Veer Singh And Others v. State Of Uttar Pradesh .

C. Nagappan, J.— These two appeals are preferred against the common judgment of the High Court of Judicature of Allahabad in Veer Singh v. State of U.P Criminal Appeal No. 749 of 1996, Criminal Appeal No. 749 of 1996 and Criminal Appeal No. 761 of 1996 dated 1-10-2007. The appellants in Criminal Appeal No. 749 of 1996 are Accused 1 to 4 and the appellant in Criminal Appeal No. 761 of 1996 is Accused 5, in Sessions Case No. 72 of 1985, on the file of the Third Additional Sessions Judge, Muzaffarnagar, and they were tried along with three other accused for the alleged offences under Sections 147, 148, 307 and 302 read with Section 149 and Section 452 of the Penal Code, 1860. The Sessions Court found Accused 6 to 8 not guilty of the charges and acquitted them and at the same time convicted Accused 1 to 5 for the charge under Section 302 read with Section 149 IPC and sentenced them to death, subject to confirmation by the High Court; convicted them for the offences under Section 307 read with Section 149 IPC and sentenced them to undergo rigorous imprisonment for a period of 5 years; convicted them for the offence under Section 452 IPC and sentenced them to undergo rigorous imprisonment for a period of 4 years, and had also convicted Veer Singh, A-1, Takal Singh, A-2 and Balkar Singh, A-5, for the offence under Section 148 IPC and sentenced them to undergo RI for a period of 2 years and had convicted Amrik Singh, A-3 and Kamir Singh, A-4, for the offence under Section 147 IPC and sentenced them to undergo rigorous imprisonment for a period of one year.

2. Aggrieved by the conviction and sentence Accused 1 to 5 preferred appeals being Criminal Appeal No. 749 of 1996 and Criminal Appeal No. 761 of 1996 and a reference regarding death penalty was also made to the High Court. Besides, the State also preferred an appeal being Appeal No. 1341 of 1996, challenging the acquittal of Accused 6 to 8. The appeals and reference were heard together and the High Court by its common judgment dated 4-12-1997 allowed the criminal appeals filed by Accused 1 to 5 and rejected the reference and acquitted them of all the charges. It also dismissed the criminal appeal preferred by the State.

3. Challenging the said judgment the State of U.P preferred Criminal Appeals Nos. 727-29 of 1998 and this Court allowed (2004) 10 SCC 117 the appeals and remitted the matter to the High Court for fresh hearing. Thereafter, the High Court by a common judgment dated 1-10-2007 Criminal Appeal No. 749 of 1996 commuted the death sentence recorded against Accused 1 to 5 to one of life imprisonment and upheld the conviction and sentence imposed by the Sessions Court against them for all the charges by dismissing the appeals in Criminal Appeal No. 749 of 1996 and Criminal Appeal No. 761 of 1996. It also dismissed the State appeal preferred challenging the acquittal of Accused 6 to 8. Aggrieved by the conviction and sentence Accused 1 to 5 have preferred the present appeals.

4. The prosecution case as it discerned from the records is briefly, as follows: Shisha Singh and Mohar Singh were residents of Village Dongpura, whereas Gurdip Singh was resident of adjacent Village Varnau. On 13-7-1984/14-7-1984, at about midnight Gurdip Singh heard firing and cries from the houses of Shisha Singh and Mohar Singh and armed with his licensed gun he along with Jassa Singh and Hazoor Singh moved towards the house of Shisha Singh. In the moonlight and the light of the torch he saw Kartar Singh and his son Mahender Singh standing on the rooftop of the house of Shisha Singh holding gun and country-made pistol and Kartar Singh was shouting aloud to his sons Mahendra Singh, Lakkha Singh, Ginder Singh and Sinder Singh to eliminate the whole family of Shisha Singh and Mohar Singh and that none should escape away. They fired several gunshots and Gurdip Singh withdrew himself back and at that time Harbans Kaur, wife of Shisha Singh, escaped from the house with injuries and came and told him that Kartar Singh and his four sons accompanied by all the four sons of Sampuran Singh and Balkar Singh had killed all the family members of Shisha Singh and Mohar Singh and sought help from him. Harbans Kaur was taken to a safer place and thereafter Gurdip Singh along with Jaswant Singh went to Jhinjhana Police Station and gave an oral complaint which was reduced to writing by PW 14 Head, Mouri and the first information report came to be registered at about 4.15 a.m on 14-7-1984. The police party rushed to the place of occurrence and S.J Mohd. Akhtar, SO, Jhinjhana Police Station, took up the investigation and sent the injured to the hospital. He seized material objects from the place of occurrence and conducted inquest on the dead bodies and prepared inquest reports and sent the bodies for post-mortem examination.

