PALWINDER SINGHversusSTATE OF PUNJAB

                      [2013] 5 S.C.R. 1120


A                      PALWINDER SINGH
                                V.
                       STATE OF PUNJAB
               (Criminal Appeal No. 2356 of 2009)
                          MAY 08, 2013
B
        [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                  IBRAHIM KALIFULLA, JJ.]

        Penal Code, 1860 - s.302134 and 392134 - Prosecution
C for murder and robbery - By 4 accused including the
    appellant-accused - Conviction of all the accused by trial
    court - High Court convicting appellant-accused while
    acquitting rest of the accus'ed - Held: Prosecution case
    proved by evidence of eye-witnesses supported by medical
o   evidence and the recoveries made at the instance of the
    accused - Conviction of appellant-accused upheld.
       The appellant-accused, alongwith three other
  accused, was prosecuted for murder and robbery. There
E were two eye-witnesses (PW-3 and PW-4) to the incident.
  There were recoveries of weapons of offence and the
  articles belonging to the deceased, on the basis of
  confessional statements of the accused persons. Trial
  court convicted all the accused ulss. 302/34 and 392/34
  IPC. High Court upheld the conviction of appellant-
F accused, while acquitting rest of the accused. Hence the
  present appeal.
        Dismissing the appeal, the Court
G       HELD: 1. The evidence led by the prosecution
    disclosed that the deceased died of ante-mortem injuries
    and that it was a homicidal death, which was fully
    supported by the version of P.W.1 (the doctor) who
    conducted post-mortem on the deceased. The injuries
H                             1120
     PALWINDER SINGH v. STATE OF PUNJAB             1121


were all grievous in nature and the deceased met with      A
gruesome death. The recoveries made at the instance of
the appellants also fully supported the case of the
prosecution. [Paras 17 and 18) [1128-G; 1130-B-C]
     2. Reliance placed upon the eye-witness account of 8
P.W.3 for.convicting the appellant with the aid of other
witnesses is perfectly justified. It is true that with regard
to the identity of the rest of the accused other than the
appellant, PW-3 stated that he could name them only at
the instance of the police personnel. As far as his
presence at the place of occurrence was concerned, his C
version read along with the evidence of P.W.4 discloses
that the presence of both of them was beyond any pale
of controversy. Even as regards the assault on the
 deceased, the version of P.W.3 was fully corroborated by
P.W.4. Therefore, the presence of P.W.3 at the place of D
happening of the occurrence was thus fully established
with the support of P.W.4. The High Court made a close
scrutiny of the version of P.W.3 and found that he was a
totally independent witness and he had no axe to grind
against the appellant. In fact, his statement that he could E
not identify the other accused was a very fair statement.
When he also belonged to the same village, there was no
reason for him to implicate the appellant alone. Therefore,
the conclusion of the High Court that such a fair
statement made by the witness, namely, P.W.3 cannot be F
 used to totally erase his version, was perfectly justified.
Further, because he did not make any attempt to go to
rescue of the deceased cannot be put against the
witness, inasmuch as when four persons were assaulting
the deceased with dangerous weapons that too in the G
night hour in the present day set up, one cannot expect
an unarmed person to get himself entangled and suffer
unnecessary harm to himself. Moreover, the occurrence
took place late in the light at around 9 pm and, therefore,
prudence might have dawned upon him not to fall a H
    1122    SUPREME COURT REPORTS               [2013] 5 S.C.R.


A cheap prey at the hands of such criminals who were
  already assaulting a person with a dagger and other
  weapons. Equally his conduct in having come back to the
  place of occurrence in the early morning at around 7.30
  am along with P.W.4 only shows his earnestness in
B disclosing what he witnessed on the previous night to the
  police. [Paras 17 and 18] [1128-G-H; 1130-B-C]

       Govindaraju alias Govinda vs. State by Sriramapuram
  Police Station andAnr. (2012) 4 SCC 722: 2012 (5) SCR
C 67; Lal/u Manjhi and Anr. vs. State of Jharkhand (2003) 2
    SCC 401: 2003 (1) SCR 1 - held inapplicable.
                         Case Law Reference:
        2012 (5) SCR 67             held inapplicable Para 19
D       2003 (1) SCR 1              held inapplicable Para 19
        CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
    No. 2356 of 2009.

