Tarlochan Singh vs State of J&K

Mr. Janak Raj Kotwal, J.—This is an appeal by one Tarlochan Singh against his conviction under section 302 RPC by learned 1st Additional

Sessions Judge, Jammu vide judgment dated 31.07.2002 and sentence of imprisonment for life and fine of three lac rupees vide order dated

19.08.2002.

Heard. We have perused the record.

Prosecution case as it was set up before the learned trial court, shorn of unessential, is that on 03.06.1998 at about 6.00 in the morning

Tarjinder Singh (PW-3) found that Daljeet Singh, Balbir Singh, Avtar Singh sons of Hari Singh, Harbans Singh and Balkar Singh sons of Thakur

Singh (for short the accused) have diverted the course of water from his land towards their land. On his asking, the accused openly told PW-3 that

they will tell him shortly thereafter. After this incident PW-2, Gurmeet Singh (for short the informant) accompanied with his brother, Jasbir Singh

(PW-4) and mother, Parsan Kour (for short the deceased) and PW-3 diverted the course of water towards their land. This annoyed the accused

persons. The informant party were returning to their house after diverting the course of water to their field. On their reaching near a ‘Sareen’

tree outside village, Sunjwa, a bus bearing No. JK-02E 8815 owned by accused Balbir Singh was coming from opposite side. Accused

(appellant) Tarlochan Singh was driving the bus whereas the other accused were sitting in it. On seeing the informant party the accused persons

with a common intention and common object exhorted the driver of the bus to run the bus over the informant party and kill them so that the

everyday hassle is finished. On seeing this, informant pulled his mother (deceased) on to a ‘Banna’ (embankment) and PWs Jasbir Singh

and Tarjinder Singh also climbed the embankment. The driver of the bus, however, in furtherance of the exhortation by the owner of the bus and

the other accused suddenly steered and accelerated the bus towards and on to the embankment of the field and ran over the informant party with

the intention of killing them. The deceased and PW Jasbir Singh were entrapped under the bus and were severely injured. Informant and Tarjinder

Singh, however, jumped over to safety.

PW-2 (informant) Gurmeet Singh lodged verbal information about the incident at Police Station, Samba at 7.30 AM. On this information, Police

registered First Information Report (FIR) No. 144/98 (Ex.PW-GS) for commission of offences under sections 307, 147, 109 RPC and

investigation of the case was entrusted to Prem Nath Sharma, Sub Inspector (PW-13). The Investigating Officer (I.O.) proceeded to the spot and

commenced the investigation. The deceased succumbed to her injuries in the Medical College Hospital on 04.06.1998. Commission of offence

under section 302 RPC was, thus, added in the case.

After complying with the formalities of investigation the I.O. found established the commission of offences under sections 307,325,323,302 and

147 RPC against accused Tarlochan Singh (appellant) and under sections 307, 325, 323, 302, 147 and 109 RPC against the others. Charge-

sheet against the accused was filed in the committing court, which after committal came up for trial before learned 1st Additional Sessions Judge,

Jammu.

Learned trial court, after drawing proceedings against accused Balbir Singh for having absconded after commission of the offence, proceeded

against the other accused. Upon consideration of the record of the case and hearing both sides, learned trial court framed charges under sections

302, 307 and 149 RPC against accused Tarlochan Singh and under sections 302 and 307 RPC read with sections 149 and 109 RPC against the

other accused. All of them pleaded not guilty and claimed to be tried. Prosecution entered its evidence and examined 12 witnesses, namely,

Gurmeet Singh (PW-2), Tarjinder Singh (PW-3), Jasbir Singh (PW-4), Parshotam Singh (PW-5), Bittu (PW-6), Suraj Parkash (PW-7), Chuni

Lal, Patwari (PW-8), Dr. Daljeet Singh (PW-9), Dr. B.R. Sharma (PW-11), Joginder Singh (PW-12), Prem Nath Sharma, S.I. (PW-13) and

Gyan Chand Sharma, SHO (PW-14). The trial court recorded statements of the accused persons, who produced three witnesses, namely, Gopal

Singh, Mohan Lal and Jagjeet Singh in their defence.

