IMPORTANT POINTS
1. Considering that campus rivalry has now deteriorated into a bane of the country, the time is now ripe for legislative interference to salvage the campus free of political activities.
2. Omission on the part of the investigating agency to seize the clothes worn by a witness which were smeared with blood during the rescue operation, is not a flow of that type to invite the consequence of jettisoning his testimony.
3. A little delay in lodging the FIR with the Magistrate should not be viewed from an unrealistic angle.
4. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examinations of a witness even if it is a material witness.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987-Sections 6 and 19-Appeals against acquittal-Campus politics-Murderous assault-Deceased, a student in M.A. (Eco.) stabbed to death-His fellow student (PW 6) received grievous hurt-Twelve persons prosecuted -Charge included u/s 6 TADA-Case registered on statement of PW3-PW6, injured examined as the eye witness-Testimony of PW6 fully corroborated by other eye witness PW3-Non examination of another material witness-No adverse inference can be drawn-Exhortation made by A-9 to his companions to attack deceased-A9 and A7 inflicted stab injuries on deceased-A5 inflicted grievous hurt on costal margin of PW6-A-1 and A-6 acted jointly to murder deceased-A1 and A6 convicted u/s 302/34-A5 convicted u/s 326-A9 convicted u/s 326/34-Acquittal for remaining accused would stand undisturbed.
       Held : Harpal Singh (PW-3), at the time he gave evidence, was a law graduate, though he was only a student of M.A. (English) when the occurrence took place. He was a resident of the hostel in the precincts of which the incident happened, as observed above. It is he who gave the first information statement to the police in which also he claimed to have seen the occurrence and in which he narrated the incident with all details. He was one of those who helped the injured persons to reach the hospital at the earliest point of time. Normally, these broad circumstances would ensure that he would certainly have seen the occurrence. (Para 12)
       The cross examiner did not challenge that part of the evidence of PW-7 that Harpal Singh gave a narration of the occurrence to PW-7 on their way to the hospital. There is thus reassurance regarding the fact that Harpal Singh was a witness to the occurrence. There is absolutely no reason to doubt the testimony of PW-7 nor has the trial court castigated his testimony in any manner. PW-7, therefore, gives us the confidence to believe that Harpal Singh has witnessed the occurrence. If so, what Harpal Singh (PW-3) told the police in the First Information Statement must be the fresh account of the true facts. If he has seen the occurrence, we see no reason for him to substitute some innocent persons as assailants. (Para 18)
       The aforesaid discussion leads to the following conclusions :
       A-9 made a clarion call to his companions to attack Jasbir Singh and thereupon A-9 and A-7 inflicted stab injuries on the chest of the deceased. A-5 has inflicted grievous hurt on the costal margin of Sumer Singh A-1 and A-6 have acted conjointly with the common intention to murder Jasbir Singh. A-5 cannot be convicted of anything more than causing grievous hurt to PW-6. The exhortation made by A-9 would, no doubt, amount to facilitation of the crime, but we think that in the circumstances it was probable that he would not have intended causing more harm than grievous hurt to Jasbir Singh. In such a situation, we are not inclined to convict A-9 of the offence under Section 302 read with Section 34 of the IPC, but we unhestitatingly hold that he has committed the offence under Section 326 read with Section 34 of the IPC. (Para 24)
       (ii) Evidence Act, 1872-Partisan witness-He belonged to students wing which was rival to accused students-It may not be safe to make uncorroborated evidence of such a witness the sole basis for reversing order of acquittal-If testimony of such a witness is to be used as sole basis of conviction-It should be of such a calibre as to be regarded as wholly reliable. (Para 10)
       (iii) Evidence Act, 1872-Omission on part of investigating agency to seize clothes worn by a witness which were smeared with blood during rescue operation-Not a flow of that type to invite consequence of jettisoning testimony of that witness.
       Held : If the clothes worn by the injured or the victims were not recovered by the investigating team that perhaps would have provided a handle to the defence to attack the prosecution case. But no investigating agency would normally take the trouble to seize the clothes worn by witnesses at the time they saw the occurrence merely because their clothes too had collected stains of blood during any post event activities. At any rate, the said omission on the part of the investigating agency is not a flaw of that type to invite the consequence of jettisoning his testimony. (Para 13)
       (iv) Evidence Act, 1872-Section 154 -First Information Report-Delay in recording first information statement-Courts not to take a pedantic view in this matter-A little delay in lodging FIR with magistrate-Not to be viewed from an unrealistic angle.
