weapon whereas injuries No. 7 and 8 were caused by sharp edged weapon, which the prosecution is claiming to be the jelly used by accused Narain Singh. He further opined that injuries No. 7 and 8 were sufficient to cause death in the ordinary course of nature and the death was due to shock and haemorrhage resulting from injuries and time since death as about 18 hours. He had deposed that he had conducted the post-mortem examination on 29-08-84 at about 11.45 a.m. It is, thus, clear from the evidence of PW-19 that Karan Singh was murdered.

10. We now proceed further to consider the ocular evidence of the incident relied upon by the prosecution. The prosecution is relying upon the evidence of four injured eye witnesses, namely, PW-10 Amar Singh, PW-13 Smt. Chameli, PW-14 Smt. Dhanpati and PW-15 Ms. Omwati. PW-10 Amar Singh deposed that he had got agricultural land in village Jat Khore. He also deposed that they were four brothers, namely, Attar Singh, Karan Singh, Narain Singh and himself out of whom he was the eldest. He further deposed that three to four years earlier to the date of occurrence there was a partition amongst all the four brothers in respect of their properties. He was married but without any issue. His wife and the wife of his brother Karan Singh were real sisters. Accused Attar Singh and Narain Singh were not very happy over the partition because they apprehended that he would bequeath his agricultural land either to Karan Singh or his children. On 28-08-84 when Karan Singh after coming back from his office duty at 5.30 p.m. had put off his clothes to take bath in 'Bagar' (courtyard) accused Narain Singh armed with a two pronged jelly, his wife Smt. Phulo armed with a gandasi, Attar Singh and Ram Chander armed with lathies came to the courtyard (Bagar) and at that time accused Narain Singh shouted at Karan Singh (the deceased) saying 'AAJ TUJHE AMAR SINGH KI JAIDAD DE DETE HAIN'. Thereafter Narain Singh gave a jelly blow on the chest of Karan Singh on which Karan Singh rushed inside the room. He also deposed that accused Ram Chander and Attar Singh followed him inside the room and accused Attar Singh gave a lathi blow on the shoulder of Karan Singh while accused Ram Chander gave a lathi blow on his waist after which Karan Singh came out of the room. He further deposed that Smt. Phulo gave two or three gandasi blows on the head of Karan Singh from its blunt side. At the time of the incident he himself was present at the place of occurrence which was witnessed by his wife Smt. Chameli and Karan Singh's wife Smt. Dhanpati and his daughter Om Wati. They had tried to intervene and save Karan Singh but the accused Narain Singh gave a jelly blow on his (Amar Singh's) right hand whereas accused Attar Singh gave a lathi blow on his leg and accused Ram Chander gave a lathi blow on his shoulder. Ram Chander gave a lathi blow to Dhanpati also on her knee and Attar Singh and Ram Chander gave lathi blows to Smt. Chameli on her hand and leg. This witness further deposed that Karan Singh after receiving injuries fell on the charpoi lying in the 'Bagar' and died there itself and all the accused persons ran away from there and while running away Phulo had thrown her gandasi in the courtyard (Bagar). After a short while police reached there and recorded his statement Ex. PW-10/A and he along with his wife and the wife of Karan Singh were sent for medical examination. He also deposed about the police taking into possession the gandasi Ex. P-1 from the spot.

11. In the cross-examination of PW-10 it was suggested to him on behalf of the accused that the occurrence had not taken place on account of any partition but the same took place on the question of providing any passage to the Chaubara of Narain Singh. It was further suggested to PW-10 that he had illicit relations with the wife of the deceased Karan Singh and for that reason there was a quarrel between him and Karan Singh on the day of occurrence and at that time he and Karan Singh had jellies and the jelly of Karan Singh had caused the injury on his shoulder and further that he had also given a jelly blow on the chest of Karan Singh and in order to save himself he had falsely implicated the accused persons. This suggestion was also refuted by the witness. In cross- examination PW-10 had also claimed that accused Ram Chander had told him that he should transfer his lands in favor of Narain Singh and Attar Singh otherwise they would kill him. It was also suggested to PW-10 that the injuries on his person and the injuries sustained by Chameli and Dhanpati were self-inflicted with a view to implicate the accused persons falsely in this case. That suggestion was also denied by the witness. Another suggestion put to PW-10 and which was also denied by him was that he had found the dead body of Karan Singh lying in the house on the day of occurrence when he had come back from the field and then he along with Chameli and Dhanpati had decided to implicate the accused persons falsely to get their lands.