      From the Judgment and Order dated 12.09.2008 of the
E High Court of Punjab and Haryana at Chandigarh in Criminal
  Appeal No. 350-DB of 1998.

         Vikas Mahajan, Vinod Sharma, Dharam Bir Raj Vohra for
    the Appellant.
F
        Bansuri Swaraj, Siddhesh Kotwal, kuldip Singh for the
    Respondent.

        fbe Judgment of the Court was delivered by

G       FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This
    appeal is directed against the judgment of the Division Bench
    of Punjab & Haryana High Court- at Chandigarh dated
    12.09.2008 in Criminal Appeal No.350-DB of 1998.

        2. The case of the prosecution as projected before the
H
      PALWINDER SINGH v. STATE OF PUNJAB                   1123
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
Court below was that the deceased Dr. Jasbir Singh was             A
running a chemist shop in the village Wadala Banger, that on
20.08.1996 at 08:00 pm, the cousin of the deceased P.W.2
Gurmeet Singh, along with one Baldev Singh wanted to meet
the deceased, that he was proceeding from Kalanaur in his
scooter and that near Mir Kachana, near a brick kiln, they found   B
people gathered around on the road and learnt that somebody
was murdered. When they went to the spot P.W.2 found that
his cousin Dr. Jasbir Singh was found dead with stab wounds
and blood was oozing out. He also found the scooter belonging
to the deceased lying nearby. He further found 100 rupee           c
currency notes were also lying scattered around the deceased.
P.W.2, thereafter, asked his companion Baldev Singh to remain
at the spot and proceeded to lodge a report, which came to
be registered as FIR No.115 under Section 302, 392 read with
34 IPC on 20.8.1996.
                                                                   D
      3. P.W.11 the Assistant Sub-Inspector visited the place
 of occurrence, examined the body of the deceased, prepared
 the inquest report and sent the body for postmortem. He also
 collected the currency notes, which were in 100 rupee
 denomination, the scooter and a rope measuring about 24           E
 fe~t. which was lying near the dead body. Blood stained earth
-wrs also collected from the spot.

  "4. P.W.1 Dr. Kulwant Singh, conducted the postmortem
examination on the body of the deceased on 21.08.1996.             F
Exhibit PA is the postmortem certificate issued by him wherein,
as many as 8 injuries were noted by him. At the instance of
P.W.14, Om Prakash, P.W.12, the Investigating Officer,
arrested four accused including the appellant on 26.08.1996.
Based on the admissible portion of the confessional statement      G
of the appellant, as well as the other accused, various
recoveries were made including weapons, cash, two gold rings
with the inscription 'JSK' and one wrist watch.

   5. The prosecution examined 15 witnesses and marked
PA postmortem certificate, PV and PX Report of Chemical            H
    1124    SUPREME COURT REPORTS                [2013) 5 S.C.R.


A Examiner and PY and PZ report of Serologists. When the
  incriminating circumstances were put against the appellant and
  the other accused under Section 313, they denied the same
  and pleaded that they have been falsely implicated. They also
  examined D.Ws.1 and 2 on their side. P.Ws.3 and 4 were
B examined as eye-witnesses of whom P.W.4 was treated hostile.

