Jaswant Singh vs State Of Haryana
2022 Latest Caselaw 16287 P&H

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

330                        CRA-S-2228-SB-2003 (O&M)
                           Reserved on 08.12.2022
                           Date of Decision: 09.12.2022


Jaswant Singh                                                   ...Appellant
                                  Versus
State of Haryana                                               ... Respondent


CORAM :         HON'BLE MR. JUSTICE N.S.SHEKHAWAT

Present :      Mr. Gurinder Pal Singh, Advocate as
               Amicus Curiae for the appellant.


               Mr. Rajinder Kumar, DAG, Haryana.


N.S.SHEKHAWAT, J. (Oral)

The present appeal is directed against the judgment and

order dated 20.10.2003 passed by the learned Additional Sessions

Judge, Fast Track Court, Karnal, whereby, the appellant was ordered

to be convicted under Section 307 read with Section 34 of the Indian

Penal Code and Section 25 of the Arms Act and was sentenced to

undergo rigorous imprisonment for a period of four years and to pay a

fine of Rs. 1000/- and rigorous imprisonment for a period of three

years and to pay a fine of Rs. 500/-, respectively, alongwith default

stipulation.

The facts of the case in brief are that on 24.02.2003, the

complainant Jagan Nath SI/SHO alongwith ASI Janak Singh, ASI Jai

Singh and other police officials were present in a government jeep,

driven by Constable Ranbir Singh for checking vehicles at the bridge

of Yamuna at Meerut Road in the area of Manglora. During the

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checking, a bus bearing registration No. DL-1PA-5642 came from the

side of Karnal, which was driven by one person and one person was

sitting on the front left side seat of the driver. The bus was signaled to

stop and the driver of the bus stopped the bus all of sudden on the

road. When SI/SHO Jagan Nath alongwith other police officials

proceeded towards the bus to check it, both the persons sitting on the

front side of the bus alighted from the same all of sudden from the left

side of the door and all of sudden both of them took out pistols from

their pockets and fired one shot straight at the police party with an

intention to kill them. On seeing them, the SI/SHO Jagan Nath and

other officials laid on the ground and saved their lives. Both the

persons raised the pistols in their hands and fled in the fields towards

the left side of the road and the SI/SHO alongwith other police

officials chased them in the fields and by surrounding them, they were

apprehended. On inquiry, they told their names to be Prem Singh son

of Ram Singh and Jaswant Singh son of Balbir Singh, respectively.

Search was conducted of both Prem Singh and Jaswant Singh and one

country made pistol of .315 bore was recovered from the right hand of

Prem Singh and one empty cartridge and one live cartridge were also

recovered from Prem Singh, whereas, one .303 bore country made

pistol and one live cartridge were recovered from Jaswant Singh and

the pistols and the cartridges were taken into possession by the police.

Even, the bus in question was also taken into possession by the

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police,which was found to be stolen from Panipat. The ruka was sent

to the Police Station and, accordingly, the FIR under Sections 307,

411 and 34 IPC and Section 25 of the Arms Act was ordered to be

registered against the appellant Jaswant Singh and his co-accused

Prem Singh.

After completion of the investigation, the challan was

presented against the appellant and Prem Singh co-accused. The trial

Court found that a prima facie case under Sections 307, 411, 34 IPC

and Section 25 of the Arms Act was made out against both the

accused and the accused were ordered to be charge sheeted

accordingly, to which, they pleaded not guilty and claimed trial.

In support of the case of the prosecution, the prosecution

exmained nine witnesses.

The prosecution examined PW1 C-Dharambir Singh,

who carried the special reports to the Illaqa Magistrate and other

higher police officers. He delivered the special report to the Illaqa

Magistrate at 09.30 p.m. on 24.02.2003 and also delivered the various

other reports and ASI Japan Giri was examined as PW2 who had

formally registered the FIR Ex.P1, on the basis of the ruka. PW3

Balwan Singh Head Constable and PW4 Constable Chander Bhan

were the formal witnesses. Vinod Kumar, Ahlmad to the District

Magistrate was examined to prove the sanction order Ex.P6. The

prosecution further examined PW6 Prem Kumar, Draftsman, who had

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prepared the scaled site plan Ex.P7 with correct marginal notes. The

prosecution further examined PW7 Jagan Nath SI/SHO Police Station

Madhuban, the complainant. He supported the case of the prosecution

and he had effected the recovery of one country made pistol .315 bore

alongwith one empty cartridge and one live cartridge from Prem

Singh whereas one country made pistol, and one live cartridge were

recovered from Jaswant Singh, the present appellant/accused. The

parcels were prepared and he had conducted the initial investigation

in the instant case. In his cross-examination, he stated that the accused

alighted from the bus from its right window and they fired at the

police party after alighting the bus. There were many persons on the

road but no person was working in the fields. The accused were

apprehended at about 03 acres away from the road. He further stated

that no official of the police party sustained any injury. ASI Jai

Bhagwan was examined as PW8, who brought the record relating to

one FIR No. 78 of 2003 under Sections 392 and 397 IPC, Police

Station Model Town Karnal and exhibited the same on the record.

