1. These two appeals arise out of a common judgment and order of the High Court of Punjab and Haryana at Chandigarh disposing of two criminal appeals, namely, Criminal Appeal No. 290-DB of 1995 and Criminal Appeal No. 336-DB of 1996. Criminal Appeal No. 936 of 1999 in this Court is preferred by Pohlu, who was the appellant in Criminal Appeal No. 290-DB of 1995, while Criminal Appeal No. 181 of 2002 is by Balwan Singh who was the appellant before the High Court in Criminal Appeal No. 336-DB of 1996. They have been found guilty of the offence under Sections 302/34, IPC for which they have been sentenced to undergo imprisonment for life and also to pay a fine of Rs. 1,000/- and in default to undergo six months’ rigorous imprisonment. They have also been found guilty of the offences under Sections 452, IPC and 323, IPC read with Section 34, IPC for which they have been sentenced to undergo three years’ rigorous imprisonment and six months’ rigorous imprisonment respectively, apart from payment of Rs. 500/- and Rs. 200/- as fine.

2. As many as five accused persons were put for trial before the Additional Sessions Judge, Jind in Sessions Trial Case No. 31 of 23.5.1995 charged variously of offences under Sections 302, 452, 323 read with Section 34, IPC. The Trial Court acquitted two of them, namely, Raj Kumar and Prem Singh of all the charges levelled against them. The appellants before us were convicted by the Sessions Court which conviction has been affirmed by the High Court, as earlier noticed. The remaining accused, namely, Ishwar Singh, who was also convicted, preferred a special leave petition before this Court which was dismissed, while the appellants before us only were granted special leave to appeal.

3. An occurrence is alleged to have taken place on 8.1.1995 at about 2.30 p.m. in village Bakhta Khera falling within the jurisdiction of Police Station, Julana. In that incident, according to the prosecution, the appellants and three others assaulted Hukam Chand, who succumbed to his injuries while being taken to the hospital, and also caused injuries to Smt. Sukhdei, PW 2 who was the daughter-in-law of the brother of the deceased, and who is the informant in the case. She lodged a report at 5.00 p.m. while admitted in the hospital at Julana on the basis of which a formal First Information Report (FIR) was registered at 5.45 p.m. on the same day (Exhibit PB).

4. In the FIR lodged by PW 2 it was stated that Panchayat elections were held in the village on 19.12.1994 in which Hukam Chand and one Prakash Harijan had contested. Hukam Chand was declared successful, and since the accused were the supporters of Prakash Harijan they felt aggrieved and bore a grudge against Hukam Chand. According to the informant, at about 2.30 p.m. when she was in her house she noticed that Ishwar, Balwan and Pohlu armed with Lathis came towards her house hurling abuses. When she attempted to come out of the house, Ishwar gave a Lathi-blow on her head while Balwan assaulted her with Lathi on her right hand and Pohlu inflicted a Lathi-blow on her left arm. She raised an alarm and ran outside. She noticed deceased Hukam Chand, his son Rajinder (PW 1), Chander and Sita Ram (not examined) who were co-villagers, coming from the other side. When she reached near the village Chaupal, Ishwar inflicted a Lathi-blow on the head of Hukam Chand. Though Hukam Chand was supporting a turban the injury caused on his head resulted in his falling down on the ground, whereafter appellants Balwan and Pohlu caused injuries with their respective Lathis. They also caused injuries to her. Hukam Chand had become unconscious and was moved to the hospital but succumbed to his injuries on the way to the hospital. The informant was admitted for treatment. It was, therefore, alleged that Ishwar, Balwan and Pohlu had murdered Hukam Chand assaulting him with Lathis on account of party rivalry, and in the process had also caused injuries to the informant. The persons named as eye-witnesses in the FIR are Rajinder (PW 1), Chander and Sita Ram.

5. It appears that the report was made to the Investigating Officer, PW 11 when he came to the hospital on receipt of a Ruqa from the medical officer. It also appears that 15 minutes later PW 11 recorded a supplementary statement of the informant under Section 161, Cr.P.C. in which the informant stated that when she had given her initial report she was perplexed and had forgotten to mention the name of Prem Singh who had also accompanied the named accused and caused injuries to her and her son Dharamvir after entering her house.

6. The Trial Court and the High Court have relied on the testimony of the two eye-witnesses examined by the prosecution, namely, Rajinder, PW 1, the son of the deceased and Sukhdei, PW 2, who was the daughter-in-law of the brother of the deceased. We may notice at the threshold that two other witnesses mentioned as eye-witnesses in the FIR namely Chander and Sita Ram were not examined by the prosecution. Similarly, Dharamvir, who, according to the informant, had been assaulted by Prem Singh was also not examined by the prosecution.