Learned trial court after analysing and appraisal of the evidence convicted accused Tarlochan Singh (appellant) under section 302 RPC and

sentenced him. It is noticed, briefly, that learned trial court arrived at a conclusion that appellant while driving the vehicle intentionally caused bodily

injuries to the deceased and PW Jasbir Singh and it was only he who committed the offence. Learned trial court, however, acquitted the other

accused holding that prosecution has not been able to succeed in proving existence of a common object against the accused persons to attract

section 149 RPC. Learned trial court also held that it could not have been possible for the prosecution witnesses to hear the exhortation said to

have been made by the other accused to the appellant.

Appellant has assailed his conviction on the grounds that learned trial court has ‘misconstrued and mis-appreciated’ the evidence and

recorded the finding of guilt on the basis of conjunctures and surmises. There is no material in the evidence led by the prosecution that the accused

had any intention to commit murder of the deceased. Learned trial court has erred in relying upon the evidence of PW Parshotam Singh even

though it was proved that he was a planted witness and unworthy of any credence. The appellant has questioned legality of his conviction even

after acquittal of all of the other accused. It is contended that learned trial court could not have recorded finding of guilty against the appellant after

having recorded a finding of acquittal in favour of rest of the accused facing trial along with him. After having disbelieved the prosecution story, no

finding of guilt could have been recorded against the appellant.

The star argument of Mr. S.K. Anand, learned counsel for the appellant that was demonstrated at bar, related to the correctness and legality of

conviction of the appellant. Learned counsel argued with vehemence that the foundation of charges against all the accused persons including the

appellant was the same and there was no independent charge against the appellant so conviction of appellant neither is possible nor can sustain.

Mr. Anand contended that it was a case of identical charges against more than one accused and in such a situation question of convicting one

accused only after acquittal of all others does not arise. It was contended that learned trial court has erred in law by rejecting the prosecution story

as projected before the court on one hand and convicting the appellant on the basis of the same evidence on the other. Mr. Anand concluded that

when more than one accused are charged and tried together for identical charges with the aid of section 149 RPC one of them alone cannot be

convicted if involvement of the others in unlawful assembly is disbelieved. Mr. Anand relied upon Suraj Pal v. State of Uttar Pradesh, AIR

1955 SC 419.

We have noticed the two aspects of the prosecution case. One, the incident relating to the diversion of the course of water from the field of the

informant party towards their field by the accused party in the morning on 03.06.1998, in which, however, the appellant was not involved, and

two, the incident involving striking the bus by the appellant against the informant party and causing injuries to the deceased, which proved fatal and

PW Jasbir Singh outside the village. The other accused persons were said to have been sitting in the bus at that time and to have exhorted the

appellant to run the bus over the informant party. Contextually, it is noticed here that acquittal of the other accused persons has not been assailed

by the State and we have no reason or ground for reappraising the evidence insofar as it relates to their involvement in the incident.

We may point out here that the prosecution case as set up in the charge-sheet laid by the police against the appellant was one of commission of

offences of rioting, that is, use of force or violence by unlawful assembly of which he and the other accused were members punishable under

section 147 RPC, causing hurt to and attempt to murder of PW Jasbir Singh punishable under sections 323,325 and 307 RPC and murder of the

deceased under section 302 RPC. The other accused in addition were said to have committed offence of abetment punishable under 109 RPC by

exhorting the appellant to run the bus over the informant party. Also we may restate here that learned trial court framed charges under sections

302,307 and 149 RPC against the appellant and under sections 302 and 307 read with sections 149 and 109 RPC against the other accused. It

needs to be noticed here that charges were framed by the learned trial court by drawing a comprehensive order after meticulous consideration of

the record of the case and hearing both sides. With the acquittal of all the other accused the charges to the extent of formation of unlawful assembly

or commission of an offence by a member of that assembly punishable under section 149 RPC and abetment punishable under section 109 RPC,

however, have failed at trial.

The question that has been squarely raised before us is; whether the appellant could have been convicted after all the other accused were

acquitted, in view of the law laid down by the Supreme Court in Suraj Pal’s case (supra) relied upon on behalf of the appellant?