5. PW 6, Dr N.K Sharma examined Harbans Kaur at 6.30 a.m on 14-7-1984 in Civil Hospital, Shamli and found the following injuries:

“(i) Lacerated wound measuring 11 cm × 1.5 cm × bone-deep slanting on the left side of head 6.5 cm above from the left ear. Wound had been bleeding.

(ii) Lacerated wound measuring 1.2 cm × 0.5 cm × bone-deep on the left ear, bleeding.

(iii) Bluish mark in red colour in the area of 7 cm × 1 cm on the left cheek in between Injuries 2 and 4.

(iv) Lacerated wound measuring 3 cm × 0.7 cm × across through the right cheek. Lacerated wound measuring 3 cm × 0.3 cm × bone-deep on the portion of jaw opposite to it.

(v) Red bluish marks in the area of 28 cm × 1.5 cm on the third upper portion of back on both sides of the backbone.

(vi) Many lacerated wounds in the area of 37 cm × 28 cm of chest and abdomen on the frontal portion, out of these the large wound was measured as 3 cm × 0.7 cm × depth was not measured and the smallest wound was measuring 0.2 cm × 0.2 cm × muscle-deep. Some article like hard pellet felt in the injury. Blackening was present nearby the injury.

(vii) Lacerated wound measuring 1 cm × 0.7 cm × muscle-deep, nearby to it, skin has peeled towards the inner side of the left thigh.

(viii) Abrasion in the area of 5 cm × 1.5 cm on the frontal portion and left side of the left knee.”

The doctor opined that Injury 1 could have been caused by a sharp-edged weapon while Injury 6 could have been caused by a firearm.

6. Dr N.K Taneja (PW 1), Dr R.K Vats (PW 2), Dr B.K Mishra (PW 3), Dr Suresh Chand (PW 10), Dr R.S Kasana (PW 11) and Dr D.C Mohar (PW 12) conducted autopsy on the bodies of the twelve victims. They opined that the death occurred to all the victims due to shock of haemorrhage as a result of ante-mortem injuries. Exts. 1 to 6 and 9 to 14 are the post-mortem certificates issued by the doctors.

7. During the investigation the investigating officer arrested the accused and on the information furnished by them made recoveries of the weapons and other material objects under mahazar (fard). After completing investigation he filed charge-sheet against all the accused totalling 13. One of the accused died and the Sessions Court framed charges against the accused persons and during the trial the prosecution examined 18 witnesses and marked 93 exhibits. During the trial four accused absconded. The Sessions Court examined Accused 1 to 8 under Section 313 CrPC. All of them denied the testimony of the prosecution witnesses and stated that they have been falsely implicated due to enmity. The Sessions Court convicted Accused 1 to 5 for the charges as indicated above and acquitted Accused 6 to 8.

8. On appeal the High Court acquitted all the accused and on further appeal by the State this Court remitted the matter back to the High Court for reconsideration. Thereafter the High Court has passed the impugned judgment Criminal Appeal No. 749 of 1996. Aggrieved by the conviction and sentence of the High Court Accused 1 to 5 have preferred these appeals.