7. The Trial Court, on an appreciation of the evidence, came to the conclusion that the prosecution had proved its case beyond reasonable doubt against the appellants herein and Ishwar. It, however, held that the allegations against accused Prem Singh and Raj Kumar were not proved, and accordingly, it acquitted them. The reason for their acquittal was that they had not been named in the First Information Report lodged by PW 2 in the first instance. The name of Prem Singh was sought to be included by recording a supplementary statement, while Raj Kumar was named by the informant for the first time in Court. Moreover, as against Prem Singh the only allegation was that he had assaulted Dharamvir and the informant, but Dharamvir was not examined by the prosecution and therefore, there was no satisfactory evidence to prove that he had been assaulted, as alleged, by Prem Singh. However, the Trial Court as well as the High Court relied on the testimony of the two eye-witnesses, PW 1 and PW 2, and accepting their evidence as against the appellants before us and Ishwar, convicted and sentenced them in the manner earlier noticed.

8. Mr. Jaspal Singh, Senior Counsel appearing on behalf of the appellant Pohlu and Mr. M. Qamaruddin, Counsel appearing on behalf of the appellant Balwan submitted before us that apart from the fact that the alleged eye-witnesses, PW 1 and PW 2 are wholly untrustworthy, there are serious lacunae in the case of the prosecution. The genesis of the occurrence is shrouded in mystery, and there appears to be no reason why the appellants who bore a grudge against the deceased would have gone to the house of the informant Sukhdei (PW 2) and assaulted her. It was further submitted that there is material on record to prove that an occurrence had taken place in a different manner altogether in which accused Ishwar was also injured, but the prosecution deliberately withheld the evidence which would have established that the real occurrence took place in an entirely different manner and with a view to avoid disclosure of the true manner of occurrence, Dharamvir was deliberately withheld and not examined as a witness. In fact Ishwar had also received injuries in the course of the same occurrence and was examined by the same medical officer, even before the FIR was lodged by Sukhdei, PW 2. They have relied upon the evidence of PW 4 Dr. N.K. Verma to support the defence case that Ishwar was examined by him at 4.45 p.m. on the date of occurrence and he had found injuries on his person which had been caused in the course of the same occurrence in which the deceased and Sukhdei had received injuries. They further submitted that from the evidence on record it appears that at the stage of the investigation it was not the case of the prosecution that, apart from Ishwar, any other person had taken part in the assault and it was only at the stage of the trial that five persons were accused of having committed the offence. It was also submitted that there was really no motive for the appellants to commit the offence.

9. So far as motive is concerned, it is settled law that failure to prove motive is not fatal to the case of the prosecution if there is reliable evidence to prove the case of the prosecution. However, there is substance in the submission urged on behalf of the appellants that there was really no reason for the appellants to assault Sukhdei, and for that purpose to go to her house, even if they bore a grudge against Hukam Chand, the deceased. It is not understood as to why the appellants went to the house of Sukhdei and assaulted her when it was really Hukam Chand who was their target and who was living separately from Sukhdei. Moreover, the election took place on 19.12.1994 and thereafter for about 18 days nothing untoward happened. There is no reason why suddenly the appellants decided to assault Sukhdei. It was therefore, contended that the real genesis of the occurrence has not been disclosed by the prosecution, and that probabilises the defence case that in a different occurrence, and in a different manner, the informant and the deceased were assaulted.

10. It was then submitted that some of the material witnesses were not examined and in this connection it was argued that two of the eye-witnesses named in the FIR, namely, Chander and Sita Ram were not examined by the prosecution. Dharamvir, son of Sukhdei was also not examined by the prosecution though he was a material witness, being an injured eye-witness, having witnessed the assault that took place in the house of Sukhdei, PW 2. It is true that it is not necessary for the prosecution to multiply witnesses, if it prefers to rely upon the evidence of the eye-witnesses examined by it, which it considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined, will not adversely affect the case of the prosecution. We have, therefore, to examine the evidence of the two eye-witnesses, namely, PW 1 and PW 2, and to find whether their evidence is true, on the basis of which the conviction of the appellants can be sustained.

11. PW 2 Sukhdei has alleged in the FIR that the occurrence took place near the village Chaupal in which Hukam Chand, the deceased, was assaulted. Before that the appellants and others had entered her house, assaulted her and thereafter proceeded towards the Chaupal. While deposing in Court she has attempted to change the place of occurrence by stating that she was assaulted in the Sahan of her house and Hukam Chand was assaulted just outside her house. Counsel for the State has shown to us the site plan from which it appears that the place where Hukam Chand is alleged to have been assaulted is only three steps from the main door of the house of the informant. Counsel for the appellants submitted that this has been done deliberately, because the material on record does disclose that a different occurrence took place near the Chaupal in which the son of the informant namely Dharamvir, was also involved. However, with a view to prevent the emergence of truth the prosecution has shifted the place of occurrence and also not examined Dharamvir, son of the informant, who was also involved in that incident. What is apparent, however, is that PW 1 has sought to shift the place of occurrence where Hukam Chand is said to have been assaulted. Though, according to her, she was assaulted inside the house in the Sahan and some blood had dropped in the Sahan, and her clothes had also got blood-stained, the Investigating Officer has categorically stated that he did not find blood at any place either at the alleged place of occurrence or in the Sahan or on the clothes of the informant. Moreover, this witness named only three accused persons in the FIR. Later she added the name of Prem Singh, and in the course of deposition in Court she also implicated Raj Kumar. These facts lead us to hold that she is not a wholly reliable witness on whom the Court can place implicit reliance.