12. This version of the incident given by PW-10 Amar Singh was fully corroborated by the other three eye witnesses, namely, PW-13 Smt. Chameli, PW-14 Smt. Dhanpati and PW-15 Omwati all of whom have narrated the incident leading to the death of Karan Singh, injuries to them at the hands of accused persons. To PW-13 Smt. Chameli it was suggestion to her in her cross-examination that Karan Singh had received injuries in the afternoon and at that time they (the eye witnesses) were not present at their house. It was also put to her that she had inflicted injuries on her person sometime in the morning in order to become an eye witness she denied these suggestions. PW-14 Smt. Dhanpati while narrating the incident in the manner deposed to by the other two eye witnesses also claimed that the accused persons wanted the share of Amar Singh in his properties and they used to threaten that if they could not get his share they would kill Karan Singh and others. It was suggested to the witness in cross- examination that Amar Singh was arrested by the police for committing the murder of first wife of Narain Singh. It was also put to this witness that they had themselves caused minor injuries on their person to become witnesses and on the next morning of the incident they had decided to implicate the accused persons.

13. The learned Counsel for the respondents did not dispute before us that all the four eye witnesses were consistent on all the material aspects of the incident but at the same time he contended that the very fact that they had all given identical statements about the incident it was clear that they were not truthful witnesses and learned trial Court had rightly rejected their testimonies for this reason. This is what the learned trial Judge has observed in para No. 5 of his judgment while dealing with the evidence of the four eye witnesses of the incident:

The relevant incident had allegedly taken place on 28.8.84 at about 5.30 p.m., in the courtyard of the house of the deceased Karan Singh, situated in the village Jathkor within the jurisdiction of P.S. Narela, Delhi. PW 10 Amar Singh, PW 14 Smt. Dhanpati and PW 15 Ms. Omwati respectively happen to be the elder brother, widow and daughter of the deceased Karan Singh. PW 13 happens to be the wife of PW 10 Amar Singh. PW 10 Amar Singh his wife PW 13 Smt. Chameli, PW 14 Smt. Dhanpati and her daughter PW 15 Ms. Omwati had been residing in the same house of the deceased Karan Singh. Therefore, each one of the PW 10 Amar Singh, PW 13 Smt. Chameli, PW 14 Dhanpati and PW 15 Ms. Omwati had been a natural and probable witness of the relevant incident which had allegedly taken place in the courtyard of their house. Each one of PW 10 Amar Singh, PW 13 Smt. Chameli, PW 14 Smt. Dhanpati, PW 15 Ms. Omwati has well supported the prosecution case. No contradiction or variance, on any material point, has appeared in the statements of these witnesses. Their statements, on almost all material points, are so similar that they appear to have deposed in a parrot like manner. This gives rise to the suspicion that they might have been thoroughly tutored. It has been held in 1976 R.L.R. (Note 6), by our own Hon'ble High Court that where the prosecution witnesses have deposed in a parrot like manner then, the accused persons should not be convicted. So, it will not be safe for us to rely upon the parrot like statements of PW 10 Amar Singh, PW 13 Smt. Chameli, PW 14 Smt. Dhanpati and PW 15 Ms. Omwati and to convict the accused persons.

14. The Short Note of a judgment of a Single Judge Bench of this Court 1976 RLR SN 6 which has been relied upon by the learned trial Judge is also being reproduced here:

One Har Lal had married more than once and he had a number of sons of whom appellants and Dhan Singh were not on good terms. Har Lal got his property registered in the name of Sultan Singh. Dhan Singh was in possession of the same and Sultan Singh litigated with him in order to eject him but failed. Har Lal was badly injured by some persons in the Bazar on 14.3.74. Dhan Singh lived nearby and he claimed to have seen appellants give lathi blows to Har Lal and that the appellants had then come to his house also and beat him. 2 constables were on patrol duty at some distance. On learning of the violence one of them rang up the police station saying that some Gujars were beating Har Lal and F.I.R. was recorded accordingly. Trial court believed prosecution version and convicted appellants. Some P.W.s had turned hostile and were cross-examined.

It was held that the P.W.s had given their statements in identical manner in a parrot-like way. This indicated that they had been tutored. The earlier version of Dhan Singh linking Sultan Singh with the crime may be to get rid of him because of property dispute with him. That F.I.R. stated that Gujars were quarreling in the Bazar and all these indicate doubtful nature of prosecution story. The appellants should not have been convicted. Appeal allowed.

