PIARA SINGH & ORS.

STATE OF PUNJAB

October 4, 1977

(S. MURTAZA FAZAL ALI AND P. S. KAILASAM, JJ.J

Evidencc-Evidentiary value of interested or inimical witnesses, explained.

Evidence Act (Act I of 1872), 1872, S. 45 Expert opinion-When tltere are two confiictinR 1nedical opinions, the opinion of that expert which supports the direct evidence n1ust be accepted.

('on.fe.~.ion-Extra-judicial confession-Whether the evide11ce of an extraiudlcial confession should, in all cases, be corroborated.

The four appellan'l:'s were charged u/s. 302 r/w. section 34, I.P.C. for the offence of murder of one Surjit Singh, a coUateral of the accused on the evening of 14th November, 1967; but were acquitted by. the sessions Judge, Amritsar, on the ground that the ocular evidence of the three witnesses (P. Ws 3, 5 and 7) \'i'ho spoke to the fact that the appellants inflicted the injury on the deceased with Kirpan, Gandasi. Barchhi and also with a bullet from the rifle, wrts inconsistent with the medical evidence of the court witness No. 1, Dr.

Par:l:ri':ljit Singh to the effect that injllry No. '11 coUld not have been caused by a fire-arm.

The opinion of Dr. Jatinder Singh who performed the post-niortem in the case ¥/as that the gun shot injury with a \vound of entry and exit on the left buttock which was found in addition to the 14 incised injuries including se\en punctured wounds could be caused by a fire arm including a rifle. -The High court, on appeal by the State, against the acquittal, accepted the prosecutio11 e<lse, set aside the acquittal, convicted Piara Singh and Gian Singh u/s.

302, I. P. C., Kashmir Singh and Joginder Singh u/s. 302/34 I. P. C. and sentenced them to imprisonment for life.

Disrnissing the aopeal u/s. 2 of the Supreme Court Enlargement of Crin1inal Appellate Jurisdiction, 1970, the Court.

HELD : ( 1) Taking an overall view of the facts -and circumstances in the present case, the High Court was fully justified in reversing the order of _acquittal passed by the learned Sessions Judge.

There is sufficient evidence against the accused to prove the charge of murder against them.

The evidence of the eyc-\vitnesses is fully corroborated by the medical evidence, lhe evidence of the recoveries, the evidence of the Ballistic expert and the evidence of P. W. Balbir Singh who deoosed regarding the extra judicial confession made by the accused Piara Singh. [599 F, 603 D-EG]

(2) The evidence of interested or inimical witnesses is to be scrutinised \Vith care but cannot be rejected merely on the ground of being a partisan evidence.

If qn a perusal of evidence the court is satisfied that the evidence is creditworthy there is no bar, in the court relying on the said evidence.

In the instant case, though P. W.s 3, 5 and 6 were the relations of the deceased and bore animus against the accused, they were the natural witnesse<; as the occurrence had taken place near the door of the house of the deceased and they, were, in fact sitting in the court-yard when the occurrence took place.

The evidence of P.W. 7 to whom the whole occurrence was narrated immediately after the accused left the house, the extra judicial co"nfession of Kashinir Singh to P. W. 17, the recovery of the blood-stained Kirpanfrom the sugarcane field of Meja Singh and the recovery of the ernotv cartridge from the place of occurrence fully corroborate their evidence. [599G, 600A-C, D]

(3) The evidence of a medical man or an expeit is merely an opinion whicli lends corroboration to the dire\; t evidence in the case.

Where there is a glaring inconsistency beh:i:een direct evidetice and the medical evidence in respect of

the entire prosecution story, there is undoubtedly a manifest defect in the prosecution case.

Where there is a conflict between the opinion of two experts, the courts should norn1a1ly accept the evidence of the expert whose evidence is corroborated by direct evidence of the case, which according to the court is reliable.

Where the opinion of a medical witness is contradicted by another medical witness, both of whom are equally competent to form an opinion, the opinion of that expert should be accepted which supports the direct evidence in the case.

In the instant case (a) the trial court was not justified in throwing out the prosecution case merely on the basis of the evidence of Dr. Paramjit Singh.