ASI Janak Singh was examined as PW9, who was part of the police

party, which was fired at by the accused. He was also signatory to

various memos regarding recovery made at the spot. In his

cross-examination, he had admitted that they were standing at about

four steps away from the bus. The accused alighted from the bus from

the left side window and accused tried to fire at the police party from

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5/7 steps. He further admitted that no one was injured from the fired

shots. The investigating Officer tried to join the independent

witnesses, but nobody was ready to become the witness in the police

case.

After prosecution closed its evidence by examining nine

witnesses, the evidence was put to the accused in the shape of a

statement under Section 313 Cr.P.C. and the appellant/accused and

his co-accused pleaded false implication by the police.

In defence evidence, the accused tendered copy of

statement of PW4 Krishan Kumar as Ex.DA and closed the defence

evidence.

After the evidence was led by both the sides, vide

impugned judgment and order, the learned trial Court held that no

offence under Section 411 IPC was made out against the appellant

and he was ordered to be acquitted. However, the learned trial Court

convicted the appellant under Section 307/34 IPC and Section 25 of

the Arms Act and was sentenced as mentioned above with a default

stipulation.

By way of the instant appeal, the appellant has

challenged the impugned judgment and order passed by the learned

trial Court.

Learned counsel for the appellant vehemently argued that

the appellant has been wrongly convicted under Section 307 IPC. He

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further submitted that the story set up by the prosecution was

inherently improbable and no offence under Section 307 IPC is made

out against the appellant. He further submitted that the statements

made by various prosecution witnesses were contradictory to each

other and the prosecution version was liable to be disbelieved by this

Court.

The learned State counsel has vehemently opposed the

submissions made by the learned counsel for the appellant and

submitted that there are serious and specific allegations against the

appellants and his co-accused Prem Singh and they had fired one shot

each at a police party, who had stopped the bus driven by one of them.

Without provocation they alighted from the bus and fired shots at the

police party and the said version is duly corroborated by the

testimonies of PW7 SI Jagan Nath, PW9 ASI Janak Singh and other

official witnesses. He finally prayed that impugned judgment and

order are liable to be upheld by this Court.

I have considered the rival submissions made by the

learned counsel for the parties and marshaled the trial Court record

with their able assistance.

In the instant case, as per complainant/PW7 Jagan Nath,

he alongwith other police officials, namely, ASI Janak Singh, ASI Jai

Singh, HC Bhram Swaroop, HC Bahadur Singh, C. Dharambir,

C. Ranbir Singh, ASI Rajbir Singh, EHC Phool Singh, EHC Ratan

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Singh, C. Rajbir Singh and C Surajbhan etc., was present for checking

the vehicles at Yamuna river bridge at Meerut road. Thus, it is

apparent that the complainant was present at the spot with 11 other

police officials in an official vehicle, which was driven by Constable

Ranbir Singh. It has been further stated by the prosecution that a bus

came from the side of Karnal and the appellant and his co-accused

Prem Singh were the only occupants in the bus and the bus was

signaled to stop. All of sudden, two persons alighted from the bus and

fired one shot each from their respective weapons at the police party

and the police laid on the ground to save itself. After that both the

accused raised their weapons in their hands and fled towards the

fields. The complainant alongwith other police officials chased them

and apprehended both the accused, i.e. present appellant and his

co-accused and the recoveries of firearms and cartridges were made

from those persons.

The appellants in this case has been charged with offence

of attempt to murder. The complainant simply alleged that that the

accused alighted from the bus and immediately thereafter, they fired

at the police party, which comprised of 12 police officers. I find

sufficient force in the argument raised by the learned counsel for the

appellant that the version of the prosecution was highly improbable

and was liable to be disbelieved by this Court. It is highly

unbelievable that the accused, who were signaled to stop, alighted

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from the bus and started firing at the police party without any motive,