       Held, reason which the trial judge highlighted against PW-3 (Harpal Singh) was the delay in recording first information statement. According to the trial court as the occurrence happened at 1.30 p.m. and as the Sub-Inspector of police received intimation at 2.45 p.m. that injured Sumer Singh was admitted in the Civil Hospital, Kurukshetra, the Sub-Inspector should have rushed to the hospital and recorded the statement of Sumer Singh. The fact cannot be overlooked that Sumer Singh who was admitted in the Civil Hospital in a very serious condition was emergently shifted to the Post-Graduate Institute of Medical Education Chandigarh at 3.50 p.m. and that the Sub-Inspector who reached the Civil Hospital had to collect the statement of Harpal Singh at 4.50 p.m. For Sumer Singh and his kith and kin as also for the doctors, the life of Sumer Singh was of prime value and that every effort should be taken to save it. The trial judge seems to have taken a pedantic view in this matter. (Para 14)
       The trial Court then harped upon the need for speedy despatch of the FIR to the Magistrate. Since four hours time had elapsed as between making the FIR and its reaching the hands of the Magistrate, the trial Judge felt that the FIR would have been completely cooked up and he observed that Harpal Singh would not have seen the occurrence. The said conclusion based on the above reasoning is apparently fragile. Trial Court should not have adopted a tenuous approach regarding the delay in lodging the FIR. Even if the residence of the Chief Judicial Magistrate was close-by, the fact that the FIR was lodged with him within four hours is not ignorable. No doubt the ideal situation is that FIR is lodged with utmost speed and despatch but if the ideal is not adhered to in any case, the corollary is not castigation of the evidence of the maker of the FIR. In the present set up no police station can be expected to have only one case to look into. A little delay in lodging the FIR with the Magistrate should not be viewed from an unrealistic angle. (Para 15)
       (v) Criminal Procedure Code, 1973-Section 162-Witness the informant when interrogated by Investigating Officer subsequently, he gave more details regarding the occurrence-Whether his evidence becomes suspect ?-(No).
       Held : Firstly, the said supplementary statement recorded by the Investigating Officer could only have been used to contradict the witness in view of the interdict contained in Section 162 of the Code of Criminal Procedure. Secondly, that statement cannot be used for comparing it with the FIR. That apart, if the Investigating Officer elicited more details from the same person during any subsequent interrogation how could his evidence become suspect? It is not advisable to throw the evidence of the informant overboard merely because the Investigating Officer succeeded in eliciting further details or even fuller details during subsequent interrogation. (Para 16)
       (vi) Evidence Act, 1872-Section 114 -Illustration (g) in Section 114 is only permissive inference and not a necessary inference-It should not be a mechanical process to draw adverse inference merely on strength of non-examination of a witness even if it is a material witness-It is primarily for prosecutor to decide which witness he should examine to reveal prosecution case-However, selection must be made fairly and honestly.
       Held : A Public Prosecutor may give up witnesses during trial to avert proliferation of evidence which could save much time of the court unless examination of such a witness would achieve some material use. Randeep Rana, if examined would only have helped in duplication of the same category of evidence as the other two eye witnesses. The Public Prosecutor, therefore, cannot be blamed for adopting the course of not examining him. If the accused thought that Randeep Rana s evidence would help the defence, it was open to the accused to examine him as a defence witness. (Para 21)
       No doubt, Randeep Rana would have been a material witness. But merely because he was not examined by the prosecution a criminal court is not to lean to draw the adverse inference that if he was examined he would have given a contrary version. The illustration (g) in Section 114 of Evidence Act is only a permissible inference and not a necessary inference. Unless there are other circumstances also to facilitate the drawing of an adverse inference, it should not be a mechanical process to draw the adverse inference merely on the strength of non-examination of a witness even if it is a material witness. (Para 23)
       (vii) EDUCATION-Campus rivalry-Need for legislative interference to salvage campus free of political activities.
       Held : It is a malady in our country that political parties allure young students through their student wings. They do so because it is an easy method for enlisting support and participation of student population to their political programmes. Students, particularly in adolescent age, are easily swayable by political parties without much effort or cost as young and tender minds are susceptible to easy persuasiveness by party leaders. But the disturbing aspect is that most of the political leaders do not mind their student supporters developing hostility towards their fellow students belonging to rival political wings. (Para 25)
       We think that the time is now ripe for legislative interference to salvage the campus free of political activities. We leave it to the members of legislatures and leaders of the country to ponder over this with the seriousness it deserves and to bring forth necessary measure to plug it. (Para 27)