Section 149 RPC deals with constructive criminal liability and provides for punishment for an offence not committed by the person charged

under this section and in that it constitutes a distinct offence. It makes every member of an unlawful assembly liable for a criminal act, which was

committed by any member of the assembly in prosecution of the common object of that assembly or such as the members knew to be likely to be

so committed in prosecution of the common object of that assembly. Likewise, section 109 RPC deals with constructive criminal liability and

provides for punishment to abettor of an offence when the offence is committed by any person in prosecution of abetment by the abettor and in

that it also constitutes a distinct offence. It makes the abettor of an offence, if the offence abetted is committed, liable for punishment provided for

the offence.

In Suraj Pal’s case two persons, Bisheshwar (PW-2 therein) and Surajdin, were alleged to have received gun-shot wounds in an incident

of rioting by accused party involving twenty persons including the sole appellant therein. Bisheshwar survived but Surajdin died on the spot. The

appellant was said to have fired at them through a pistol killing Surajdin on spot. Another person named Gaya Prasad was said to have received

some minor lathi injuries. The Committal Magistrate committed 20 accused to take their trial before the Sessions Judge by framing charges under

sections 147, 323/149, 307/149 and 302/149 of the Indian Penal Code (IPC). There was a specific charge under section 148 IPC against Suraj

Pal and Dharm Raj, the former for being armed with a pistol and the latter for being armed with a pharsa, at the time of the commission of the

rioting. It is in respect of charges so framed by the committing Magistrate without any amendment or alteration that the accused were tried in the

Sessions Court. The learned Sessions Judge found all the accused guilty of the various offences and convicted and sentenced them. On appeal the

High Court held that the convictions often out of the 20 persons before it should be set aside and that the other ten persons including the appellant

therein were participants in the rioting. Accordingly, the High Court confirmed the conviction as against these ten under section 147 IPC. As

regards the charge under section 148 IPC Dharm Raj was acquitted but the conviction of Suraj Pal was maintained on the ground of his having a

pistol in his hand at the time of the rioting. There remained the three charges against the ten persons under sections 323/149 for injuries on Gaya

Prasad, 307/149 in respect of the gun-shot wounds received by Bisheshwar, and 302/149 in respect of the murder of Surajdin. It was held that

the assault on Gaya Prasad wasn’t proved beyond doubt and hence, all the accused were acquitted in respect of this charge. As regards the

other two charges, i.e., under sections 307/149 and 302/149, the High Court came to the conclusion that neither the attempt on the life of

Bisheshwar by pistol fire nor the actual death of Surajdin by pistol fire can be said to have been in prosecution of the common object of the

unlawful assembly nor to have been within the knowledge of the accused as being so likely. It was, therefore, held that none of the accused could

be found guilty under section 149, with reference to, the attempt on the life of Bisheshwar or the death of Surajdin. All the same, in view of the fact

that the evidence showed that the person who inflicted the pistol fire as against both was the appellant Suraj Pal, it was held that he was guilty of

the offences under sections 307 and 302 IPC. On this ground, therefore, the High Court, while it set aside the convictions and sentences of all the

accused under sections 307/149 and 302/149, maintained the convictions and sentence of the appellant under these two sections. The High Court

convicted the other nine persons under section 323/149 in respect of the injuries received by P.W. 2 and sentenced them therefor.

The Supreme Court in Appeal by Special Leave noticed that there have been no direct and individual charges against the appellant for the

specific offences under sections 307 and 302 IPC. The question thus taken up by their Lordships was, whether without such direct charges the

convictions and sentences for those offences can be maintained. Their Lordships observed in para No. 3:

It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or

other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for

an offence directly committed by him while being a member of such assembly.

The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which

may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the

assembly or was such as the members knew to be likely to be so committed. A charge under section 149, Indian Penal Code puts the person on

notice only of two alleged facts, viz. (1) that the offence was committed by one or other of the members of the unlawful assembly of which he is

one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed.