reason or provocation. Still further, as per the complainant, when the

fire was opened by the accused, they laid on the ground to save their

lives. 12 police officials were on official duty and must be carrying

firearms with themselves. It is surprising to note that the persons had

opened fire at the police party, in which, 12 police officials were

present and none of the police officers retaliated. Three senior

policeman were also in the team, who were aware of their right to

private defence. If any assault,which may cause reasonable

apprehension that death will otherwise be the consequence of such a

assault, then in such eventuality, the right of private defence of the

victim extends to voluntarily causing the death or any other harm to

the assailants. Even otherwise, when the accused had fired at the

police party without any provocation, the police party would have

certainly fired at them in retaliation. However, no such thing

happened at the spot and the story of the prosecution is doubtful on

that count. Still further, as per the prosecution story, both the accused

had fired from their respective weapons, but no empties/pellets were

recovered from the spot. As per the story of the prosecution, the

accused had fired with an intention to kill from a very close range, but

surprisingly none of the police men suffered any injury. Even, the

accused, instead of leaving the spot in a bus, chose to ran away on

foot. Still further, if the intention of the accused was to fire at the

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police party with an intention to kill them, they could have fired shots

while sitting in the bus itself and could have easily escaped from

scene of crime. Still further, as per the case of the prosecution, both

the accused ran away towards the fields and were caught by the police

party after chasing them. It is again surprising that the accused did not

repeat the firing, when they were being chased by the police party.

Still further, even during the process of catching hold of the accused,

neither the police party suffered even a bruise nor the accused

suffered any injury. Further, as per the admission of the prosecution

witnesses themselves, several persons were present near the spot and

the incident had happened at busy Meerut road. Surprisingly, no

independent witness was joined at the time of conducting the

proceedings at the spot, despite availability. In view of this, the story

of the prosecution that the accused fired at the police party,

immediately alighting from the bus seems to be highly improbable

and no offence under Section 307 IPC is made out against the

appellant.

Apart from Section 307 IPC, the appellant and his

co-accused were charged and convicted under Section 25 of the Arms

Act and were sentenced to undergo rigorous imprisonment for a

period of 3 years each and to pay a fine of Rs. 500/- each under the

said provision. The legal maxim 'falsus in uno falsus in omnibus' has

no application to the Indian Criminal Justice System. The said

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principle of law was discussed by the Hon'ble Supreme Court in

Criminal Appeal No. 1282 of 2001 titled as "Gangadhar Behera and

others Vs. State of Orissa", is reproduced as under:-

"15. To the same effect is the decision in State of Punjab

v. Jagir Singh, (AIR 1973 Supreme Court 2407) and

Lehna v. State of Haryana, (2002 (3) SCC 76). Stress

was laid by the accused-appellants on the non-

acceptance of evidence tendered by some witnesses to

contend about desirability to throw out entire

prosecution case. In essence prayer is to apply the

principle of "falsus in uno falsus in omnibus" (false in

one thing, false in everything). This plea is clearly

untenable. Even if major portion of evidence is found to

be deficient, in case residue is sufficient to prove guilt of

an accused, notwithstanding acquittal of number of other

co-accused persons, his conviction can be maintained. It

is the duty of Court to separate grain from chaff. Where

chaff can be separated from grain, it would be open to

the Court to convict an accused notwithstanding the fact

that evidence has been found to be deficient to prove

guilt of other accused persons. Falsity of particular

material witness or material particular would not ruin it

from the beginning to end. The maxim "falsus in uno

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falsus in omnibus" has no application in India and the

witnesses cannot be branded as liar. The maxim "falsus

in uno falsus in omnibus" has not received general

acceptance nor has this maxim come to occupy the status

of rule of law. It is merely a rule of caution. All that it

amounts to, is that in such cases testimony may be

disregarded, and not that it must be disregarded. The

doctrine merely involves the question of weight of

evidence which a Court may apply in a given set of

circumstances, but it is not what may be called 'a

mandatory rule of evidence'. (See Nisar Alli v. The

State of Uttar Pradesh (AIR 1957 Supreme Court 366).

Merely because some of the accused persons have been

acquitted, though evidence against all of them, so far as

direct testimony went, was the same does not lead as a

necessary corollary that those who have been convicted

must also be acquitted. It is always open to a Court to

differentiate accused who had been acquitted from those

who were convicted. (See Gurucharan Singh v. State of

Punjab, AIR 1956 Supreme Court 460. The doctrine is

a dangerous one specially in India for if a whole body of

the testimony were to be rejected, because witness was

evidently speaking an untruth in some aspect, it is to be

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feared that administration of criminal justice would

come to a dead-stop. Witnesses just cannot help in giving

embroidery to a story, however, true in the main.

Therefore, it has to be appraised in each case as to what

extent the evidence is worthy of acceptance, and merely

because in some respects the Court considers the same

to be insufficient for placing reliance on the testimony of

a witness, it does not necessarily follow as a matter of

law that it must be disregarded in all respects as well.