15. From a reading of this Short Note of the judgment it is clear that the publisher has not published the judgment but has only given its own understanding of the decision. We are surprised that the learned Additional Sessions Judge relying upon the afore-quoted publisher's note only of a judgment had come to a conclusion that whenever witnesses of an occurrence make consistent statements their evidence becomes unreliable. We do not approve of the decision of the learned Trial Judge in this regard which has been taken without even caring to have the full text of the judgment before him. Even otherwise we are of the view that evidence of injured eye-witnesses cannot be dubbed as unreliable if they support each other's version of the incident on all material aspects. It is not the requirement of criminal law that there should be at least some inconsistencies in their statements so as to instill confidence in the mind of the court. This kind of a reasoning can never be upheld. Had the eye witnesses of the present case given tutored version there were good chances of their faltering in cross-examination. However, here we find that despite gruelling cross-examination by the defense counsel none of them could be shaken. We make no bones in observing that the evidence of all the four eye witnesses is wholly reliable and trustworthy.

16. Learned Counsel for the respondents had also contended that the trial Court has acquitted them not only for the reason that the eye witnesses have made parrot-like statements in Court but it has also taken into consideration other flaws in the prosecution evidence which not only made the evidence of the four eye witnesses but the entire prosecution case in general also highly doubtful and so giving of benefit of doubt to the accused cannot be said to be unjustified. In this regard learned Counsel drew our special attention to that part of the judgment of the trial Court where the learned trial Judge has found that the prosecution case that the incident had taken place at 5.30 p.m. on 28-08-84 was not correct. The learned trial Judge while holding so has referred to the evidence of police witnesses PW-6 constable Ram Dutt, PW-18 constable Gopi Chand and the investigating officer PW-20 SI Mahender Singh. PWs 6 and 18 had deposed in their respective examination-in-chief that on 28-08-84 they had taken the dead body of Karan Singh to the mortuary of Police Hospital for post- mortem examination. In the cross-examination of PW-18 it was elicited from him that the dead body was deposited in the mortuary at about 2 or 3 p.m. on 28-08-84. Relying upon this part of the statement made by PW-18 that the dead body had been deposited in the mortuary between 2 or 3 p.m. on 28-08-84 the learned trial Judge came to a conclusion that the evidence of the eye witnesses to the effect that the incident had taken place around 5.30 p.m. on 28-08-84 became doubtful since the dead body could not have been deposited in the mortuary at about 2 or 3 p.m. if the incident had, in fact, taken place at about 5.30 p.m. as claimed by them. Learned Counsel for the respondents fully supported this reasoning of the trial Judge. However, in our view merely on the basis of the statement of PW-18 in his cross-examination that he had deposited the dead body in the mortuary on 28-08-84 at about 2 or 3 p.m. it could not be concluded at all that the incident had not taken place at around 5.30 p.m. as deposed by the eye witnesses. The witness was deposing in Court after about two years of the incident and so he might not have remembered the exact time when he had removed the dead body from the spot and deposited it in the mortuary. The learned trial Judge was not justified in arriving at the afore-said conclusion by simply picking up one sentence from the evidence of this constable. The Court has to see the totality of the evidence and no capital can be made by referring to only some part of the evidence of a witness. The trial Judge should have examined the entire evidence and we are sure that if that had been done he would not have reached the conclusion that the murder had taken place before 2 p.m. In fact, we find from the judgment that after noticing the statement of PW-18 and giving the said finding the learned Judge negatived his own finding when he relied upon the statement of the autopsy surgeon Dr.L.T.Ramani to the effect that the dead body was received in the hospital at 6.45 p.m. on 28/08/84 and observed that the statement of this doctor was to be preferred being an independent witness. Even otherwise the statement of PW-18 that dead body was deposited in the mortuary at about 2 or 3 p.m. on 28/08/84 could not be said to be correct as according to Dr. Ramani time since death was found to be about 18 hours. He had conducted the post-mortem examination on 29-08-84 at about 11.45 a.m. It is clear that the death of the deceased must have taken place around 5.30 p.m. on 28-08-84 as claimed by the eye witnesses and what was stated by PW-18 in cross-examination was not correct.

