BHAJAN SINGH @ HARBHAJAN SINGH & ORS. versus STATE OF HARYANA

12. In Munshi Prasad & Ors. v. State of Bihar, AIR 2001 SC 3031, this Court considered this issue again and observed: "While it is true that Section 157 of the Code makes it obligatory on the officer in charge of the police station to send a report of the information received to a Magistrate ·forthwith, but that does not mean and imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice – if the court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, mere delay, which can otherwise be ascribed to be reasonable, would not by itself demolish the prosecution case." While deciding the said case, this Court placed relied upon E its earlier judgments in Pala Singh & Anr. v. State of Punjab, AIR 1972 SC 2679; and State of Kamataka v. Moin Patel & Ors, AIR, 1996 SC 3041.

13. In Rajeevan & Anr. v. State of Kera/a, (2003) 3 SCC 355, this Court examined a case where there had been F inordinate delay in sending the copy ofthe FIR to the lllaqa Magistrate and held that un-explained inordinate delay may adversely affect the prosecution case. However, it would depend upon the facts of each case.

14. A similar view was reiterated in Ramesh Baburao Devaskar & Ors. v. State of Maharashtra, (2007) 13 SCC 501, wherein there had been a delay of four days in sending the copy of the FIR to the lllaqa Magistrate and no satisfactory explanation could be furnished for such inordinate delay. While H deciding the said case, reliance had been placed on earlier BHAJAN SINGH@ HARBHAJAN SINGH & ORS, v. STATE OF HARYANA [DR. B.S. CHAUHAN, J.] judgments in State of Rajasthan v. Teja Singh & Ors., AIR 2001 SC 990; and Jagdish Murav v. State of U.P. & Ora., (2006) 12 sec 626. [See also Sarwan Singh & Ors. v. State of Punjab AIR 1976 SC 2304: State of U.P. v. Gokaran & Ors. AIR 1985 SC 131; Gurdev Singh & Anr. v. State of Punjab (2003) 7 SCC 258; State of Punjab v, Kamai/ Singh (2003) 11 SCC 271; State of J & K v. Mohan Singh & Ors., AIR 2006 SC 1410; N.H. Muhammed Afras v. State of Kera/a, (2008) 15 SCC 315; Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320; and Arun Kumar Sharma v. State of Bihar C (201 O) 1 sec 108J.

15. Thus, from the above it is evident that the Cr.P.C provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It o serves the purpose that the FIR be not anti-timed or anti-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act. under Section 159 Cr.P.C., if so required. Section 159 Cr.P.C. empowers the Magistrate to hold the investigation or preliminary enquiry of the offence either himself or through the Magistrate subordinate to him. This is designed to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction. It is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been anti-timed or anti-dated or investigation is not fair and forthright.

Every such delay is not fatal unless prejudice to the accused is shown. The expression 'forthwith' mentioned therein does not mean that the prosecution is required to explain delay of every hour in sending the FIR to the Magistrate. In a given case, if number of dead and injured persons is very high, delay in dispatching the report is natural. Of course, the same is to be sent within reasonable time in the prevalent circumstances. However, un-explained inordinate A delay in sending the copy of FIR to the Magistrate may affect the prosecution case adversely. An adverse inference may be drawn against the prosecution when there are circumstances from which an inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the accused B persons after due deliberations. Delay provides legitimate basis for suspicion of the FIR, as it affords sufficient time to the prosecution to introduce improvements and embellishments.

Thus, a delay in dispatch of the FIR by itself is not a circumstance which can throw out the prosecution's case in its c entirety, particularly when the prosecution furnishes a cogent explanation for the delay in dispatch of the report or prosecution case itself is proved by leading unimpeachable evidence.

16. In view of the above, we are in agreement with the High Court that there was no delay either in lodging the FIR or in D sending the copy of the FIR to the Magistrate. It may be pertinent to point out that defen1.::e did not put any question on these issues while cross-examining the Investigating Officer, providing him an opportunity to explain the delay, if any. Thus, we do not find any force in the submissions made by the learned E counsel for the appellants in this regard.

17. It has further been submitted on behalf of the appellants that there is contradiction in medical evidence and ocular evidence. The trial Court has examined this issue and in para F 22 of the impugned judgment, observed as under: " ……. that accused Joga Singh and accused Mukhtiar Singh had attacked their victims with swords whereas accused Nishabar Singh had used 'Gandasa' for the purpose resulting in the deaths of Gian Singh and Nish an Singh and brutal attempt on the life of P. W Ajaib Singh. The trial court had further observed that the skull injury attributed to accused Gurdeep Singh does not receive corroboration from the medical evidence on record because such forceful blow was bound to leave BHAJAN SINGH @ some external mark of injury at the site of the impact but A . no such mark was seen there by the doctor." The trial court reached the conclusion that it seems that accused Puran Singh was· also implicated in this case along with his father Bhajan Singh alias Harbhajan Singh because he is a brother of prime accused Joga Singh. Thus, the involvement of accused Puran Singh in the incident is also doubtful.

