LexHOSHIAR SINGH AND ORS versus STATE OF PUNJAB
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• HOSHIAR SINGH AND ORS. v. STATE OF PUNJAB OCTOBER 29, .1991 A [KULDIP SINGH AND MADAN MOHAN PUNCHHI, JJ.] B Indian Penal Code, 1860: . Ss. 148, 149, 302, 302/149, 307, 307/149: Murder, attempt to murder-Trial of 9 accused-Acquittal of 4 and conviction of 5--Validity of. C Evidence Act, 1872: Murder and attempt to murder-Large number of participants-Ac- quittal of some accused and conviction of the othe~rosecutio11 evidence - Credibility of.· Maxim-;i:;alsus in u110 falsus in omnibus-Applicability of D Exhortation-Evidentiary value of. A litigation regarding possession of a certain plot of land was pending in the civil court between the complainants and the accused persons. On 16.12.1975 at about 8 a.m. the accused, armed with fire-arms and sharp edged weapons, reached the outer-house of the complainants E and attacked them. Accordi g to the prosecution case, accused No. 4 who was unarmed, raised an exhortation challenging deceased-1, and caught hold of his long hair while accused 1 fired a rifle shot at him and accused No.7 gave two successive gandasa blows on his head. Accused No.9 fired a shot at PW 15. Accused nos.6 and 8 fired one shot each at deceased-2 who also succumbed to his injuries. PW 16 was fired at by accused No. 2 hitting F him at the left arm and Dank. Accused No. 3 and 5 gave blows from the reverse side of gandasa and spear to PW.17 and another woman respectively. On the side of the accused, a spear ,bl«>W of accused No. 5 accidently his accused no. 9 and a shot fired by accused No. 6 accidently hit another man on the side of the accused who later on died. Besides the G members of the complainant's family, the neighbours, PWs, 18 & 19 also witnessed the occurrence. The. accused were alleged to have run away taking a rifle and revolver belonging to the complainants. The police investigation culminated in the trial of the 9 accused. H 575 576 SUPREME COURT REPORTS (1991) SUPP. 1 S. C.R. . A The Trial Court acquitted four accused (nos.1 and 3 to S ) b~t convicted the appellants (accused nos. 2 and 6 to 9) or offences punishable under ss. 148; 149, 302, 302/149, 307 and 307/149 and sentenced them to ~ various terms or imprisonment. The appeal tiled by the appellant having bee11 dismissed by the High B Court, an ~ppeal by special leave to this Court was filed. _ It was contended on behalf or the appellants that the four accu~ having been acquitted despite the eye witnesses deposing to their participation in the alleged incident, no credence should be given to the ~ < C prosecution witnesses in order to maintain the' conviction; and that the prosecution failed to explain the way the injuries were caused to the persons on the accused side. Dismissing the appeal, this Court, D HELD :1. The large number of participants in the occurrence would, at some place or the other leave a place for entertaining some doubt. But in theinstant case the prosecution case as a whole remaine"- strong sup- ported as it was by the independent evidence of P.Ws.18 and 19, the neigh- bours. 'ibe OCCWTence took place in the Courtyard of the outer house or the E complainant party. Blood stained earth was collected from four places there- in during investigation. In the totality of circumstances it cannot be said that the 11181dmfalsus in uno falsus in onmibus was attracted. (583 H; 584A,C) ,,. 2. Exhortation is necessarily not a padding or over doing and has to be viewed in the correct perspective, in the facts and circumstances of each case. .-'*, F [582E] In the instant case, the roles assigned to accused no. 4 who was acquitted, that he gave [an] exhortation, caught hold of the long hair of deceased-1 and ~lt'tried away his rifle after the incident, were, according to G the Sessions Judge, part of the overdoing. The fact that the rifle was being carried by the accused at the time of his arrest was considered by him to i>e·abnormal as otherwise in the normal course or events it was expected to ~ have been kept concealed. The Sessions Judge held that he was not satis- H tied about the criminality of accused No. 4. (582 C-D] HOSHIARSINGH v. STATE 577 Besides the exhortation, there were other factors available which A could lead the Sessions Judge to take the view that he had, and that was a possible view which any cautious Judge could have taken. But that per se does not mean that the witnesses who had deposed to the participation of the accused at the t
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