Parkash vs The State Of Haryana

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.421 OF 2011

DHARMA @ DHARAM SINGH & ANR. ... APPELLANT(S)

VS.

STATE OF HARYANA ... RESPONDENT(S)

J U D G M E N T

Abhay S.Oka, J.

Heard the learned counsel appearing for the parties.

2. This is an appeal against the order of conviction

of the appellants who are accused Nos.1 and 2. The

appellants were convicted by the Trial Court for the

offence punishable under Section 302 read with 34 of the

Indian Penal Code (for short "IPC"). The allegation

against them was of intentionally committing murder of

one Sarabjit Singh who was the Sarpanch of the concerned

village. The incident is of 23rd June, 1992. The order Signature Not Verified Digitally signed by Anita Malhotra of conviction by the Trial Court has been affirmed by the Date: 2023.10.12 16:49:06 IST Reason:

impugned judgment of the High Court. We may note here

Criminal Appeal No.421 of 2011 Page 1 of 5 that this Court by the order dated 9th July, 2012 enlarged

the appellants on bail by noting that they have already

undergone incarceration for a period of about eight

years.

3. As the Advocate-on-Record of the appellants was

elevated as a Judge of a High court, notice for making

alternative arrangement was issued to both the

appellants. Notice was served to the second appellant,

but could not be served to the first appellant for want

of complete address. Therefore, the appeal as far as the

first appellant is concerned has been dismissed for non-

prosecution. This being an appeal against conviction,

the case of the first appellant on merits has to be

examined. Therefore, the order dismissing the appeal qua

appellant No.1 is recalled. We requested the learned

counsel appearing for the second appellant to assist us

for dealing with the appeal of the first appellant. He

has readily agreed.

4. PW-2-Sukhi and PW-3-Rattan Singh are the only two

alleged eye witnesses. As far as PW-3 is concerned, he

did not support the prosecution and therefore, he was

declared as hostile.

Criminal Appeal No.421 of 2011 Page 2 of 5

5. So far as the version of PW-2 who is the first

informant is concerned, he stated that he along with the

deceased had gone to a place known as Chainsa. On the

return journey, they got down from the bus at Mohna. The

incident occurred around 8.00 to 8.30 p.m., when they

were near a tubewell. According to him, four persons

emerged out of bushes. One of them abused the deceased.

The first appellant fired a shot at the deceased. The

appellants dragged the deceased towards the field on the

left side and thereafter, fired two shots. The witness

further stated that he cannot tell the name of the

persons who had fired shot at the deceased.

6. Assuming that PW-2 really knew the appellants

before the incident and he had seen the appellants while

firing shots at the deceased, we find that PW-2 did not

identify the accused who were present in the Court as the

accused who killed the deceased. In fact, the

examination-in-chief of the PW-2 shows that the witness

has not identified the accused who were present in the

Court as there is no such statement in the examination-

in-chief. A witness who claims to be an eye witness must

be in a position to identify the accused in the Court.

Criminal Appeal No.421 of 2011 Page 3 of 5

7. With a view to ascertain whether Annexure P-4 is

the correct reproduction of the deposition of PW-2, we

have perused the original deposition of PW-2 from the

record of the Trial Court and we find that even the

original deposition does not record that the PW-2

identified the accused in the Court.

8. Assuming that PW-2 had seen the appellants firing

shots at the deceased, unless the said eye witness

identifies the accused as Dharma and Parkash, the

prosecution cannot establish that the accused who were

prosecuted were guilty of the offence. As stated

earlier, the only other eye witness PW-3 was declared as

hostile.

9. Therefore, this is a case where the eye witness has

not identified both the accused in the Court. In the

circumstances, the appellants could not have been

convicted in the absence of their identification by the

eye witness before the Court.

10. Hence, the appeal is allowed. The impugned

judgment dated 30th May, 2008 passed by the Division Bench

of the High Court and dated 23rd October, 1998 passed by

the Sessions Judge, Faridabad, Haryana are hereby quashed

and set aside and the appellants are acquitted for the

offences alleged against them.

Criminal Appeal No.421 of 2011 Page 4 of 5

11. As both of them have been enlarged on bail, their

bail bonds stand cancelled.

..........................J. (ABHAY S.OKA)

..........................J. (PANKAJ MITHAL) NEW DELHI;

October 05, 2023.

Criminal Appeal No.421 of 2011 Page 5 of 5