       6. Having considered the evidence of the prosecution, in
  particular the version of P.Ws.1 to 4, the medical report, the
  serologist report, chemical examiner's report and the recoveries
  made at the instance of the accused, the trial Court found all
C the accused guilty of the offences alleged against them and
  while convicting them for the said offences, imposed the
  sentence of life with fine of Rs.2500/- each and in default to
  undergo further rigorous imprisonment for six months under
  Section 302 read with 34 IPC. For the offence proved under
D Section 392 read with 34 IPC, sentence of 10 years rigorous
  imprisonment with a fine of Rs.1000/- and in default to undergo
  rigorous imprisonment for three months was imposed. The
  sentences were directed to run concurrently.

E        7. On appeal by all the four accused, the High Court by
    the judgment impugned in this appeal confirmed the conviction
    and sentence imposed on the appellant and acquitted the rest
    of the accused from all the charges.

        8. We heard Mr. Vikas Mahajan, learned counsel for the
F appellant and Ms. Bansuri Swaraj, learned counsel for the
  respondent/State. Learned counsel for the appellant mainly
  contended that there were too many contradictions in the
  version of P.W.3, the so-called eye-witness, that when the High
  Court chose to disbelieve his version, insofar as it related to
G the other three accused on the same reasoning, it ought to have
  acquitted the appellant as well. The learned counsel contended
  that the arrest of the appellant based on the version of P.W.14,
  was not true, that since the appellant was involved in some other
  criminal case earlier, he was falsely implicated in the case on
H hand. Learned counsel contended that there was no evidence
      PALWINDER SINGH v. STATE OF PUNJAB                     1125
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

to show that there was any matching of blood group in order to       A
hold that the appellant was involved in the murder of the
deceased.

     9. As against the above submissions, Ms. Bansuri Swaraj,
learned counsel for the State contended that though P.W.4 was
                                                                     B
treated hostile, his version insofar as his going along with P.W.3
to the place of occurrence and the factum of the deceased
being attacked by certain persons as stated by PW-3 was fully
corroborated and consequently the conclusion reached by the
trial Court based on the eye-witness account of P.W.3,
supported by the version of P.W.4 to that extent read along with     c
the medical evidence for convicting appellant and the
confirmation of the same by the High Court in the impugned
judgment, does not call for interference.
                                   ......
     10. Having heard learned counsel for the appellant as well      D
as the respondenUState and having bestowed our serious
consideration to the case pleaded and on perusal of the
material papers including the judgment of the High Court, as
well as the trial Court, we are also convinced that the conviction
and sentence imposed on the appellant cannot be assailed.            E
      11. The thrust of the submission of the learned counsel for
the appellant was that the whole case of the prosecution was
built upon P.W.3 and his version was wholly unreliable. The
learned counsel in support of his submission, placed reliance
upon the decisions reported in Govindaraju alias Govinda v.          F
State by Sriramapuram Police Station and another - (2012)
4 sec 722 paragraph 25 and La//u Manjhi and another v.
State of Jharkhand - (2003) 2 SCC 401. By relying upon the
above-said decisions, learned counsel contended that P.W.3
could not have witness the occurrence as deposed by him.             G

    12. We perused the evidence of P.W.3. The version of
P.W.3 was that on the date of occurrence, namely, 20.08.1996,
he went to Batala to see his sister who was married in
                                                                     H
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                                                                         ,/



                      SUPREME COURT REPORTS                [201°3] 5 S.C.R.   .1
           1126                                                               ~1