It V.'as not a case of the evidence being totally inconsistent with the n1edical evidence but a case where there was some doubt as to whether or not injury No. 11 was caused by a rifle; (b) the evidence of Dr. Jatinder Singh corroborated, as it is by the evidence of the eye-witnesses, the evidence of the recovery of the bullet, the evidence of the Ballistic expert and the evidence given by P. W 17.

Balbir Singh regarding the extra judicial confession made before hi1n must be accepted. Df. Jatinder Singh had the initial advantage of examining the deceased and holding his post-mortem and observing the nature of the injuries on the body of the deceased.

His opinion is, therefore, based on first hand knowledge and be in any event preferable to Dr. Paramjit Singh who did not have the advantage of seeing the deceased or the injuries on his body but deposed purely on the basis of thf': description of the injuries given by Dr. J atinder Singh. [600 B-H 601E, FG-602B-C]

( 4) Law does not require that the evidence of an extra judicial confession should, in all cases, be corroborated. In the instant case the extra judicial confession was proved by an independent witness who was a responsible cfficer and

v.ho bore no animus against the appellants. The learned Sessions Judge con1rnitted a clear error of law by refusing to rely on the extra judicial confession when it was corroborated by the recovery of an empty from the place of uccurrence.

[603F-G]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 22i of 1972.

From the Judgment and Order dated 31-7-1972 of the Punjab and Haryana High Court in Criminal Appeal No. 364 of 1969.

R. L. Kohli and B. P. Singh for the Appellants.

F Hardev Singh and R. S. Sodhi for the Respondent.

The Judgment of the Court was delivered by

FAZAL ALI, J.-This appeal under section 2 of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 is directed against an order of the High Court of Punjab and Haryana dated 31st July, 1972 by which the appellants Piara Singh and Gian Singh had been convicted under section 302 Indian Penal Code and sentenced to imprisonment for life and Kashmir Singh and Joginder Singh were convicted under sections 302/34 Indian Penal Code and sentenced to imprisonment for life.

The appellents were tried under the afoNsaid section's by the Sessions Judge, Amritsar who however acquitted them of the charges framed against them.

On appeal to the Hi<!h C0urt by the State of Punjab the High Court was of the view that the indgment of the learned Sessions Jude was absolutely wrong and the J-lioh Conrt reversed the iud!!; Tllent of the Sessions Judge and convicted

the appellants as indicated above.

Both the Courts below have given a complete and exhaustive narration of the details of the prosecution case and it i's not necessary for us to repeat the same all over again. The present occurrence has resulted in the death of Surjit Singh a collateral of the accused and appears to be a result of a long standing enmity between the parties.

Suffice it to say that on 14th November, 1967 at about 4.00 p.m. the deceased Surjit Singh had arrived at his house with a cart load of maize cobs from the side of his field.

At that time Harbhajan Singh, a cousin of the deceased and his mother Kesar Kaur and two other relations, namely, Chanan Kaur and Mango were sitting inside the courtyard of their house 6 to 7 yards from the door of his house the four appellants entered the house of Piara Singh variously armed and pounced upon the deceased and assaulted him with Kirpan, Gandasi and Barchhi and also with a bullet from the rifle.

According to the prosecution, "Piara Singh was armed with a rille, fired a rille shot at the deceased on his groins as a result of which he fell down and died soon after.

On hearing the alarm Kundan Singh, Gurbux Singh and Surat Singh then arrived at the spot who were apprised of the occurrence by Harbhajan Singh and other members of the family also narrated the entire incident to them.

The complainant Harbhajan Singh rushed to the Police Station, Valtoha situated at about 4 miles from the place of the occurrence and lodged the F. I. R. at 4-30 p.m. giving the necessary details of the incident.

The dead body of the deceased was taken to the hospital which was lying near the Manawan Canal when the Sub- Inspector came and sent the same to the mortuary for post-mortem examination.

After the usual investigation a charge-sheet was submitted against the appellants as a result of which they were committed to the court of Sessions, tried and finally acquitted by the learned Trial Judge. We have heard counsel for the parties at great length and have also gone through the evidence and the judgments of the two courts.