17. Another reason given by the trial Judge for not accepting the prosecution case is that PW-19 Dr. L.T. Ramani had stated in cross-examination that the inquest papers had been received in the hospital on 29-08-84 at 11.35 a.m. Placing reliance on this statement of Dr. Ramani the learned trial Judge came to the conclusion that if actually the accused persons were the assailants and the police had come to know about that on 28-08-84 itself then there was no justification for the investigating officer to have kept the inquest papers with him and not depositing the same along with the dead body in the mortuary on 28/08/84 showed that the same were actually not prepared on 28-08-84 since the correct facts about the incident were not with the investigating officer that day and it was only in the morning on 29-08-84 that the investigating officer in connivance with the complainant party decided to implicate the accused persons falsely and then all the documentation was done and even the formal FIR was also got ante-timed to show that it was registered on 28-08-84 at 9 p.m. For this conclusion the learned trial Judge also referred to the statement of the police official who had registered the FIR of this case i.e. 200/84, namely, PW-3 HC Dharam Vir who claimed in examination-in-chief that FIR of this case was registered at 9 p.m. and in cross-examination he stated that the next FIR No. 201/84 was recorded at 9.40 p.m. on 29-08-84. The learned trial Judge held that since the FIR No. 201 was recorded on 29-08-84 at 9.40 p.m. the police had sufficient time to manipulate the facts during the long gap between the registration of the last FIR of 28/8/84 and the first one of 29th and it was only after a decision had been taken to falsely implicate the four accused that the FIR of this case was formally written on 29-08-84 but it was shown to have been recorded on 28-08-84 at 9 p.m. In our view, even if the inquest papers had not been deposited in the mortuary along with the dead body on 28-08-84 that fact by itself was not sufficient to hold that till the morning of 29-08-84 the investigating officer was not aware of the names of the assailants. We find this conclusion of the learned trial Judge also to be absolutely unjustified and appears to have been arrived at without noticing the contents of the investigating officer's application Ex. PW-19/B vide which the dead body of the deceased was deposited in the mortuary on 28-08-84. A perusal of this application of the investigating officer, on the basis of which only the autopsy surgeon had claimed that the dead body had been received in the mortuary on 28/08/84 and the inquest papers had been received on 29/08/84, shows that the investigating officer had mentioned the names of all the accused persons as the assailants in the said application which fact rules out the possibility of any kind of manipulation or ante-timing of the FIR. Since the said application of the investigating officer had been given at the time of deposit of the dead body of the deceased in the mortuary and it contained the names of the respondents- accused as the killers there was no occasion for the investigating officer to have manipulated any facts or documents on 29-08-84 as has been held by the learned trial Judge. In the facts and circumstances of this case there was no possibility of arriving at the conclusion that the FIR in the present case was ante-timed or that till the morning of 29-08-84 the four eye witnesses had not named the respondents herein as the killers of Karan Singh.

18. As noticed already, in the cross-examination of PW-10 Amar Singh it was suggested to him on behalf of accused Attar Singh that the occurrence did not take place on account of any partition as claimed by him but the same took place on the question of providing any passage to the Chaubara of Narain Singh and it was also suggested to PW-10 that on the day of the incident there was, in fact, a quarrel between him and the deceased Karan Singh because of his having illicit relation with the wife of Karan Singh and that at the time of that quarrel both of them had jellies and it was he (PW-10) who had inflicted injury on the chest of Karan Singh with the jelly and Karan Singh had also caused injury on his shoulder with the jelly which he was having. From this suggestion put to PW-10 it at least becomes clear that the accused did not dispute the fact that there was an incident of stabbing in the house of Karan Singh at the time as claimed by PW-10 and that in that incident Karan Singh was inflicted injury on his chest with a jelly. Now, if it was PW-10 who had done that, as was suggested to him on behalf of the accused then the accused persons would have reported the matter to the police since the deceased was their close relative. That was not done and this shows that the accused had taken a false plea which circumstance also shows the guilty mind of the accused persons.

19. The evidence of four eye witnesses is in our view both individually and cumulatively sufficient to hold that the incident in question did take place in the manner deposed to by them. Their evidence does not require any corroboration from any other source. Yet, we find sufficient corroborative evidence also brought on record by the prosecution. The first piece of corroborative evidence is the evidence of the autopsy surgeon Dr. L.T. Ramani and his post-mortem report. The injuries noticed by him at the time of post-mortem examination of the dead body of the deceased reference to which we have already made fully support the version of the incident given by the eye witnesses. The evidence of the three out of four eye witnesses also gets corroborated from the injuries on their own bodies also which they claim to have received at the hands of the accused persons in the same incident. Learned Counsel for the respondents did not dispute the fact that three eye witnesses had some injuries on their bodies when they were got medically examined by the police but his submission was that the doctor had opined those injuries to be simple and so the possibility of those injuries being self-inflicted could not be ruled out and it had been suggested to the witnesses also in their cross-examination. There is no doubt that it was suggested to the injured witnesses that they had themselves inflicted injuries on their bodies to falsely implicate the respondents-accused but in our view it cannot be accepted that the three injured eye witnesses, all of whom are closely related to the accused persons, would have inflicted injuries on their bodies to falsely implicate the accused persons. In any case, we are accepting the testimonies of the injured eye witnesses not only because they are injured eye witnesses but otherwise also we find their evidence to be wholly truthful and reliable. They would not have let off the real killers and falsely implicated their own near and dear ones.