                                                                               !
     A Sagarpura adjoining Batala, that around         a,:oo p.m. he started j
        from his sister's hou~e and on the .way he met P.W.4 Who ·
          · reed to provide a llft to P .W .3. It 1s his further version th t
           ~~enboth of them reached a brick kiln at Mir Kachana       arou~
        S.45 or 9.00 p.m. they saw the deceased as well as the
         accused in a melee among whom the appellant was one of
     8 them. He, however, stated that he was not able to identify the
         rest of the accused. He also stated that appellant and the three
         other persons were attacking the deceased by giving dagger
         blows and that he saw the appell~nt giving such specific
      c dagger blows on the palm of the right hand of the deceaseq,
          as well as, wrist on the chest. He also stated that further dagger
          blows were also inflicted upon the deceased. According to
           P.W.3, he could notice the above incident with the aid of the
      /       head lamp of the scooter.
      D          13. In the cross-examination, he stated that the other
            accused muffled their faces and he was able to mention their
            names with the help of the police personnel. He also stated that .
            it was 10 p.m. and, therefore, he left that place and on the next
            d~y morning he first informed his family members and along
          E with P.W.4 he met police officials by around 8 or 8.40 a.m. at
             the place of occurrence where the body was still lying where
             he a.Isa gave his statement. According to him, none of the
             relatives of the deceased met him He also fairly stated that
              he did not make any attempt to re~cue the deceased.
          F
             versi~~·; ·~ ·4 who was treated as hostile supported the
             by 4          .w.3 upto the factum of assault on the deceased
             lift wh~ch
                   0  5 phersons near brick kiln of Mir Kachana, including th~
             near Tongaes~~~nded to P.W.3 on Dera Baba Nanak Roa e
           G going to village vV He also mentioned that both of them we~e
                  could not identi adala Banger. He, however, stated that he
                  deceased H fy any of the accused who were assauttin9 t
                  appellant.· e also expressed his inability to identifY the

              H
     PALWINDER SINGH v. STATE OF PUNJAB                        1127
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
     15. p.W.1, Dr. Kulwant Singh identified the postmortem             A
certificate issued by him as Exhibit PA and deposed that he
noticed the following injuries on the body of the deceased:

       "1.    An incised wound C shaped 4 cm x X cm on the
              Palmer side of right wrist joint, muscle deep.
                                                                        B
       2.     An incised wound 1Y2 x X cm on the palmer side '
              of right hand in the middle, muscle deep.

       3.     An incised penetrating (both sides) wound spindle
              shaped 3 cm x 1 cm on the front of right shoulder         c
              joint, muscle deep.

       4.     An incised penetrating (both sides) wound spindle
              shaped 2 Yz cm x 1 cm on right lateral side and
              lower part of the chest on the interior axillaries line
              17 cm from the axilla.                                    D
              •
             On dissection underlying liyar was ruptured and
             whole abdominal cavity was full of blood.

   5.        An incised penetrating wound (both side) spindle           ·r::···--
             shaped 2 Yz cm x 1 cm on the front and upper part
             of left side of chest, 6 cm from midline 2 cm below
             clavical.

  On dissection: underlying left lung was ruptured and
       thorax cavity is full of blood                                    F

  6.         An incised penetrating wound (both side) spindle
             shaped 2 Yz cm x Yz cm on the front and left side of
             chest 2 cm medial to the left nipple.

  On dissection: underlying chest wall and pericardieum                 G
       was pierced. Heart was ruptured and pericardieum
       was full of blood.
  7.         Incised penetrating wound ~ cm x 1 Yz cm (both
                                                                         H
    1128        SUPREME COURT REPORTS              [2013) 5 S.C.R.


A                side) spindle shaped on the left side of abdomen
                 19 cm from the umbilicus and parallel) do it.

           On dissection: The abdominal cavity was ruptured. Colon
                on left side was ruptured. Abdominal cavity was full
                 of blood.
8
           8.    6 incised penetrating wounds (spindle shaped,
                 sharp from both sides) 2cmx1 cm, 3cm x 1% cm,
                 2 % cm x 1cm, 2cm x % cm, 2 cm x % cm, 2cm x
                 % cm on the back and left side of chest. All were
C                muscle deep."

       16. The Investigating Officer, P.W.12, deposed that based
  on the interrogation, the appellant made a confessional
  statement and the admissible portion of which was to the effect
  that he had concealed one dagger used in the crime near a
D Shisham tree near brick kiln of Mir Kachana, apart from the
  concealment of one ring, one shirt and pant and Rs.1200/- in
  the iron box lying in his house, which were recovered under
  Exhibit PQ attested by Harjinder Singh. P.W.14 Om Prakash
  deposed that all the four accused met him and confessed about
E the killing of the deceased and that he produced them before
  the police. P.W.5, the wife of the deceased Jasbir Singh stated
  that her husband used to wear two gold rings with the
  impression 'JSK', one Titan wrist watch and one purse and that
  above articles were missing from the dead body of her
F husband.