The High Court has discussed the evidence in great detail and it has also indicated clearly the important circum'stances relied upon by the learned Sessions Judge in acquitting the appellants and has sought to displace them by giving, in our opinion, cogent reasons.

We are clearly of the opinion that the High Court was right in reversing the order of acquittal passed hy the learned Sessions Judge who had made a wrong approach to the whole case.

This wa:s not a case in which two views were reasonably possible. The judgment of tne Sessions Judge is legally erroneous and is also against the weight of the evidence on the record.

As the High Court has given detailed reasons for setting a'side the order of acquittal passed by the Sessions Judge, it is not necessary for us to discuss the matter in great detail.

The central evidence against the appellants con'sisted of the three eye-witneses, namely, P.W. 3 Harbhajan Singh, P.W. 5 Chanan Kaur and P. W. 6 Kesar Kaur. It is true that the three witnesses were re-• lations of the deceased and bore animus against the accused but as the occurrence had taken place near the door of the house of the deceased these persons were the natural witnesses and were in fact sitting in the court-yard when the occurrence took place. It may he difficult to get

witnesses from the village when an assa1Xlt of the type suddenly takes

A place in the house of the deceased.

It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence.

If on a perusal of the evidence the Court is satisfied that the evidence is credit-worthy there is no bar in the Court relying on the said evidence.

The High Court was fully alive to these principles and bas in fact found that the evidence of these three witnes.ses bas a ring of truth.

After having perused the evidence ourselves also we fully agree with the view taken by the High Court.

In tact, the learned Sessions Judge has not made any attempt to dwell into the intrinsic merits of the evidence of these witnesses but has rejected them mainly on general grounds most of which are either unsupportable in law or based on speculation.

The evidence of the eye-witnesses is sought to be corroborated by the evidence of P. W. 7 Kuudan Singh to whom the whole occurrence was narrated immediately after the accused left the house.

There is also the evidence of Balbir Singh. P. W. 17, who is a Sarpanch of the village and au independent witness and. who proves that the appellant Piara Singh bad made an extra judicial confession before him in which he admitted to have committed the murder of the deceased Surjit Singh along with his companions Kashmir Singh, Gian Singh and Joginder Singh.

This witness also proves that Kashmir Singh O!l being narrated by the details made a disclosµre which resulted in the recovery of the Kirpan from the sugar-cane field. of Meja Singh for which. a search list was prepared and the Kirpan was also found stained with human blood.

According to the Investigating Officer an empty cartridge was also found at the spot and he sent the same to the Ballistic Expert along with the rifle recovered from Piara Singh who was a constable in the Border Security Fo.rc.e and the Ballistic Expert folllid thati the empty could ha.ve been shot from the rifle in question.

These circumstances. fully corroborate th.e. e'lide))ce of the eye-witne;; .. ses.

Fi11ally, there is the medical evidence. of Dr. Jatinder Singh who perfofmed. the post-mortem examination on the d.ec .. eased and he found as many as. 7 incised wounds on the varioJJs parts of the body of the deceased and. 7 incised punctured wounds on some vital parts of the body.

Apart from these injuries the dec(lased had. also sqtained a n shot injµry with. a. wound of entry and. exit on.the !ft buttock, whtch accoi; diug. to Dr. Jatinder Singh could be. c.aed by a, fire-arm including a rifle.

The Doctor furUier deposed that the, contQsio11s and abrasions were> caused by a'blunt. weapon and. the otht; r inci'sed won.nos were caused by a sharp cutting instrument like the Gandasa.

Another [)actor was examined by the Sessions Judge as Court Witness No. 1 who on seeing the oost-mortem report of Dr. Jatinder Singh was <>f the view that Injury No. 11 could not have been; caused by a rifl<t a4'<l much capital was made by the accused out on the evidence given by Dr. Paramjit Singh.

The learned. Sessions Judge apoears to have disbelieved the prosecu- • tion case mainly on the ground that the ocular evidence was inconsistent with the, medical evidence. in that. according to the evidence of [)r. P.aramiit Singh. Injurv. No. 11 could not have been caused by a fire arm.