20. The further corroboration of the evidence of the four eye witnesses is available from the evidence of recovery of the gandasi Ex. P-1 from the place of occurrence. All the eye witnesses have deposed that when after the incident the accused persons had fled away from the spot accused Phulo had thrown the gandasi at the spot itself and the same was later on seized by the police when it reached the spot. The recovery of gandasi from the place of occurrence is spoken to by the investigating officer also. In cross-examination of the investigating officer the recovery of the gandasi from the place of occurrence found lying near the dead body was not disputed. Dr.Ramani was shown that gandasi for his opinion and during his evidence Dr. Ramani has claimed that the injuries noticed by him on the skull of the deceased could be caused with the blunt side of the gandasi Ex. P-1. This part of the statement of Dr. Ramani was not challenged in his cross-examination on behalf of the accused.

21. The prosecution is also relying upon the recovery of one blood stained shirt Ex. P-4 at the instance of accused Narain Singh pursuant to his disclosure statement Ex. PW-16/A. PW-20 SI Mahender Singh has deposed about that recovery and about its seizure vide memo Ex. PW-16/B. That shirt was got recovered by accused Narain Singh from a room in his own house. PW-16 ASI Mahak Singh has also deposed about the recovery of blood stained shirt at the instance of Narain Singh. These two police witnesses have also deposed that at the time of arrest of Narian Singh the pant which he was wearing at that time had some blood stains on it and so that pant Ex. P-5 was also seized. The shirt and pant of Narain Singh were sent for Chemical examination to CFSL and as per the CFSL report Ex. PW-20/K both the shirt and pant were found to be having human blood on them. As far as the shirt is concerned it had blood of 'B' group on it which is the blood group of the deceased as found by the Chemical Analyst after examining the clothes of the deceased which were preserved by the autopsy surgeon after the post-mortem examination of the dead body as well as the blood sample of the deceased. Regarding the recovery of blood stained shirt at the instance of accused Narain Singh the learned trial Judge has held that that was not a genuine recovery shown by the prosecution and that the disclosure statements Ex. PW-16/A pursuant to which Narain Singh had allegedly got recovered the blood stained shirt was a fake document. For arriving at this conclusion the learned trial Judge has made a reference to a document which purports to be a photostat copy of a disclosure statement of accused Narain Singh recorded by the investigating officer PW-20 on 28-08-84. Learned trial Judge has observed that according to this document accused Narain Singh was arrested on 28-08-84 but the investigating officer had shown his formal arrest on 31-08-84 and that showed that the disclosure statement dated 01-09-84, Ex. PW-16/A was not a genuine document and, therefore, the learned trial Judge did not place any reliance on the recovery of blood stained shirt at the instance of Narain Singh. As far as the recovery of blood stained pant of Narain Singh is concerned the learned trial Judge rejected that evidence by observing that it was not probable that the accused would have continued to wear the blood stained pant up to 31-08-84. Regarding the date of arrest of accused Narain Singh and his wife Phulo their stand is that they were arrested on 28-08-84 itself but the investigating officer did not show their arrest on that date and kept them in illegal custody till 31-08-84 on which date their formal arrest was shown. Suggestion to that effect was put to the investigating officer PW-20 SI Mahender Singh also in his cross-examination but he denied the same. He also denied the suggestion that he had recorded the disclosure statement of accused Narain Singh on 28-08-84. He claimed that disclosure statement of Narain Singh was recorded on 01-09-84 pursuant to which he had got recovered the blood stained shirt. In our view, merely on the basis of a photostat copy of a document purporting to be the disclosure statement of Narain Singh recorded on 28-08-84 the learned trial Judge could not have concluded that, in fact, accused Narain Singh was arrested on 28-08-84 but his formal arrest was shown on 31-08-84 and that on 28-08-84 another disclosure statement of Narain Singh had also been recorded. It also could not be concluded by the learned trial Judge that the original disclosure statement dated 28-08-84 had been removed from the judicial file by the police taking advantage of lack of vigilance on the part of the Court officials. This finding is conjectural. There was no reason for the investigating officer to have prepared false documents showing the arrest of Narain Singh on 31-08-84 and recovery of his blood stained shirt on 01-09-84. We have no reason to reject the statement of the investigating officer regarding the arrest of accused Narain Singh on 31-08-84 and recovery of blood stained shirt at the instance of Narain Singh on 01-09-84. The learned trial Judge has disbelieved the recovery of blood stained pant of Narain Singh on the ground that this accused, as per the prosecution case, had concealed his blood stained shirt and so it was improbable that he would have continued to wear the blood stained pant. We see nothing improbable in this circumstance relied upon by the prosecution. It is quite possible that the accused might not have noticed the blood stains on his pant. It was also contended by the learned Counsel for the respondents that these recoveries should not be relied upon since no independent witness was associated by the police at the time of alleged recoveries and, therefore, the evidence of the investigating officer and another police witness examined by the prosecution to prove these recoveries should not be accepted as both of them are interested witnesses for the success of this case investigated by them. We, however, do not find any force in this argument. It is now well settled that the statements of the police witnesses are also entitled to the same weight and the same consideration which is attached to the statements of public witnesses. Police officials are public servants and it is expected of them that they perform their duties honestly. There is a presumption also available regarding the correctness of the duties performed by public servants in the ordinary course of business faithfully and sincerely. That presumption is available under Section 114 of the Evidence Act. In any case, we are of the view that the prosecution case stands established from the evidence of the eye witnesses which is wholly reliable and does not, in fact, require any corroboration. So, even if the evidence of recoveries of blood stained clothes of accused Narain Singh is totally excluded from consideration the accused would still not get any benefit.