The evidence has to be shifted with care. The aforesaid

dictum is not a sound rule for the reason that one hardly

comes across a witness whose evidence does not contain

a grain of untruth or at any rate exaggeration,

embroideries or embellishment. (See Sohrab s/o Beli

Nayata v. The State of Madhya Pradesh, (1972)3 SCC

751) and Ugar Ahir v. The State of Bihar, (AIR 1965

Supreme Court 277). An attempt has to be made to, as

noted above, in terms of felicitous metaphor, separate

grain from the chaff, truth from falsehood. Where it is

not feasible to separate truth from falsehood, because

grain and chaff are inextricably mixed up, and in the

process of separation an absolutely new case has to be

reconstructed by divorcing essential details presented by

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the prosecution completely from the context and the

background against which they are made, the only

available course to be made is to discard the evidence in

toto. (See - winglee Ariel v. State of Madhya Pradesh,

(AIR 1954 Supreme Court 15) and Balaka Singh v. The

State of Punjab, AIR 1975 Supreme Court 1962. As

observed by this Court in State of Rajasthan v. Smt.

Kalki, (AIR 1981 Supreme Court 1390), normal

discrepancies in evidence are those which are due to

normal errors of observation, normal errors of memory

due to lapse of time, due to mental disposition such as

shock and horror at the time of occurrence and those are

always there however honest and truthful a witness may

be. Material discrepancies are those which are not

normal, and not expected of a normal person. Courts

have to label the category to which a discrepancy may

be categorized. While normal discrepancies do not

corrode the credibility of a party's case, material

discrepancies do so. These aspects were highlighted

recently in Krishna Mochi v. State of Bihar etc.,

(2002(4) JT (SC) 186). Accusations have been clearly

established against accused-appellants in the case at

hand. The Courts below have categorically indicated the

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distinguishing".

No doubt, the testimonies of the prosecution witnesses

regarding the firing incident have not been found to be worth placing

reliance, still such part of the statements,which relates to recovery of

illicit firearms from the appellant and his co-accused is concerned, the

same can be believed and regarded. In the instant case, the

prosecution examined PW7 SI Jagan Nath, who deposed that from

personal search of the accused Prem Singh one country made pistol of

315 bore was recovered and two cartridges were also recovered from

him. Similarly, one country made pistol was recovered from the right

hand of the appellant. One live cartridge of the same bore was also

recovered from the pocket of the pant of the appellant. The sketch of

the pistol Ex.P12 was prepared. The pistol alongwith empty live

cartridges were converted into a parcel which was sealed with the seal

of JN. The parcel was taken into possession vide recovery memo

Ex.P13, which was signed by ASI Janak Singh and ASI Jai Singh.

Still further, seal was handed over to ASI Janak Singh. Sealed parcel

was opened in the Court and one country made pistol and cartridges

were produced before the Court. The said testimony is also

corroborated in this regard by ASI Janak Singh PW9 in all material

particulars. Still further, the prosecution examined PW5 Vinod

Kumar Ahlamd to District Magistrate, who proved the sanction order

Ex.P6.

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Apart from that, the said weapon was taken to FSL by the

prosecution witnesses and vide report Ex. P22, the FSL Madhuban

reported that the country made pistol recovered from the present

appellant was a fire arm as defined in the Arms Act, 1959.

Thus, the prosecution has been able to prove the charge

under Section 25 of the Arms Act against the present appellant and is

accordingly convicted under Section 25 of the Arms Act only and the

impugned judgment of conviction is liable to modified to that extent.

The trial Court had sentenced the appellant to undergo

rigorous imprisonment for period of three years and to pay a fine of

Rs. 500/- of the Arms Act. A perusal of the custody certificate makes

it clear that at the time of conviction, the present appellant was aged

about 40 years in the year 2003 and now he is aged about 60 years.

The custody certificate further reveals that the appellant did not

indulge in any other criminal case since 24.02.2003 and did not

misuse the concession of suspension of sentence in the last several

years. Even as per the custody certificate, he has undergone an actual

custody of one year, two months and ten days and, consequently, ends

of justice will be suitably met, if the sentence imposed upon him is

reduced to the one already undergone by him.

Resultantly, the appellant is acquitted of the charge

under Section 307 IPC. The conviction of the appellant, as

recorded by the learned trial Court under Section 25 of the Arms Act

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is maintained. However, the substantive sentence is ordered to be

reduced to the one already undergone by him and order of sentence is

accordingly modified.

The present appeal is, accordingly, disposed of.

All the pending miscellaneous applications, if any, are

disposed of, accordingly.

The case property, if any, may be dealt with in

accordance with law after the expiry of the period of limitation.

The trial Court record be transmitted back.

09.12.2022                                  (N.S.SHEKHAWAT)
amit rana                                         JUDGE

             Whether reasoned/speaking :             Yes/No
             Whether reportable         :            Yes/No




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