        17. The above evidence led by the prosecution, disclosed
  that the deceased died of ante-mortem injuries and that it was
  a homicidal death, which was fully supported by the version of
G P.W.1 Dr. Kulwant Singh. The injuries were all grievous in
  nature and the deceased met with gruesome death. When we
  come to the evidence of P.W.3 it is true that with regard to the
  identity of the rest of the accused other than the appellant, he
  stated that he could name them only at the instance of the police
H personnel. As far as his presence at the place of occurrence
      PALWINDER SINGH v. STATE OF PUNJAB                    1129
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

was concerned, his version read along with the evidence of           A
P.W.4 discloses that the presence of both of them was beyond
any pale of controversy. Even as regards the assault on the
deceased, the version of P.W.3 was fully corroborated by
P.W.4. Therefore, when the presence of P.W.3 at the place of
happening of the occurrence was thus fully established with the      B
support of P.W.4, as rightly concluded by the trial Court, as well
as, the High Court, the only other question was whether the rest
of the statement made by P.W.3 merited any acceptance. In
that respect, we find that the High Court made a close scrutiny
of the version of P.W.3 and has found that he was a totally          c
independent witness and he had no axe to grind against the
appellant. In fact, his statement that he could not identify the
other accused, as rightly held by the Division Bench of the High
Court, was a very fair statement. When he also belonged to the
same village, there was no reason for him to implicate the
                                                                     0
appellant alone. He could have simply stated that he knew the
other accused also and that he had noted their presence at the
place of occurrence. Therefore, the conclusion of the High Court
that such a fair statement made by the witness, namely, P.W.3
cannot be used to totally erase his version, was perfectly
justified. Further, because he did not make any attempt to go        E
to rescue of the deceased cannot be put against the witness,
inasmuch as when four persons were assaulting the deceased
with dangerous weapons that too in the night hour in the present
day set up, one cannot expect an unarmed person to get
himself entangled and suffer unnecessary harm to himself.            F
Moreover, the occurrence took place late in the light at around
9 pm and, therefore, prudence might have dawned upon him
not to fall a cheap prey at the hands of such criminals who were
already assaulting a person with a dagger and other weapons.
Equally his conduct in having come back to the place of              G
occurrence in the early morning at around 7.30 am along with
P.W.4 only shows his earnestness in disclosing what he
witnessed on the previous night to the police.

     18. Therefore, we find force in the submission of the           H
    1130     SUPREME COURT REPORTS                [2013] 5 S.C.R.


A learned counsel for the State that the presence of P.W.3 along
  with P.W.4 at the time when the occurrence took place and the
  identity of the appellant by P.W.3 and describing his involvement
  in the commission of the offence as narrated by him, was
  rightly believed by the trial Court, as well as, by the High Court
B and we are also convinced that such a reliance placed upon
  the eye-witness account of P.W.3 for convicting the appellant
  with the aid of other witnesses is perfectly justified. The
  recoveries made at the instance of the appellants also fully
  supported the case of the prosecution.
c       19. Having reached the above conclusion, we find that the
  reliance placed upon the decision reported in Govindaraju
  alias Govinda (supra), as well as, Lallu Manjhi (supra) will be
  of no avail to the appellant. We say so, since we are convinced
  that the version of P.W.3 was wholly reliable and there was no
D reason to doubt his version in order to apply the principles set
  out in the above referred decisions.

        20. We, therefore, do not find any merit in this appeal. The
    appeal fails and the same is dismissed.
E
    K.K.T.                                     Appeal dismissed.