22. Having rejected all the criticism against the evidence of the eye witnesses and the prosecution case in general we now come to the plea of alibi taken by accused Attar Singh and Ram Chander. As far as Attar Singh is concerned, he has taken the stand that at the time of the incident he had gone to another village to see a fair being held there on 28-08-84 and he had returned back to Delhi on the next day. This plea of Attar Singh is clearly a false plea and that is evident from the fact that he himself had put to PW-10 in cross-examination that it was he who had caused injuries on the person of the deceased. That suggestion could not have been put to PW-10 if Attar Singh was not present at the place of occurrence. He does not claim that somebody else had informed him on his return to Delhi that his brother Karan Singh had been assaulted by their brother Amar Singh. Under almost similar circumstances the plea of alibi of an accused was rejected by a Division Bench of this Court in a judgment reported in Current Criminal Reports as Sunil Kumar and Ors. v. State II (1997) CCR 199. In that case also one of the accused had taken a plea of alibi and at the same time on his behalf a suggestion had been put to an eye witness as to how the incident had taken place. This Court rejected the plea of alibi of that accused observing that the suggestion put to the eye witness on behalf of the accused regarding the manner in which incident had taken place showed that the accused was present at the time of occurrence. So, in the present case also we reject the plea of alibi taken by respondent-accused Attar Singh. Taking of a false plea in this regard by Attar Singh also goes against him. Although some witnesses were also examined by accused Attar Singh in support of his plea of alibi and those witnesses did claim that Attar Singh had come to village Asaudha in Rohtak district on 17.8.1984 to attend a fair and he had remained there on 28.8.1984 also and had left on 29.8.1984 in the morning but we are of the view that their evidence does not inspire confidence. They claim to be relatives of Attar Singh but still they do not claim to have ever lodged any complaint against the implication of Attar Singh in this case which they would have done if actually Attar Singh was with them in their village on the day of occurrence. They have deposed falsely to help their relative. Their silence for over three years after the arrest of Attar Singh shows that actually on 28.8.1984 Attar Singh was not with them.

23. Similarly the plea of alibi taken by accused Ram Chander cannot be accepted. Although he has examined some witnesses (DWs 1, 2, 6 and 7) to show that on the day of occurrence he was present in his office at Faridabad throughout his duty hours from 10 a.m. to 5 p.m. but their evidence also is clearly an afterthought because they do not claim to have at any stage lodged any complaint with the concerned authorities that Ram Chander had been falsely implicated for the incident and that on the day of occurrence he was in his office from 10.00 a.m. to 5.00 p.m. The witnesses examined by Ram Chander were his colleagues and if actually Ram Chander had been present in the office on the day of occurrence they all or at least some of them would have definitely come forward to his rescue by claiming that on the day of occurrence he was in their company in the office up to 5 p.m. We, therefore, reject the plea of alibi taken by accused Attar Singh and Ram Chander.

