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5.M/s R.K. Garg, senior advocate and R.L. Kohli, advocate, appearing for the appellants in Criminal Appeal No. 163 of 1982 as well as for the respondents in Criminal Appeal No. 162-A of 1982, categorised the testimony of Raj Singh PW 8 and Jagmal Singh PW 10 as unreliable and not trustworthy. Learned counsel argued that Raj Singh PW 8 was a relation of deceased Suraj Bhan and appears to have been called from his home, at a far off place, to be a witness because nobody in the locality, where the occurrence allegedly took place and from where the bloodstained earth was collected, was prepared to support the prosecution case regarding the alleged assault by the accused party. It was submitted that the absence of bloodstains on the clothes of Raj Singh PW 8 and Jagmal Singh PW 10, who deposed to having personally lifted and removed Suraj Bhan in an injured condition with bleeding injuries in a tonga to the Primary Health Centre goes to show that they were in fact not present at the place of occurrence and had not taken Suraj Bhan to the Primary Health Centre and had been introduced in the case much later. Learned counsel then argued that the medical evidence belied the ocular testimony inasmuch as none of the injuries, on the deceased could correspond to the weapons alleged to have been used by the accused party and this serious infirmity, according to the learned counsel, was sufficient to discard the testimony of PW 8 and PW 10. Reference in this behalf was made to the absence of any injury with a jailley on the deceased. It was then urged that the first information report had been ante-dated and ante-timed and the argument was sought to be supported by the absence of an entry about the arrival of injured Suraj Bhan in the Primary Health Centre, Pataudi, in the records of the Primary Health Centre. Learned counsel argued that Ext. PD which was signed by PW 3 Ganesh Dutt Sharma appears to have been manufactured subsequently and since Sultan Singh SI PW 11, the investigating officer, was admittedly hostile to the accused party, he had created all these false clues with a view to secure the conviction of the accused persons. According to the learned counsel since Bhanwar and Balwant Singh, in whose presence recovery of gandasi is alleged to have been made on the disclosure statement of Mahabir accused, have not been examined, the evidence relating to the alleged recovery of gandasi becomes doubtful. It was submitted that keeping in view the medical evidence and other circumstances of the case the High Court was fully justified in recording an order of acquittal of Mahabir Singh and Lal Singh, and since the reasoning given by the High Court could not be said to be perverse or unreasonable, no interference was called for insofar as their acquittal is concerned.

9.Sultan Singh PW 11 had reached Primary Health Centre, Pataudi before Suraj Bhan was removed to General Hospital Gurgaon and had recorded the statement of PW 8 Raj Singh, Ext. PK-1 at the Primary Health Centre itself. The formal case was thereafter registered and the investigation taken in hand. A copy of the special report was sent to and received by the Additional Chief Judicial Magistrate at 1.30 a.m. on 27-10-1980. We are, therefore, satisfied that the first information report was promptly lodged and neither the occurrence was ante-timed nor the first information report was ante-dated as argued by the learned counsel for the accused. There is, as a matter of fact, no factual foundation for the argument to the contrary raised by learned counsel for the accused and the submission that the first information report was delayed does not rest on any factually correct premises. Both the High Court and the trial court were perfectly sound in their approach to hold that the first information report had been lodged promptly and that both Raj Singh PW 8 and Jagmal Singh PW 10 were the eyewitnesses who had witnessed the occurrence and that their testimony did not suffer from any infirmity whatsoever and that both of them were truthful witnesses. In our opinion the prosecution has established beyond any shadow of doubt the complicity of the appellants Balwant Singh and Abhey Singh. The ocular testimony stands amply corroborated by the medical evidence. So far as the conviction of Balwant Singh and Abbey Singh is concerned, the trial court as well as the High Court have correctly appreciated the evidence and rightly placed reliance upon the testimony of PW 8 Raj Singh and PW 10 Jagmal Singh, which stands amply supported by PW 7 Jagdish and PW 11 Sultan Singh, investigating officer. The medical evidence has also lent sufficient credence to the ocular testimony. Nothing has been brought on the record, as was also found by the learned Sessions Judge and the High Court, which may cast any doubt on the testimony of Raj Singh and Jagmal Singh with regard to the time or place of occurrence and the manner of assault on the deceased by the appellants. There is nothing on the record to show that the clothes of PW 8 and PW 10 had not been stained with blood while lifting the deceased and the mere negligence of the investigating officer to take their clothes into possession cannot affect the trustworthiness of these witnesses. The explanation given by PW 3 about the absence of entry of the arrival of injured Suraj Bhan at the Primary Health Centre is sound and does not detract from the reliability of the prosecution case.

11.We will demonstrate by reference to few important circumstances, as to why the High Court was not justified in interfering with the order of conviction of Mahabir respondent.

12.From the testimony of Raj Singh PW 8 and Jagmal Singh PW 10, we are satisfied that the account of occurrence given by them is intrinsically correct. According to both these witnesses, Mahabir had given a gandasi blow on the head of the deceased Suraj Bhan. Ext. P-5 was the gandasi in question and as already noticed, it was recovered on the disclosure statement made by Mahabir, Ext. PO. According to the medical evidence, injuries 1, 2 and 9 which were present on the head of the deceased could have been caused by gandasi Ext. P-5. The Chemical Examiner and the Serologist found gandasi Ext. P-5 to be stained with human blood of 'A' group which corresponded to the blood group of deceased Suraj Bhan. All these pieces of unimpeachable evidence would go to show not only that there was no contradiction between the ocular testimony and the medical evidence insofar as the assault on Suraj Bhan by Mahabir Singh with gandasi Ext. P-5 is concerned but also that the evidence on the record conclusively establishes that Mahabir Singh respondent had caused the injury with gandasi Ext. P- 5 on the head of the deceased. The High Court did not deal with these factors in their correct perspective at all and acquitted Mahabir Singh, without trying to properly appreciate and sift the evidence on the record by taking recourse to surmises and conjectures. The High Court erred in not taking note of the report of the Serologist Ext. PJ- 1, which established that the bloodstains on the weapon of offence, Ext. P-5 tallied with the blood group with which the clothes of the deceased had been stained from his bleeding injuries. This has resulted in grave miscarriage of justice. The High Court itself disbelieved the plea of alibi which had been set up by Mahabir Singh. In the words of the High Court:

13.After having disbelieved the plea of alibi of Mahabir, the High Court fell in error in not properly appreciating the other evidence on the record to determine his guilt. Keeping in view the evidence relating to the recovery of gandasi Ext. P-5 which fully corroborates the testimony of PW 8 and PW 10, coupled with the report of Serologist Ext. PJ-1, the order of acquittal passed by the High Court insofar as Mahabir Singh respondent is concerned, cannot be sustained. The approach of the High Court in acquitting him is totally slipshod and conjectural. The opinion of the High Court is totally perverse and unreliable. The High Court was in error in finding that the medical evidence belied the ocular testimony.'There is no basis for that opinion. The reasoning given by the trial court, on the other hand, was sound and the High Court was not justified in upsetting the same.