18. This has to be examined in the light of the evidence of two eye witnesses, namely, Trilok Singh (PW.9) and Ajaib Singh (PW.10). There is no contradiction between their statements which rather corroborate each other. Ajaib Singh (PW.10) corroborates the version of Trilok Singh (PW.9). He also deposed that Gurdeep Singh was armed with 'Mogra'. Joga Singh and Mukhtiar Singh were armed with swords. Puran Singh and Nishabar Singh were armed with 'Gandasas'. Bhajan Singh @ Harbhajan Singh was armed with 'Neja'. Gurdeep Singh inflicted a 'Mogra' blow on the head of Gian Singh while Mukhtiar Singh inflicted a 'sword' blow on the waist of Gian Singh. He fell down on the ground. Then Joga Singh inflicted a sword blow on Nishan Singh's chest . Bhajan Singh @ Harbhajan Singh inflicted a 'Neja' blow on his waist. Puran Singh inflicted a 'Gandasa' blow on his right elbow. Nishabar Singh inflicted a 'Gandasa' blow on his waist and as a result, Nishan Singh fell down on the ground. Ajaib Singh (PW.10) further deposed that when he tried to rescue Gian Singh and Nishan Singh, Joga Singh inflicted a sword injury in his stomach. Mukhtiar Singh inflicted a sword injury on the back of his neck. Nishabar Singh inflicted a 'Gandasa' injury on his left shoulder.

19. Depositions of Trilok Singh (PW.9) and Ajaib Singh (PW.10) fully corroborate the medical reports. The High Court correctly appreciated this issue as under: "So, according to their testimonies two injuries were caused to Gian Singh (deceased), four injuries were caused to Nishan Singh (deceased) and three injuries were caused to Ajaib Singh (PW.10). In medical evidence also, two injuries were found on the body of Gian Singh (deceased) and four injuries were found on P.W.10 Ajaib Singh as per copy of medico legal report Exhibit P.AA. There is some conflict about the seat of the injuries .as stat!!!d by P.W.9 Trilok Singh and P.W. 10 Ajaib Singh." The testimonies of Trilok Singh (PW.9) and Ajaib Singh (PW.10) are fully reliable. Ajaib Singh (PW.10) is an injured witness in the same occurrence and his testimony cannot be ignored.

20. The High Court has dealt wit~ the injuries found on the D person of Ajaib Singh (PW.10) and held as under: "Regarding injuries to PW.10, Ajaib Singh, it can be said that these were dangerous to life. He was operated upon for small gut perforation and liver laceration. He remained admitted in PGI MS Rohtak, from 6, 11.2002 to 20.11.2002. PW.17 Dr. Paryesh Gupta and PW.19 Dr. Satish Bansal proved the nature of the injuries of PW. Ajaib Singh. The appellants and their acquitted co-accused had the intention or knowledge to cause his death. Determinative question is intention and knowledge, as the case may be, and .not nature of the injury. Bodily injury may · not be sufficient to cause death. An accused may be convicted under Section 307 of the Code if he had intention to cause death. After scrutinizing the testimonies of P.W.11 Dr. Rajesh Gandhi, PW.17 Dr. Paryesh Gupta and PW.19 Dr. Satish Bansal, we are of the considered opinion that the trial court over depended on their opinion evidence. The trial court should not have rejected the direct evidence of P.Ws Trilok Singh and Ajaib Singh on the strength of the BHAJAN SINGH @ uncanny opinion expressed by the doctors. This makes us to interfere in the impugned judgment for setting aside the acquittal of Bhajan Singh @ Harbhajan Singh, Puran Singh and Gurdeep Singh. They are vicariously liable with appellants Nishabar Singh, Mukhtiar Singh and Joga Singh on· the principle of vicarious liability enunciated under Section 149 of the Code. Conviction of appellants Nishabar Singh, Mukhtiar Singh and Joga Singh on the basis of direct evidence and medical evidence is well founded and we do not find any infirmity in the impugned judgment in this regard." c

21. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony. of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to "spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide: Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259; Kai/as & Ors. v. State of Maharashtra, (2011) 1· SCC 793; Durbal v. State of Uttar Pradesh, (2011) 2 SCC 676; and State G of U.P. v. Naresh & Ors., (2011) 4 SCC 324).

22. In State of U.P. v. Hari Chand, (2009) 13 SCC 542, this Court re-iterated the aforementioned position of law: "In any event unless the oral evidence is totally (2011] 7 S.C.R. irreconcilable with the medical evidence, it has primacy."

23. Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. [Vide: Abdul Sayeed (Supra)].

24. In a case like at hand, where two persons died on the spot and other received grievous injuries, the eye witnesses also make an attempt to save themselves and rescue the D persons under attack. In such a fact-situation, the witness is not supposed to be perfectionist to give the exact account of the incident. Some sort of contradiction, improvement, embellishment is bound to occur in his statement. Thus, in view of the above, we have no hesitation to hold that submission of the learned counsel for the appellants in this regard is preposterous.