24. Accused Narain Singh also examined one witness. He is DW-8 Sumer Singh, a registered Medical Practitioner. He has deposed that accused Narain Singh is the son of his father's sister and was working as a compounder with him. He has further claimed that on 28-08-84 Narain Singh had worked with him from 8.30 a.m. to 8.30 p.m. as usual and during that period he had not gone anywhere. In cross-examination this witness admitted that he had not gone to the police after the arrest of Narain Singh to make a statement and when he had met his brother Amar Singh after four or five days of the death of the deceased he had not talked to Amar Singh to find out as to why a charge of murder had been levelled against Narain Singh. In our view, evidence of this defense witness also cannot be accepted for the reason for which we have discarded the evidence of the defense witnesses examined on behalf of co-accused Attar Singh and Ram Chander. If Narain Singh was in the clinic of this witness up to 8.30 p.m. on 28-08-84 then he would have also informed the police about that which he admits he did not do. In this regard we may at this stage make a useful reference to one judgment of the Supreme Court in Smt. Jaswinder Kaur and Anr. v. State of Punjab , wherein also a plea of alibi was raised by the accused persons and they had examined defense witness in support thereof. The evidence of defense witnesses was not accepted on the ground that they had never informed the police or anybody else about the presence of the accused with them at the time of occurrence at some other place and they being related to the accused had supported the plea of alibi to save the accused persons. Same is the position in the present case. So, the evidence of the defense witnesses examined on behalf of the accused persons in support of their pleas of alibi is rejected.

25. This Court after undertaking a comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case has no hesitation in concluding that none of the reasons given by the learned trial Judge for rejecting the evidence of the four eye witnesses and giving benefit of doubt to the respondents-accused is sustainable and under no circumstances for those reasons the evidence of the eye witnesses and prosecution case in general could be rejected. The benefit of doubt extended to the accused runs straight in the teeth of reliable ocular evidence. After analysing, sifting and assessing the entire evidence relied upon by the prosecution for bringing home the guilt of the accused by a process of dispassionate judicial scrutiny we are of the view that the learned trial Judge had entertained fanciful doubts in his mind about the correctness of the prosecution case without any concrete basis. The trial Court has acquitted the respondents on tenuous grounds and, therefore, its judgment of acquittal is liable to be reversed. There are definitely compelling reasons to do that.

26. The upshot of our foregoing discussion about the evidence adduced by prosecution is that it clearly stands established that on the day of the occurrence all the respondents entered into the house of the deceased duly armed and then the deceased Karan Singh was assaulted by the accused-respondents. It also stands established that all of them had caused injuries to the eye-witnesses Amar Singh, Omwati and Dhanpati also in that incident.

27. Learned Counsel for the respondents had also contended that even if this Court accepts the prosecution case in respect of the occurrence as deposed to by the eye witnesses still all the respondents cannot be held guilty of the offence of murder with the aid of Section 34 IPC. According to him accused Smt. Phulo, Ram Chander and Attar Singh under no circumstances can be said to have shared common intention with co-accused Narain Singh who is alleged to have caused the fatal injuries with a jelly on the chest of the deceased. Learned Counsel further contended that the intention of Ram Chander and Attar Singh was not to cause the death of Karan Singh and that is evident from the fact that both of them had given only one lathi blow each on the person of the deceased and that too not on any vital part of his body. Similarly, accused Phulo although was carrying a gandasi and she hit the same on the head but she used that gandasi from its blunt side and that too not with force while hitting the deceased and if she really had an intention to cause serious injuries to the deceased she would have used the sharp edge of the gandasi and hit it with lot of force so as to cause serious injury on the head. It was also contended that if actually these three accused had intended to cause the death of Karan Singh then the gandasi would have been with any of the two male accused and not with a female. On the other hand, learned Additional Public Prosecutor argued that from the fact that all the accused had come to the place of occurrence together duly armed and after Narain Singh had assaulted the deceased with the jelly other co-accused thereafter used their respective weapons which they were carrying at that time and their hitting the deceased with lathis and the gandasi, may be from its blunt side, shows that they all had come to the house of the deceased with the intention of finishing off Karan Singh. It was also contended that the common intention of all the accused to cause the death of the deceased is also apparent from the fact that when the eye witnesses Amar Singh, Smt. Chameli and Smt. Dhanpati had tried to save Karan Singh when he was being assaulted by the accused persons they were also beaten up so that they could not succeed in saving the deceased from being assaulted by the accused persons. Learned prosecutor, thus, contended that all the respondents are liable to be convicted for the commission of offences for which they were tried including that of the murder of Karan Singh.

