Jagdish vs The State Of Haryana

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s).1864 OF 2009

JAGDISH AND ANOTHER ...APPELLANT(S)

VERSUS THE STATE OF HARYANA ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The two appellants have been convicted under Sections

302, 149 and 148 of the Indian Penal Code (hereinafter referred

to as ‘IPC’). Originally there were 13 accused. Only six were

charge-sheeted. Two of them were tried by the juvenile court.

Seven were summoned under Section 319. The Trial Court

convicted three persons. One of them, Ishwar has been

acquitted by the High Court.

Signature Not Verified Digitally signed by GULSHAN KUMAR ARORA Date: 2019.08.06 16:35:45 IST Reason: 1

2. Sri S.R. Singh, learned senior counsel, on behalf of the

appellants submits that once the other accused have been

acquitted, the two appellants alone cannot be convicted with the

aid of Section 149 of the Indian Penal Code. The High Court

erred in convicting with the aid of Section 34 in absence of a

charge framed under that Section. There is no evidence of any

common intention, displaying a prior meeting of minds to

commit the assault. PW-1 and PW-8 were not eye witnesses.

They reached after the occurrence. Their claim to be eye

witnesses is highly improbable from their own evidence. An

alternative submission was made that in any event at best it was

a case for conviction under Section 304 Part-II I.P.C. Reliance

was placed on Dalip Singh vs. State of Punjab, AIR 1953 SC

364::1954 SCR 145, and Sakharam Nangare vs. State of

Maharashtra, 2012 (9) SCC 249.

3. Learned counsel for the State submitted that PW-1 and

PW-8, the eye-witnesses to the occurrence had stated that

Appellant no.2 made the fatal assault on the head of the

deceased with a lathi while appellant no.1 also assaulted the

2 deceased. The parties resided in the same locality and there is

evidence of a street light. Relying on Khem Karan and others

vs. State of U.P. and another, 1974 (4) SCC 603, it was

submitted that because PW-1 was the sister of the deceased, the

credibility of her evidence as an eye-witness to the occurrence

cannot be doubted to grant acquittal in the nature of materials

available on the records.

4. We have considered the submissions on behalf of the

parties and perused the materials on record. The parties resided

in the same locality and were known to each other. Animosity

existed between them because the son of the second appellant

had written love letters to the daughter of PW-1. Earlier an

altercation had taken place between the parties on 20.05.1995

leading to a police case being lodged against both sides. There

was another incident on 12.06.1995 for which the appellants and

the deceased were proceeded with under Sections 107, 151,

Cr.P.C. The deceased had been released on bail and was

3 returning from the house of PW-1 on 16.06.1995 at about 9.00

P.M. when the assault is stated to have taken place.

5. PW-8 and PW-1 are husband and wife holding arms licence

in their individual names. They are stated to have been

accompanied to the place of occurrence by Kamla the sister of

PW-8 and one Pali Ram who was also an arms licensee.

Surprisingly, the latter two have been given up by the

prosecution and have not been examined. All four are stated to

have moved away from the place of assault out of fear, as

claimed. If three of them were possessed of weapons there has

to be an explanation why they did not act in self defence when

the assault is alleged by lathis, gandasi and guns. It is also

difficult to accept that her husband PW-8 and Palli continued to

hide in fear while PW-1 accompanied by her sister-in-law alone

shortly returned to the place of occurrence to check on the

deceased. An additional fact which is not only improbable but

highly unnatural according to normal societal rural customs and

mores is that PW-1 accompanied by her sister-in-law alone went

to the police station at 3.00 A.M, a kilometer away, to lodge the

4 F.I.R. while her husband and Pali Ram who was staying with

them remained at home.

6. In the F.I.R. PW-1 made generalized allegations of assault

by all the 13 accused who are stated to have surrounded the

deceased. But her court statement was more specific with

regard to the nature of assault made by each of the accused. A

total of 11 injuries were found on the person of the deceased.

The first injury was bone deep in the right parieto occipital

region with damage to brain and pieces of bone in the wound.

There was injury on the neck, lacerated wound over the right

shoulder, lacerated wound over the dorsum of both ring and

little fingers causing fracture, lacerated wound over the right

wrist joint over the middle of forearm, on the left side of the

chest wall, over the iliac crest, over the left scapular region with

a linear incision due to sharp weapon, over left deltoid region

and lacerated wound over the right knee left ankle and left

forearm. The two appellants were armed with lathis by which an

incised wound could not have been caused. In any event, the

5 number of injuries on the deceased leaves us satisfied that it

was the result of a mob assault and not an assault by the two

appellants alone.