JUDGMENT

Thomas, J.-This case reflects the bizarre offshoot of unholy campus politicisation culminating in the premature end of Jasbir Singh - a student who reached final year in M.A. (Economics). The venue of the murderous onslaught as the precinct of Nar Hari Hostel attached to Kurukshetra University in Haryana and the time was lunch recess on 23-10-1986. Jasbir Singh was stabbed to death while his fellow student Sumer Singh received grievous hurt. Twelve persons including some student leaders of the rival wing were sent up for trial before the Designated Court of Kurukshetra as the charge included Section 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "the TADA ). But all of them were acquitted by the trial Judge and these appeals have been filed under Section 19 of the TADA.

2. The backdrop, disquieting from the angle of campus discipline, was the college students union election on the lines of political party loyalties of the students, Himat (9th accused) was a candidate for presidentship of the students union and he was opposed by Jasbir Singh, being head of the rival students wing owing allegiance to another political party. Himat won the election, but its fallout was the acrimonious tension which persisted for long between two rival student wings in the campus. Skirmishes erupted as a daily occurrence between them and police had to register criminal cases against offending students. On the previous day of occurrence in this case the victorious group made all efforts to get their budget proposals approved by the general body but such efforts were thwarted by the stiff resistance offered by Jasbir Singh and his followers. This became the immediate cause for the aggravated hostility between the group led by Himat and the rival group led by Jasbir Singh.

3. What happened during the occurrence in this case, according to the prosecution version, was this: At about 1.30 p.m. Jasbir Singh and Harpal Singh (PW-3) - who was studying in the first semester of M.A. (English) - and Randeep Rana (who was the Secretary of the students Union to which Jasbir Singh belonged) were standing outside the canteen of Nar Hari Hostel. Suddenly Himat (A-9) caught hold of Jasbir Singh and then Satparkash (A-6) slapped a knife blow on the left chest of Jasbir Singh which was followed by Satbir Singh (A-1) inflicting another knife blow on the left side of his chest. When Sumer Singh (PW-6) intervened, presumably to rescue his colleague, he was prevented from nearing the victim by Jeevan Singh (A-8) and Sandhip Singh (A-10). But right at that time Devinder Singh (A-5) gave a stab injury on Sumer Singh on his front costal margin. The other assailants also attacked the deceased with iron rods, clubs, and hockey sticks etc.

4. Jasbir Singh breathed his last very soon, but Sumer Singh did not die as he was operated upon emergently at the Post Graduate Institute of Medical Education, Chandigarh which saved his life.

5. The case was registered on the strength of the statement furnished by Harpal Singh (PW-3). Sumer Singh, the injured, was examined as PW-6 and no other eye witness was examined. The trial Court pointed out certain anomalies in the evidence of Harpal Singh and declined to believe that he had witnessed the occurrence. What remained was the evidence of Sumer Singh. Since he was on of the injured in the occurrence and was loyal to the opposite students wing, the trial Judge found his evidence insufficient for establishing the guilt against the accused. Accordingly, he acquitted all the accused.

6. While hearing the appeals, learned counsel for the accused reminded us of the oft repeated caution that acquittals should not lightly be disturbed in appeals. We have bestowed our consideration on the facts of these appeals keeping the aforesaid rule of caution.

7. Post-mortem examination conducted on the body of Jasbir Singh revealed that out of 11 ante-mortem injuries found by the doctor, one was a spindle shaped incise

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1997 Supreme(SC) 922

Cases Referred (7)