25. It has further been submitted that a large number of persons had gathered at the place of occurrence but no independent witness has been examined by the prosecution for the reasons best known to it. In a case like this where without having any substantial cause two persons had been killed and one had been seriously injured, no neighbour, even if he had witnessed the incident, would like to come forward and depose G against the assailants. More so, the defence did not ask SI Prakash Chand (PW.18), the Investigating Officer as to why he could not have furnished the explanation for not examining the independent witness. In view thereof, we are of the considered opinion that the appellants are not entitled to take any benefit H of doubt. BHAJAN SINGH @

26. Evidence of a related witness can be relied upon A provided it is trustworthy. Such evidence is carefully scrutinised and appreciated before reaching to a conclusion on the conviction of the accused in a given case. (Vide: · M. C. Ali & Anr. v. State of Kera/a, AIR 2010 SC 1639; and Himanshu@ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36).

27. It has further been submitted that the High Court had no justification to reverse the judgment of acquittal so far as the three appellants are concerned.

28. This Court time and again has laid down the guidelines C for the High Court to interfere with the judgment and order of acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the Appellate Court may be more probable one. While dealing with a judgment of D acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. Interference with the order of acquittal is permissible only in "exceptional circumstances" for "c9mpelling reasons". The appellate court is entitled to consider whether in arriving at a finding of fact, the trial Court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law.

Similarly, wrong placing of burden of proof may also be a subject matter of scrutiny by the appellate court. The expressions like 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc., are not intended to curtail the extensive powers of an appellate court in an G appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with the acquittal. Thus, where it is possible to take only one view i.e. the· prosecution . [2011] 7 S.C.R. evidence points to the guilt of the accused and the judgment is on the face of it perverse, the appellate Court may interfere with an order of acquittal. The appellate court should also bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence.

Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (See: Sanwat Singh & Ors. v. State of Rajasthan AIR 1961 SC 715; Suman Sood alias Kama/jeet Kaur v. State of Rajasthan (2007) 5 SCC 634; Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280; V. S. Achuthanandan v. R. Ba/akrishna Pillai & Ors., (2011) 3 SCC 317; and Rukia Begum & Ors. v. State of Kamataka, (2011) 4 SCC 779).

29. The High Court has reached the conclusion that the judgment of the trial Court was perverse as the trial Court held that it was a clear cut case of commor1 ubject. The High Court has decided the issue as under: "There was common object which appellants Nishabar Singh, Mukhtiar Singh and Joga Singh shared with their acquitted co-accused Bhajan Singh alias Harbhajan Singh, Puran Singh and Gurdeep Singh. They entered the courtyard of the house of P.W. Trilok Singh by raising 'Lalkara' that they would teach a lesson for tethering cattle in the street. By application of Section 149 of the Code, they all the six were liable for inflicting injuries to Gian Singh and Nishan Singh, which resulted in their deaths and brutal injuries to P.W. Ajaib Singh. The trial court was not justified in acquitting Bhajan Singh alias Harbhajan Singh, Puran Singh and Gurdeep Singh on hypothetical medical evidence, by ignoring the reliable direct evidence of P.Ws. Trilok Singh and Ajaib Singh." BHAJAN SINGH @ In view of the above, we do not find any reason to accept A 'the submissions so made on behalf of the appellants.

30. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, .. 8 may not prompt the Court to reject the evidence in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if C present, would not itseif prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the E statements of witnesses. [Vide: Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; and Brahm Swaroop {Supra)].

31. In the instant case, we could not find any major contradiction either in the evidence of. the witnesses or any F conflict in medical or ocular evidence which may tilt the balance in favour of the appellants. There had been minor improvement, embellishment etc., which remain insignificant and have to be ignored.

32. The theory of self-defence put torward by Joga Singh, G appellant, that he caused the injuries to the complainant party to save himself, is most improbable and not worthy of acceptance. The High Court has rightly rejected the same; observing that Joga Singh, appellant, could not even suspect that the complainant party was nurturing a sinister design against him when he was called from his house initially.

33. In view of above, we do not find any force in either of these appeals. The same are dismissed. The judgment of the High Court dated 15.12.2006 is affirmed in its totality. The appellants in Criminal Appeal No. 562 of 2007, namely, Bhajan Singh, Puran Singh and Gurdeep Singh have been enlarged on bail by this Court vide orders dated 2.8.2007 and 22.7.2009. Their bail bonds are cancelled, they are directed to surrender C within a period of two weeks from today, failing which, the Chief Judicial Magistrate, Jind, (Haryana) shall ensure to take them into custody and send them to jail to serve their remaining part of the sentence. A copy of this judgment and order be sent to the learned Chief Judicial Magistrate, Jind, (Haryana) for information and-00mpliance. R.P. Appeals dismissed.