7. The High Court has committed an error of record by

considering PW-8 to be an eye witness without any discussion

when his presence at the time of occurrence has been

disbelieved by the Trial Court. With regard to PW-1, the Trial

Court has itself observed that her deposition “does not contain

the entire truth and it makes the court to sit up and to find out

the kernel out of the chaff”. This observation assumes

significance in view of the acquittal of the remaining accused by

the Trial Court itself, excluding the juveniles.

8. The question that arises to our mind is that in the mob

assault by 13 persons who had surrounded the deceased at

night, PW-1 was the sole eye-witness. Even if a light was

burning some of them undoubtedly must have had their back to

PW-1 making identification improbable if not impossible. The

6 witness has been severely doubted both by the trail court and

the High Court to grant acquittal to the other accused. Can the

evidence of a solitary doubtful eye witness be sufficient for

conviction? We may have a word of caution here. Conviction on

basis of a solitary eye witness is undoubtedly sustainable if there

is reliable evidence cogent and convincing in nature along with

surrounding circumstances. The evidence of a solitary witness

will therefore call for heightened scrutiny. But in the nature of

materials available against the appellants on the sole testimony

of PW-1 which is common to all the accused in so far as assault

is concerned, we do not consider it safe to accept her statement

as a gospel truth in the facts and circumstances of the present

case. If PW-1 could have gone to the police station alone with

her sister-in-law at an unearthly hour, there had to be an

explanation why it was delayed by six hours. Given the harsh

realities of our times we find it virtually impossible that two

women folk went to a police station at that hour of the night

unaccompanied by any male. These become crucial in the

background of the pre-existing enmity between the parties

7 leading to earlier police cases between them also. The possibility

of false implication therefore cannot be ruled out completely in

the facts of the case.

9. The High Court concluded that the appellants alone were

the assailants of the deceased. Ishwar is also stated to have

assaulted with a lathi capable of causing lacerated wounds. We

find it difficult to hold that the appellants were any differently

situated than Ishwar. The susceptibility of eleven injuries,

including incised wounds, by two accused is considered highly

improbable.

10. Therefore, in the entirety of the facts and circumstances of

the case, the relationship between PW-1 and the deceased, the

existence of previous animosity, we do not consider it safe and

cannot rule out false implication to uphold the conviction of the

appellants on the evidence of a doubtful solitary witness, as

observed in State of Rajasthan vs. Bhola Singh and Anr. ,

8 AIR 1994 SC 542, (Crl. Appeal No. 65 of 1980 decided on

25.08.1993):

“4. From the above-stated facts, it can be seen that the case is rested entirely on the solitary evidence of P.W.1. The High Court has pointed out several infirmities in the evidence of P.W.1. It is well-settled that if the case is rested entirely on the sole evidence of eye-witness, such testimony should be wholly reliable. In this case, occurrence admittedly took place in the darkness….”

11. In Lallu Manjhi and another vs. State of Jharkhand ,

(2003) 2 SCC 401, it was observed that if ten persons were

stated to have dealt with blows with their respective weapons on

the body of the deceased, and that if each one of them

assaulted then there would have been minimum of ten injuries

on the person of the deceased. In the present case, as noticed

there are 11 injuries on the person of the deceased. Giving the

benefit of doubt granting acquittal, it was observed as follows:

“13….. The version of the incident given by the sole eyewitness who is also an interested witness on account of his relationship with the deceased and being inimically disposed against

9 the accused persons is highly exaggerated and not fully corroborated by medical evidence. The version of the incident as given in the Court is substantially in departure from the earlier version as contained and available in the first information report. We cannot, therefore, place reliance on the sole testimony of Mannu (PW 9) for the purpose of recording the conviction of all the accused persons.”

12. We therefore find the order of the High Court to be

unsustainable and accordingly set it aside. The appellants are

acquitted. They are directed to be released forthwith if they are

not required in any other case.

13. The appeal is allowed.

.……………………….J. (Ashok Bhushan)

………………………..J. (Navin Sinha) New Delhi, AUGUST 06, 2019.

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