12. Similarly, PW 1 also does not appear to be a witness on whom implicit reliance can be placed. In examination-in-chief he supported the informant’s version and narrated the occurrence in more or less the same manner. In his cross-examination, however, he asserted that he had not stated before the police that Dharamvir had suffered injuries while trying to save his father, the deceased. When confronted with his statement recorded in the course of investigation, it was found that he had made such a statement. Similarly, though he asserted that he had told the police that all the five accused had inflicted Lathi injuries on the person of his father after he had fallen on the ground, he admitted that in his statement (Exhibit PA) the names of accused Raj Kumar and Prem Singh were missing. He further denied having stated before the police that his father Hukam Chand had been assaulted only by accused Ishwar, but he was confronted with his statement recorded in the course of the investigation where he had so stated. Similarly, his assertion in the course of deposition that appellant Pohlu had assaulted his father was belied by the fact that in his statement recorded in the course of the investigation he had not stated that all the accused persons present in the Court had assaulted his father. In fact it was found that in his statement before the police he had stated that Pohlu, the appellant, was standing with Lathi outside the house in the street. He further deposed that no blood had come out from the injuries sustained by his father Hukam Chand.

13. From the deposition of this witness it appears that in the course of the investigation he had stated that his father had been assaulted only by Ishwar, and not by others. In the course of deposition he sought to involve all the accused persons. Having considered the evidence of this witness in its entirety, we are satisfied that he is also not a reliable witness on whom implicit reliance can be placed and his credibility has been sufficiently impeached in his cross-examination. In fact so far as this witness is concerned, he named Raj Kumar and Prem Singh for the first time in the course of his deposition, and it appears that he had not even mentioned their names in the course of the investigation.

14. Learned Counsel also drew our attention to the other material on record which, according to them, probabilises the defence of the appellants that the occurrence took place in a different manner and the appellants herein were not at all involved. In that occurrence, Ishwar (co-accused) had received injuries which the prosecution had failed to explain. In this connection, reliance was placed on the evidence of Dr. Verma, PW 4, who admitted that on the date of occurrence at 4.45 p.m. he had examined appellant Ishwar and had found the following injuries on his person:

“1. There was swelling on nose with bleeding from nose, fresh clots were present in the nasal cavity without any injury mark. Advised ENT opinion.

2. There was swelling of lower lip with lacerated wound on posterior aspect of lower limb measuring 2.5 cm. x 0.5 cm. x 0.2 cm. Blood clots were present.

There was bruise present above the right-ankle joint on the lateral aspect of right leg measuring 4 cm. x 3 cm. red in colour.”

15. In answer to Question 24 put to the appellant Pohlu in his examination under Section 313, Cr.P.C., he had stated as follows:

“It is a false case. There was a betrothal ceremony of Vajinder @ Kalu, s/o Sube Singh in our village. Ishwar, accused and Dharamvir were invited for lunch in that ceremony.

Liquor was served. Ishwar-accused and Dharamvir consumed liquor in excess. There was an altercation between Ishwar and Dharamvir and exchange of blows near village Chaupal. However, the family members of Dharamvir and family members of Ishwar came near the Chaupal armed with Lathi from both sides. There was tension, Sukhdei and Hukam Chand considering that some untoward happening may not occur tried to pacify both sides. There were several persons present there. Any one of them caused injuries to Sukhdei and Hukam Chand and we were falsely involved in this case after consultation and deliberation. None of us caused any injury to Sukhdei and Hukam Chand. The PWs are deposing falsely.”

16. Learned Counsel for the appellants submitted that having regard to the evidence of the prosecution witnesses which is unreliable, and in the light of the material on record which probabilises the defence of the appellants, the conviction of the appellants cannot be sustained.

17. Having considered the evidence of the eye-witnesses and in view of the fact that the eye-witnesses tried to falsely implicate two other persons namely Raj Kumar and Prem Singh, whose acquittal was not challenged by the State, we are not persuaded to place reliance upon any one of the eye-witnesses for the reasons earlier recorded. Other witnesses named in the FIR who could have thrown some light on the occurrence as it took place, have not been examined. One of the injured persons, namely, Dharamvir has been kept out deliberately, and was not examined at the trial. There was a deliberate attempt on the part of the informant PW 2 to keep him out of the picture by not naming him in the FIR, though in her supplementary statement she mentioned that Prem Singh had assaulted her son Dharamvir inside her house. So far as PW 1 is concerned, his cross-examination reveals that he had a different story to tell in the course of the investigation involving only Ishwar. In these facts and circumstances, we hold that neither of the two eye-witnesses examined by the prosecution can be relied upon. If their evidence is discarded, there is no other evidence which can sustain the conviction of the appellants.

18. The conviction of Ishwar has attained finality, and in these appeals we are not concerned with his case. We, therefore, allow these appeals and set aside the conviction and sentence of the appellants in both the appeals. It appears that during the pendency of the appeals the appellants have been released on bail by this Court. Their bail bonds are discharged.