Whether or not section 149, Indian Penal Code creates a distinct offence (as regards which there has been conflict of views in the High Courts),

there can be no doubt that it creates a distinct head of criminal liability which has come to be known as ""constructive liability"" a convenient phrase

not used in the Indian Penal Code. There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with

reference to a specific charge in respect of the particular offence. Such a case is not covered by sections 236 and 237 of the Code of Criminal

Procedure. The framing of a specific and distinct charge in respect of every distinct bead of criminal liability constituting an offence, is the

foundation for a conviction and sentence therefore The absence, therefore, of specific charges against the appellant under sections 307 and 302,

Indian Penal Code in respect of which he has been sentenced to transportation for life And to death respectively, is a very serious lacuna in the

proceedings in so far as it concerns him. The question then which arises for consideration is whether or not this lacuna has prejudiced him in his

trial.

Their Lordships noticed that apart from the absence of any individual charges against the appellant therein for these specific offences, even the

charges against him and others relating to the injuries inflicted on P.W. Bisheshwar and the deceased Surajdin are somewhat vague as to the

authorship thereof. Their Lordships noticed further that the charges on which the accused were tried were vague as to who was the active author

of the pistol fire referred in the charge and held that when the charge was so pointedly vague, no accused was bound to direct his attention in his

defence to the question as to whether he or somebody else was the person who fired the pistol which brought about the gun-shot wounds. Their

Lordships observed in para No. 4:

.In a case so serious as that which involves the sentences of transportation for life, and of death, and particularly in a case like the present one,

where the death sentence has been awarded in the trial court by distinguishing this appellant from all the other accused in respect of his individual

act by way of pistol fire, it is difficult to say that the accused has not been prejudiced by the absence of specific charges under sections 307 and

302, Indian Penal Code

It would not be correct to say that in the case on hand no specific or direct charge was framed by the learned trial court against the appellant

or that all the accused including the appellant were identically charged. We may for ready reference reproduce the contents of charges framed by

the learned trial court against the appellant:

That you on 3-6-1998 at about 7-00 A.M. at Sunjwan, accompanied by other accused total 6 in numbers and in persecution of the common

object of killing complainant and others namely Parsan Kour, Jasbir Singh and Tarjinder Singh and on the command of accused Ranjit Singh,

Avtar Singh, Harbans Singh, Balkar Singh and Balbir Singh, who instigated you to-run over the deceased Mst. Parsan Kour, injured Jasbir Singh

and complainant Gurmit Singh and Tarjinder Singh, in order to kill them drove the bus No. 8815-JK02-E after turning it towards ‘Bana’

and ran over Parsan Kour and Jasbir Singh and caused them serious injuries and the injuries resulted to the death of Mst. Parsan Kour on 4-6-98

and thereby you have committed the murder of Parsan Kour and attempted to commit murder of Jasbir Singh, Gurmit Singh and Tarjinder Singh

and have thereby committed offences punishable under Section 302, 307, 149 RPC which is within my cognizance."" (underlining by us)

In order to identify the difference between the charges framed against the appellant on one hand and those framed against the other accused,

which were identical, on the other, we may also reproduce the contents of charges framed against one of the other accused:

That you on 3-6-1998 at about 7-00 a.m. at Sunjwan and others accused namely Tarlochan Singh, Avtar Singh, Harbans Singh, Balkar Singh

and Balbir Singh, total six in number with a common object of causing death of complainant Gurmit Singh and his companion Parsan Kour, Jasbir

Singh and Tarjinder Singh, commanded accused Tarlochan Singh to drive over the bus No. 8815-JK02E and kill them and on your command he

drove the bus and run over Mst. Parsan Kour and Jasbir Singh and Gurmit Singh-and Tarjinder Singh with an intent to kill them and caused serious

injuries to Parsan Kour and Jasbir Singh and Parsan Kour died because of the said injuries and an attempt to kill injured Jasbir Singh and Gurmit

Singh and Tarjinder Singh was made and have thereby committed the offences punishable under Section 302, 307 r/w Section 149 and 109 RPC,

which are within my cognizance."" (underlining by us)