9. Mr R.S Sodhi, learned Senior Counsel for the appellants submitted that Harbans Kaur is the sole eyewitness to the occurrence and in her earlier statement before the Magistrate within a few hours of the occurrence, she has told that Surender Singh has fired gunshots at her and Surender, Mahender, Jinder who are sons of Kartar Singh were involved and thereafter in her statement given before the IO in addition to the abovesaid accused persons she named the appellants-Accused 1 to 5 amongst the assailants and, therefore, her testimony is not reliable, and lot of material improvements were introduced and there is no motive attributable to the present appellants and it is a midnight occurrence and in the absence of effective source of light it is doubtful as to whether the witness could have recognised the assailants and the appellants have been falsely implicated in the case.

10. Per contra, Mr Ratnakar Dash, Senior Advocate appearing for the respondent contended that Harbans Kaur was seriously injured in the occurrence and only one question was asked by the Magistrate as to who caused injury to her and in her reply she named Surender Singh and the other sons of Kartar Singh and it related to a part of occurrence so far as the injured is concerned and did not in any way relate to the rest of the occurrence and after gaining full consciousness in her statement given before the investigating officer she has narrated the entire occurrence and the names of all the accused, and in the FIR which came into being immediately after the occurrence based on the complaint given by Sardar Gurdip Singh, the names of all the accused persons are found mentioned and there was also motive for the occurrence.

11. Harbans Kaur is the wife of Shisha Singh and the dwelling house of Mohar Singh was adjacent to her house.

12. PW 4 Harbans Kaur in her testimony has stated that on the fateful night she along with her sons Joginder Singh and Jassa Singh and her daughter Rano, Joginder's wife Bhajan Kaur and her three children Bagga Singh, Phulvender and Gurmit Singh were sleeping in her house and her husband was sleeping at the tubewell and a lantern was burning in the house and on hearing the barking of dogs they woke up and saw a group of people at the gate including Kartar Singh and his four sons, namely, Mahendra Singh, Lakkha Singh, Ginder Singh and Sindar Singh and they were carrying gun, country-made pistol, axe and spade. She also noticed among them the four sons of Sampuran Singh, namely, the appellants Veer Singh, Tahal Singh, Amreek Singh and Kamir Singh along with Balkar Singh armed with weapons and lathi in the assembly, and out of fear she and her family members went into a room and bolted the door from inside. Kartar Singh and Mahender Singh climbed up the roof and started demolishing the roof and threw burning wood from the roof. Kartar Singh was shouting aloud to his sons to finish off all the members of the family of Shisha Singh and Mohar Singh and not to allow anybody to escape alive.

13. It is further the testimony of PW 4 Harbans Kaur that when she and the other family members tried to escape, accused Kartar Singh, Mahender Singh, Balkar Singh and Amreek Singh let loose a killing spree and initially killed her daughter Rano, her daughter-in-law Bhajan Kaur, her sons Kulvendra and Gurpreet Singh and they fired gunshots on her which struck on her chest and accused Sinder attacked her with an axe on her hand and mouth and her sons Jassa Singh and Joginder Singh were killed outside their house when they tried to run away. She heard cries emanating from the house of Mohar Singh and five persons of their family were also killed and she ran to the field of paddy hiding herself where she met Gurdip Singh, Hazoor Singh and Jaswant Singh and narrated the occurrence to them and sought their help to lodge the complaint and Gurdip Singh along with Jaswant Singh proceeded to the police station. She has further testified that she asked Hazoor Singh to go to the tubewell and inform her husband about the occurrence. Hazoor Singh came back and told her that Shisha Singh and Mohar Singh were also hacked to death.