In giyiu1J. this finding the. learned Sessions Judge comoletely a'<erlooked, the fact that. a sµbstantial num her of injuries being inciBed and punctured wounds were fully supported by Dr. Jatinder Singh all<l

.J,

llOt contradicted by Dr. Paramjit Singh. It was not therefore a case of the evidence being totally inconsistent with the medical evidence bui a case where there was some daub! as to whether or not Injury No. 11 v.:as caused by a rifle.

Here also two experts were examined one of whom had undoubtedly supported the prosecution case and categorically stated that Injury No. 11 could have been caused by a rifle.

Injury No. 11 is described in the evidence of Dr. thus :

"Irregular wound with inverted margin 2" X H" was on the left middle inguinal region with counter wound 4" X 3" on the back left buttock crease.

Fractured femur and lacerated muscles were seen at the depth of the wound.

Further disection showed injury to the femoral vessels of the leg".

T_he nature, position and content of this injury clearly shows that it was a fire-arm injury which could have been inflicted by a rifle. Th.ere

was a wound on entrance and another on exit which could be only possible if the deceased was injured by a bullet.

There is the positive evidence of P.Ws. 3, 5 and 6 that Piara Singh had shot the rifle which hit the deceased. The bullet was found at the spot and the rifle which was .recovered from the possession of Piara Singh was sent to the Ballistic Expert within a very short interval.

The_ Ballistic Expert was of the opinion that the empty found could be discharged from .the rifle of the appellant Piara Singh. These circutr1stances therefore speak volull)eS in support of the prosecution case.

The learned Sessions Jl, ldge has completely overlooked the effect of these circumstances in relying on the testimony of Dr. Paramjit Singh alone.

It is well settled that the positive evid_ence in the case is that of the eye-witnesses who had seen and narrated the entire occurrence.

The evidence of a medical man or an expert is merely an opinion which lends corroboration to the direct evidence in the case.

Where there is a glaring incqnsistency between direct evidence and the medical evidence in respect of. the entire prosecution story, that is undoubtedly a manifest <l"fect in the prosecution case.

This however is not the position b<!re. 'Fhe_rn is no inconsistency between the direct and the medical evidence.

What has happened is that two experts, namely, Dr. Jatinder Singh -and Dr. Paramjit Singh had differed in their opinions.

The High Court rightly observed that in view of difference of opinion betv.:een t)le two experts thy evidence of Dr. J [\tin_der Singh must be preferred as it is Sl!PJ?SJrled by the evid, ence of the eye-witnesses whose evidence i's botli rehble and trust-worthy and. i_s also supported by other circm11sta.nces proved in the cqse. It seems t_o us that where there is a C.Qllfli.Gt beiween the opilli.on o.f twq experts the Court should normally

-acept the evidence of the expert whose e_vidence i.s c9rroborated by

dirct evidence of tl, ie G'\se whjch q_ccording to the. cou_rt is reliable.

Iq th;; case of Th, e Queeii v. Ahmd Ally & Ors.( 1) a Division Bench -of tlrn Ciiku.tta Hign Court in a some:what sill)ilar situation observea

aR fofJows. :~ ·

"Dr. Duncan may have given his evidence like an intellignt man, but it is not the proper way to try on mere theories

(1) 11 Sutherland Weeki¥ Reporter Criminal 25.

of medical men, or skilled witnesses of any sort against facts positively proved".

"The .evidence of a medical man, or other skilled witness, however eminent, as to what he thinks may, or may not have taken place under a particular combination of circumstances, however confidently he may speak, is ordinarily a more fallible.

Human knowledge is limited and imperfect".

We find ourselves in complete agreement with the observations; made by the Calcutta High Court in the aforesaid case and hold that where the opinion of a medical witness is contradicted by another medical witness both of whom are equally competent to form an opinion the opinion of that expert should be accepted which supports the direct evidence in the case.

Apart from this, in the instant case it appears that Dr. Jatinder Singh had the initial advantage of examining the deceased and holding his post-mortem and observing the nature of the injuries on the body of the deceased.

His opinion is therefore based on first hand knowledge and would be in any event preferable to Dr. Paramjit Singh who did µot have the advantage of seeing the. deceased or the injuries on his body but deposed purely on the basis of the description of the injuries given by Dr. Jatinder Singh.