28. We have bestowed our thoughtful consideration to the rival submissions on this aspect of the matter. As far as respondent-accused Narain Singh is concerned all the eye witnesses have consistently deposed against him to the effect that it was he who inflicted injury on the chest of the deceased with his jelly. As noticed already, the autopsy surgeon has opined the two injuries on the chest of the deceased were sufficient to cause death in the ordinary course of nature. Therefore, as far as accused Narain Singh is concerned there can be no escape from the conclusion that he is guilty of the offence punishable under Section 302 IPC for killing Karan Singh. Other three accused no doubt had come together with Narain Singh to the house of Karan Singh and all of them were armed also but from this fact it cannot be inferred that they had gone there to murder Karan Singh. It was held by the Hon'ble Supreme Court in Dukhmochan Pandey and Ors. v. State of Bihar IV (1997) Current Criminal Reports 158 that the mere fact that all accused persons are armed with some weapons at the time of an occurrence will not be sufficient to attribute common intention of all of them to commit the offence of murder. It was also held that in order to find out if all the accused persons share common intention for a particular offence it would be necessary to examine as to which weapon was used and on what part of the body of the victim and also the medical evidence indicating the nature of injuries caused thereby and the ultimate cause of death. In the present case, the accused persons, as per the prosecution case, were apprehending that PW-10 Amar Singh would give his properties to his brother Karan Singh or to his children. When they went to the house of Karan Singh where Amar Singh was also residing the accused persons, however, did not say anything to Amar Singh against whom they had a grievance. Accused Narain Singh, however, straightaway assaulted Karan Singh. There is no doubt that thereafter accused Ram Chander and Attar Singh went inside the room where the deceased went after being hit by Narain Singh and there both of them struck a lathi blow each on the non-vital parts of the body the deceased and when the deceased came out of the room Phulo also caused injury on the head of the deceased. But considering the fact that accused Phulo used the blunt side of the weapon which she was carrying and not the sharp side and no serious injury was caused due to that and accused Ram Chander and Attar Singh gave a lathi blow each to the deceased on his waist and shoulder and to other injured persons also they did not cause any serious injury it can be said that they did not intend to cause any serious injuries to the deceased and also that they did not share common intention with Narain Singh to kill Karan Singh. There was no internal injury to the skull noticed by the autopsy surgeon. As per the post-mortem report all the skull bones were found intact. That also shows that Phulo had not applied much force while hitting the deceased with the gandasi. In one case which came up in appeal before the Supreme Court and which is reported as Mohinder Singh and Anr. v. Stae of Delhi also there was a property dispute between brothers and their children, like the present case. During the incident in which son of one of the brothers was killed three accused were involved and all of them had proclaimed to kill the deceased. One of them had caused fatal injury to the deceased with blunt side of an axe and it was held by the Apex Court that since blunt side of the axe was used it could not be inferred that the three accused had the intention to kill the deceased. So, in the present case also it cannot be said that all the accused had gone to the house of the deceased to kill him. The only intention which the respondents-accused Ram Chander, Attar Singh and Phulo can be said to have entertained at the spot with Narain Singh was to cause minor injuries only to the deceased and three eye witnesses. Therefore, as far as the death of Karan Singh is concerned the same cannot be said to have been caused by all the accused persons in furtherance of their common intention. That was the individual act of accused Narain Singh and so he alone can be held guilty for the offence of murder. Other accused, however, having caused minor injuries to the deceased as also to three eye witnesses have to be held guilty for those acts committed by them.

29. Ex-consequenti, this appeal filed by the State is allowed in part and acquittal of the respondents-accused is set aside. We convict respondent-accused Narain Singh under Section 302 IPC for the murder of his brother Karan Singh, under Section 324 read with Section 34 IPC for the injury caused to PW-10 Amar Singh and also under Section 323 read with Section 34 IPC for the injuries caused to the other eye witnesses Dhanpati and Chameli. Other three respondents are convicted under Section 324 read with Section 34 IPC (on two counts) for causing injuries on the person of the deceased as well as to PW-10 Amar Singh. They are also held guilty under Section 323 IPC read with Section 34 IPC for causing injuries to witnesses Chameli and Dhanpati. All the respondents-accused are convicted under Section 452 IPC also. Criminal appeal No. 9 of 1990 stands disposed of accordingly.