Unlike Suraj Paul’s case where Hon'ble Supreme Court noticed that there had been no direct and individual charges for specific offences

against the appellant therein, difference in the charges framed against the appellant herein and those framed against ether accused is writ large and

would admit of no doubt whatsoever. The direct charge against the appellant individually was that he in order, to kill the informant and his party

including the deceased drove the bus No. 8815-JK02E after turning it towards the embankment (’Bana’) and ran over Parsan Kour and

PW-Jasbir Singh, caused them serious injuries and the injuries caused death of Parsan Kour and thereby he committed her murder. Besides, the

charge against him was that the said act was done by him under the instigation of the other accused persons in prosecution of a common object of

killing the informant and his party including the deceased. The appellant, therefore, was charged not only for being a member of the unlawful

assembly in terms of section 149 RPC or having acted under the command of other accused but specifically for having committed the act, that is,

turning the bus towards the embankment and thereby running over and causing death of the deceased and injuries to PW-Jasbir Singh. The

charges against the appellant, therefore, were for the commission of the offence of murder of the deceased punishable under section 302 RPC,

attempt to murder of PW-Jasbir Singh punishable under section 307 RPC and for committing the said offences in prosecution of the common

object of the unlawful assembly punishable under section 149 RPC. On the other hand, none of the other accused persons was charged with

having committed the act causing death of the deceased or injuries to PW-Jasbir Singh. They instead were charged for the murder and attempt to

murder by the appellant having been committed by the latter in furtherance of a common object of unlawful assembly of which they were said to be

the members and also for having exhorted the appellant to commit the art, that is, run the bus over the informant and his party and kill them. They

were accordingly charged for commission of offence under sections 302 and 307 with the aid of sections 149 and 109 RPC.

The appellant by the medium of the charges framed against him was put to clear and unequivocal notice that the act causing death of Parsan

Kour and injuries to PW-3 and thereby offences punishable under sections 302 and 307 RPC was committed by him alone and in addition that the

act was committed by him in prosecution of a common object of the unlawful assembly of which he and the other accused were the members and

under a command issued by the latter. The purpose of framing the charge therefore, was sufficiently and squarely served and it cannot be said that

any prejudice was caused to the appellant in defending himself nor there is any ground to hold that his conviction and sentence is illegal or

unsustainable due to acquittal of the other accused persons.

Now we take up the contention relating to appreciation of evidence by the trial court, in particular reliance on the evidence of PW-5,

Parshotam Singh about whom contention of the appellant is that he was a planted witness and therefore, unworthy of credence. Taking us through

the evidence of the witnesses cited as eye witnesses of the occurrence, learned counsel for the appellant would say that the trial court has acted

more on conjectures and surmises as no definite conclusion is possible on reading the evidence. Mr. Anand submitted also that it is not safe to rely

upon one aspect of prosecution version if the other aspect that is, the theory of common object of all the accused is disbelieved.

PWs 2, 3, 4 and 5 are eye witnesses of the occurrence. We may, however, state here that we are not adverting to the evidence relating to the

first aspect of the prosecution case, that is, the incident involving the diversion of the course of water by the accused persons towards their land

from the land of the informant party and any verbal dual between the accused persons and PW-3, Tarjinder Singh on that score for the reason that

appellant was not in picture at that time nor the factum of any unlawful assembly having been constituted after that incident with the object of killing

the informant party or anyone of them has been proved.

We have carefully read the statements of all the four eye witnesses being conscious that three of them, that is, PWs 2, 3 and 4 are family

members of the informant party including the deceased and PW-5 is a chance witness who belongs to a place other than the close vicinity of the

place of occurrence and claims to have been travelling by the bus used in commission of offence and alighted from that bus at the time of

occurrence.

We have carefully analysed the testimony of PW-5, Parshotam Singh, with due regard to the situation as it is said to be and compared it with

evidence of other witnesses including the testimony of the I.O. PW Prem Nath Sharma, S.I. and having done so, we are not convinced with the

manner in which he claims to have been present at the place of occurrence. We feel well founded difficulty in believing that, having regard to the

manner in which the bus is said to have been first steered by the appellant towards one side of the road, then reversed back to the road and

eventually run away from the place of occurrence, it could have been possible for him to alight from the bus at the place of occurrence. We rather

entertain a serious doubt about his presence on spot and having witnessed the incident. We therefore, exclude the testimony of this witness from

reliable evidence.