14. From the above testimony it becomes evident that PW 4 Harbans Kaur has witnessed the occurrence and also sustained grievous injuries. Immediately after the occurrence in the morning itself Harbans Kaur was admitted in the hospital for treatment and information was sent to the Magistrate for recording her dying declaration. In the hospital she was examined by PW 6 Dr N.K Sharma and he noticed eight injuries on her body and he has expressed the opinion that the lacerated wounds could have been caused by sharp-edged weapons and Injury 6 could have been caused by firearm. The injuries sustained by her were serious in nature. SDM, Shamli reached the hospital at 12.45 p.m and recorded her statement in question-answer form and only one question was asked as to how she sustained the injuries and she told that she was shot by Surender Singh in the presence of other sons of Kartar Singh. In other words the reply pertained only to that part of the occurrence in which she was injured and not the entire occurrence.

15. In fact PW 4 Harbans Kaur in her testimony before the court has clearly stated as to why she has given a limited answer to the Magistrate. Further, it is not a dying declaration since she survived and it is only a statement under Section 164 CrPC which can be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 of the Act for the purpose of contradiction. This statement did not relate to the entire occurrence. It must be borne in mind that she had witnessed the brutal murder of all her family members by the appellants and other accused during the occurrence and when she was in a state of shock in the hospital she had given answer to the question put up by the Magistrate. After regaining her health when she was examined by the investigating officer, she has stated the entire occurrence naming the assailants and the attack made by them with weapons.

16. There is intrinsic evidence available on record which lends credence to her testimony. The occurrence took place in the midnight and the complaint was lodged in Jhinjhana Police Station at 4.15 a.m on 14-7-1984 without any loss of time. The complainant Gurdip Singh was also murdered before the trial. In the complaint Gurdip Singh has stated that during midnight on the occurrence day he heard loud noise and screaming from the house of Shisha Singh and Mohar Singh. He took up his licensed gun and moved towards the house of Shisha Singh with Jassa Singh and Hajoor Singh and saw in the moonlit night and also in the light shed by the torch, Kartar Singh and his son Mahender Singh standing on the roof of Shisha Singh's house and Kartar Singh loudly directed his sons to wipe off all the family members of Shisha Singh and Mohar Singh and when he and his fellows challenged, all of a sudden the assailants opened fire on them and he stepped back and it was at that time that the injured Harbans Kaur who escaped from the occurrence place met him and told him that Kartar Singh and his sons along with other accused have killed all the members of her family and also the family of Mohar Singh, and pleaded for help and to inform the police. After providing her safety he went to the police station and gave an oral complaint which was reduced to writing and he appended his signature on it.

17. The Head, Mouri of the police station Shri Inder Pal Sharma, PW 14 has recorded the oral complaint of Gurdip Singh and registered the FIR, Ext. Ka-18. The extract of General Diary is Ext. Ka-19. The names of the assailants including the names of the present appellants are found mentioned in the complaint lodged by Gurdip Singh. It is also relevant to point out that no enmity is attributed to Gurdip Singh against the assailants and there is no reason for him to falsely implicate the appellants in the case.

18. Hazoor Singh has been examined as PW 5 and in his examination-in-chief he has stated that on the occurrence night he heard the noise of firing coupled with screaming cries from the house of Shisha Singh and Mohar Singh and he went to the house of Jassa Singh and both of them went to the house of Gurdip Singh who accompanied them by taking gun and torch and when they went near the house of Shisha Singh they saw several men and he could not identify any of them and Harbans Kaur met them there and told them that Kartar Singh and other assailants have attacked them. At this point of time he was declared hostile by the prosecution and in the cross-examination he stated that Gurdip Singh had lodged the complaint about the occurrence in the police station and when Harbans Kaur narrated the occurrence, he was also present at the place and on the request of Harbans Kaur he went to the tubewell and found Shisha Singh and Mohar Singh lying dead and he informed Harbans Kaur about the same and she became unconscious.