For all these reasons therefore we would prefer the evidence of Dr. Jatinder Singh to the evidence of Dr. Paramjit Singh.

It is true that the High Court has relied on a number of books on medical jurisprudence to support the evidence of Dr. Jatinder Singh.

We feel that it was not necessary for the High Court to do so unless the books were put to the expert.

Recitals in the books do not provide a sufficient guide to determine the truth or falsity of the t.estimony of an expert.

Having regard to the facts and circumstances indicated above we are clearly of the opinion that the evidence of Dr. Jatinder Singh corroborated as it is by the evidence of the eye-witnesses, the evidence of the recovery of the bullet, the evidence of the ballistic Expert and the evidence given by P.W. Balbir Singh regarding the extra judicial confession made before him must be accepted.

The trial Court was therefore not just; Jied in throwing out the prosecution case merely on the basi's of the evidence of Dr. Paramjit Singh.

Another ground on which the learned Sessions Judge sought to falsify the prosecution evidence was that whereas Dr. Jatinder Singh has found that there were some injuries on the person of the deceased which were caused by a blunt weapon the witnesses have not at all stated in their evidence as to how these injuries were caused to the deceased.

The High Court, in our opinion, has given a very convincing explanation for this omission.

The High Court has explained that there was the direct evidence to show that one of the appellants, namely, Joginder Singh was armed with a gandasa and the deceased was assaulted by all the four persons even after he had fallen on the ground.

It is quite pos"sible that Joginder Singh might have assaulted the deceased from the blunt portion of the gandasa which explains the simple injuries on the person of the deceased. In view of the evidence of Dr. Jatinder Singh there can be no doubt that the deceased had contusions and abrasions. It is also proved that the deceased had

•..

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PIARA SINGH v. PUNJAB (Fazal Ali, J.) 603

been assaulted by the appellantS and by no others.

In these circums, tances therefore the irresistible inference would be that the deceased must have been assaulted By one of the appellants by a blunt portion of the gandasa.

This was therefore not a good ground in law on the basis of which the Sessions Judge could have rejected the prosecution case or held that the evidence of the eye-witnesses was falsified.

Another circumstance relied upon by the learned Sessions Judge was that according to the evidence of the eye-witnesses the deceased died 25 to 30 minutes after the occurrence whereas according to the Doctor he would have died within 4 to 5 minutes after the assault.

This appears to be very trivial circumstance and is of no consequence.

Two of the eye-witnesses were ladies and the other was a villager.

They did not have any watches with them and if they gave the time which elapsed between the assault and the death of the deceased it was purely by guess.

The villagers had no idea of time.

Moreover, the villagers were not medical experts so as to know as to when the actual death of the deceased took place.

Even though the deceased may have died after 5 or 10 minutes the witnesses may have taken him to be alive for another 10 or 20 minutes.

This is hardly a circumstance which would go to falsify the evidence of the eyewitnesses and the trial Court was not at all justified in throwing out the prosecution case on thi's ground.

There are other circumstances mentioned by the learned Sessions Judge which do not appear to be material and which are based mainly on speculation and have been rightly displaced by the High Court.

Thus taking an over-all view of the picture presented by the prosecution case we find that there is sufficient evidence against the accused to prove the charge of murder against them.

The evidence of the eyewitnesses is fully corroborated by the medical evidence, the evidence of the recoveries, the evidence of the Ballistic expert and the evidence of P. W. Balbir Singh who deposed. regarding the extra judicial confession made by the accused Piara Singh.

The learned Sessions Judge regarded the extra judicial confession to be a very weak type of evidence therefore refused to rely on the same.

Here the learned Sessions Judge committed a clear error of law.

Law doe5 not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved "by an independent witness who was a responsible officer and who bore no animus against the appellants.

There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty from the place of occurrence.

On a careful consideration therefore of the facts and circumstances in the present case we are of the view that the High Court was fully justified in reversing the order of acquittal passed by the learned Sessions Judge and this was certainly not a case in which it could be said that the view taken by the learned Sessions Judge was reasonably possible.

We find no merit in this appeal which fails and is accordingly dismissed.

S. R.

2-95JSCI/77 Appeal dismissed.