The only question, thus, calling for determination is; whether the evidence of the three eye witnesses, that is, PWs 2, 3 and 4, who are the

family members of the informant party, should have been relied upon and is sufficient to prove the charge under section 302 RPC against the

appellant for having committed the murder of the deceased, Parsan Kour as held by learned trial court. Before taking up the evidence of the eye

witnesses, we must refer to the statement of the appellant recorded by the learned trial court in terms of section 342 Cr. P.C. because in this

statement the appellant was expected to explain the circumstances appearing in the prosecution evidence against him so that he gets clear

opportunity to explain his position and lead evidence in defence, if so desired by him. The response of the appellant, however, was just his

ignorance about the incident.

We may state that it has quite often been held in various decisions of the Supreme Court and the High Courts and has been settled as a

principle of law that a close relative of victim of an offence and especially victim of murder generally would not bail out real culprit and fabricate a

false case even against hardest of his adversaries. Plea of false implication by closely related witnesses, therefore, cannot be entertained unless a

strong indication in this regard is available from the record of the case. Near relationship with victim of an offence per se is not a ground for

branding a person as interested witness and discarding his evidence. Nonetheless, evidence of close relatives of the victim is to be scrutinised and

considered with great care to rule out the possibility of false implication.

In Nagappan v. State, AIR 2006 SC 2716, Supreme Court after surveying a large range of authorities on the point has held as under:

As regards the first contention about the admissibility of the evidence of PW-1 and PW-3 being closely related to each other and the deceased,

first of all, there is no bar in considering the evidence of relatives. It is true that in the case on hand, other witnesses turned hostile and not

supported the case of the prosecution. The prosecution heavily relied on the evidence of PW-1, PW-3 and PW-10. The trial Court and the High

Court, in view of their relationship, closely analysed their statements and ultimately found that their evidence is clear, cogent and without

considerable contradiction as claimed by their counsel. This Court, in series of decisions, has held that where the evidence of ""interested witnesses

is consistent and duly corroborated by medical evidence, it is not possible to discard the same merely on the ground that they were interested

witnesses. In other words, relationship is not a factor to affect credibility of a witness, [vide Dalip Singh & Ors. v. State of Punjab, AIR 1953

SC 364, Guli Chand & Ors. v. State of Rajasthan, (1974) 3 SCC 698, Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614,

Masalti & Ors. v. The State of U.P., AIR 1965 SC 202, The State of Punjab v. Jagir Singh & Ors. (1974) 3 SCC 277 : AIR 1973 SC

2407, Lehna v. State of Haryana, (2002) 3 SCC 76, Sucha Singh & Anr. v. State of Punjab, (2003) 7 SCC 643 : 2003(6) JT SC 348,

Israr v. State of U.P., (2005) 9 SCC 616, S. Sudershan Reddy & Ors. v. State of A.P., (2006) 10 SCC 163 and Abdul Rashid Abdul

Rahiman Patel & Ors. v. State of Maharashtra JT 2007 (9) SC 194, Waman and Others v. State of Maharashtra, (2011) 7 SCC 295,

State of Haryana v. Shakuntla and Others, (2012) 5 SCC 171, Raju @ Balachandran & Ors. v. State of Tamil Nadu, 2012 (11) Scale

357, Subal Ghorai & Ors. v. State of West Bengal, (2013) 4 SCC 607].