19. It is settled law that the testimony of the hostile witness need not be discarded in toto and that portion of testimony in the chief-examination which supports the prosecution case can be taken for consideration. In the present case, in the examination-in-chief itself PW 5 Hazoor Singh has admitted about his going to the place of occurrence along with Gurdip Singh and Jaswant Singh on hearing the noise of firing and cries emanating from the house of Shisha Singh and Mohar Singh and the narration of the occurrence by Harbans Kaur to them which led to lodging of the complaint. The above testimony of PW 5 lends credence to the testimony of PW 4.

20. The investigating officer, PW 18, S.J Mohd. Akhtar, after taking up the investigation went to the occurrence place and seized bloodstained materials and also went to the roof of the house of Shisha Singh and took brick from the damaged roof and also ashes from the room, which have been marked as Exts. Ka-40 and Ka-41, respectively. This also lends credence to the testimony of PW 4 Harbans Kaur that the assailants damaged the roof and threw burning wood inside the room during the occurrence.

21. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. The evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section 134 of the Evidence Act. As a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. (Vide Vadivelu Thevar v. State of Madras AIR 1957 SC 614, 1957 Cri LJ 1000, Kunju v. State of T.N (2008) 2 SCC 151, AIR 2008 SC 1381, Bipin Kumar Mondal v. State of W.B (2010) 12 SCC 91, AIR 2010 SC 3638, Mahesh v. State of M.P (2011) 9 SCC 626, Prithipal Singh v. State of Punjab (2012) 1 SCC 10, Kishan Chand v. State of Haryana (2013) 2 SCC 502, JT (2013) 1 SC 222 and Gulam Sarbar v. State of Jharkhand (2014) 3 SCC 401, (2013) 12 Scale 504.)

22. In the present case we are left with the sole testimony of the injured eyewitness PW 4 Harbans Kaur. She has lost all the members of her family in the attack during the occurrence. There is no reason for her to falsely implicate any of the accused in the case. On the contrary she would only point out the correct assailants who are responsible for killing her family members. We are of the considered view that the testimony of PW 4 Harbans Kaur is cogent, credible and trustworthy and has a ring of truth and deserves acceptance. All the twelve victims of the occurrence died of homicidal violence is established by the oral testimony of the doctors who conducted autopsies on their bodies and the certificates issued by them to that effect.

23. There was also motive for the occurrence. It is the testimony of PW 4 Harbans Kaur that her husband lent a sum of Rs 8000 to Mahender Singh, son of Kartar Singh, 8 years prior to the occurrence and he was avoiding to pay back which created bitterness. Besides the above, it is also indicated in her testimony that Mahender Singh suspected that family members of Harbans Kaur had tipped the police about the activities of Mahender Singh which led to his arrest twice by the Jhinjhana and Kairana Police. It is her further testimony that Mohar Singh has also lent some money to Mahender Singh and this testimony also finds support from the evidence of PW 9, Mukhtiyar Singh, son of Mohar Singh, to the effect that Lakka Singh had taken Rs 1600 from Mohar Singh about 5 years prior to occurrence which he had declined to pay despite repeated demands. Both the above witnesses, namely, PW 4 Harbans Kaur and PW 9 Mukhtiyar Singh have testified that Mahendro, sister of Mahender Singh, had developed illicit intimacy with Avtar Singh alias Pappu, son of Mohar Singh, and had once outraged her modesty which led to convening of a panchayat and decision thereof. Enraged by this Mahender Singh wanted to take revenge and that has resulted in the occurrence. In this context it is relevant to point out that the appellants in their answers to the questions put to them during proceedings under Section 313 CrPC in the trial have alleged that they have been falsely implicated in the case on account of enmity.

24. From the evidence on record we are inclined to hold that the appellants along with other accused armed with weapons had committed trespass into the dwelling houses of Shisha Singh and Mohar Singh during midnight with a view to commit murder of the family members of Shisha Singh and Mohar Singh and carried out the same. The High Court has rightly sustained the conviction of the appellants and the sentences awarded to them are also proper.

25. We find no merit in the appeals and the same are dismissed.