We have carefully read the evidence of PWs 2, 3 and 4, namely, Gurmeet Singh, Tarjinder Singh and Jasbir Singh both in their chief as well as

the cross-examination. We have analysed their evidence by comparing the testimony of one with that of another. We have contextually gone

through the testimony of the I.O. who inter alia has proved the sketch map of the place of occurrence (Ex. PW-PS), which was prepared by him

on the day of occurrence. We have noticed the straightness of the 15 feet wide road at the place of occurrence. We have noticed underlying

unanimity in evidence of all the three eye witnesses that the appellant had run the bus over them when on seeing the bus and the other accused

persons sitting in it they had climbed the embankment to save themselves. All of them have unanimously stated that the deceased and PW Jasbir

Singh were run over by the bus whereas the other two witnesses succeeded in escaping to safely. We have noticed in the evidence of PW-3,

Tarjinder Singh, that appellant had steered the bus towards left and in the evidence of PW-4, Jasbir Singh, that the appellant had brought the

vehicle on to the embankment by applying ‘race’ to it. We have noticed in the evidence of PW-4 that the bus had entered five/six feet in the

field and we have noticed in the evidence of PW -3 that after the running over incident the appellant had steered the bus towards the road. All the

three witnesses have successfully cleared the scrutiny in their cross-examination and we observe an underlying grain of truth in their say. The

aforementioned details referred to by us in their evidence sufficiently show that they have given true and reliable account of the manner in which the

occurrence did take place. We find no reason for entertaining any idea that the family members, after having met with the situation as horrendous

as it was in which one life was lost and another hardly escaped death, would have projected a false picture. Truthfulness of the version given by the

witnesses is supported by quick lodging of the report by one of them (PW-2) and corroboration of his evidence by the contents of the FIR proved

as Ex. PW-GS before the trial court. We, therefore, do not feel persuaded to accept appellant’s contention that learned trial court committed

any error in appreciating and relying upon the evidence of the three eye witnesses.

Further corroboration to the evidence of the eye witnesses is provided by the evidence of PW-11, Dr. B.R. Sharma, who conducted autopsy

on the dead body of the deceased on 04.06.1998 at 11.00 AM and proved the Postmortem report issued by him as Ex. PW-BR. Cause of death

according to the Postmortem was ‘hemorrhage and shock as result of multiple injuries consequent upon blunt force impact’ and time of

death was about six hours prior to the autopsy.

Another contention raised on behalf of the appellant is that it is not safe to accept one part of the prosecution case after the other part or a part

of evidence is rejected. Argument of the learned counsel for the appellant was that once the evidence in regard to formation of unlawful assembly

and any common object or abetment by the other accused has not been accepted, entire prosecution case becomes unreliable.

There is no known principle of law that when a part of prosecution case is not proved or a part of evidence is not relied upon the entire case

should be rejected. In sifting evidence in a criminal case, a duty is cast on the court to separate grain from the chaff unless to do that is totally

impossible. Whole case cannot be thrown as part of it is not proved unless existence of one part is not separable from the other. There may be a

situation when inconsistent versions emerge from the evidence. In such a situation it may become difficult to arrive at a particular conclusion and

accused may earn benefit of doubt. Situation, however, would be otherwise, when one aspect of the case is not proved but the other aspect is

sufficiently proved and the two aspects are clearly separable. We have noticed from the impugned judgment and we agree with the learned trial

judge that it could not have been possible for the witnesses to hear the conversation between the other accused and the appellant inside the bus

and that in our view is the main reason for disbelieving the involvement of the other accused in the act of offence committed by the appellant. There

is a good reason for not relying upon the evidence of PW-5 as stated by us above. We, however, see no good reason for rejecting altogether the

prosecution case, which is supported by the direct evidence in regard to the involvement of the appellant.

For all that said and discussed above, we do not find any merit in the grounds on which the appellant has assailed the impugned judgment. We

have rather found that the learned trial Court has carefully and properly appreciated the evidence separated grain from chaff and applied settled

principles of law while recording conviction against the appellant and imposing the sentence. The judgment rendered by the trial Court, therefore,

does not deserve any indulgence in appeal.

Viewed thus, this appeal is dismissed as without any merit and conviction and sentence recorded by the trial Court are upheld and confirmed.

Reference for confirmation of the sentence stands answered accordingly.

Appellant shall surrender before the trial court within two weeks hereafter for undergoing the sentence. In case of his failure, learned trial court

shall proceed in accordance with law so that sentence is executed.

Registry shall remit back record of the trial court along with certified copy of this judgment.