PETITIONER: HARCHAND SINGH & ANR. Vs. RESPONDENT: STATE OF HARYANA DATE OF JUDGMENT31/08/1973 BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A. CITATION: 1974 AIR 344 1974 SCR (1) 583 1974 SCC (2) 397 ACT: Penal Code-Accused convicted under s. 304 11 read with s. 34 by the trial court-on cross appeal. High Court substituted conviction u/s. 304 to conviction u/s 302 R.W.S. 34-Whether conviction possible, when prosecution produces a set of evidence which contradict and strikes at the other. HEADNOTE: Six persons were tried in the Court of Addl. Sessions Judge in connection with the death of the victim. The trial Court acquitted 3 but convicted 2 under Sec. 304 Part II read with s. 34 I.P.C. and the other one was convicted under 323 I.P.C. and they were sentenced accordingly. Two cross appeals were, thereafter, filed-one by the convicts challenging their conviction and the other by the State praying that the convictions of the 3 accused be under s. 302 read with s. 34, I.P.C. The High Court acquitted one of them but convicted the other two under s. 302 read with S. 34 I.P.C. and sentenced them to undergo imprisonment for life and hence the appeal before this Court. The prosecution, in support of its case, examined two sets of eye witnesses. The evidence of one set consisted of the testimony of three eye witnesses. The trial court, did not place any reliance upon their testimony nor upon the dying declaration. The other eye witness upon whose testimony the prosecution and the trial court placed reliance was P.W. 14, who professed to be working with the deceased at the time of occurrence. Allowing the appeal, HELD : The function of the Court in a Criminal Trial is to find whether the person arraigned before it is guilty of the offence with which he is charged. For this purpose, the Court scans the material on record to find whether there is any reliable and trust 'worthy evidence upon the basis of which it is possible to convict the accused and to hold that he is guilty of the offence with which he is charged. If in a case, the prosecution leads two sets of evidence, each one of which contradict and strikes at the other and shows it to be unreliable. the conviction cannot be sustained. [587E] Vadivalu Thevar v. The State of Madras, [1957] S.C.R. 981, referred to and distinguished. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 32 of
1970.
From the Judgment and order dated the 23rd April, 1969 of
the Punjab and Haryana High Court in Criminal Appeal Nos.
320 and 672 of- 1967.
Nuruddin Ahmed and D. Goburdhan, for the appellants.
H. S. Marwah and R. N. Sachthey. for the respondent
The Judgment of the Court was delivered by
KHANNA, J. Harchand Singh, Jaswant Singh, Jaswinder Singh,
Sadhu Singh, Gaijan Singh and Labh Singh were tried in the
court of Additional Sessions Judge, Ludhiana in connection
with an occurrence
584
which resulted in the death of Ajaib Singh. The trail court
acquitted Sadhu Singh, Gajjan Singh and Labh Singh.
Harchand and Jaswant Singh were convicted by the trail court
under section 304 part It read with section 34 Indian Penal
Code and each of them was sentenced to undergo rigorous
imprisonment for a period of seven years. Jaswinder Singh
was convicted under section 323 Indian Penal Code and
sentenced to undergo rigorous imprisonment for a period of
one year. Two cross appeals were thereafter filed in the
Punjab it Haryana High Court. One of the appeals was by
Harchand Singh, Jaswant Singh and Jaswinder Sing,
challenging their conviction. The other appeal was by the
State of Punjab wherein it was prayed that the conviction of
Harchand Singh,jaswant singh and Jaswinder Singh should be
under section 302 read with section 34 Indian Penal Code.
The High Court acquitted Jaswinder Singh. The appeal by the
State against Harchand Singh and Jaswant Singh was accepted
and those two accused were convicted under section 302 read
with section 34 Indian Penal Code and each of them was
sentenced to undergo imprisonment for life. HArchand Singh
and Jaswant Singh thereafter came up in appeal to this Court
by special leave.
The prosecution case is that Gulab Kaur widow of Jwala Singh
made a will of land measuring about fifty bighas in favour
of Ajaib Singh deceased and his brother Tej Singh. Gulab
Singh died about two years before the present occurrence.
After her death, the land of Gulab Kaur was under the
cultivating possession of Ajaib Singh and Teja Singh. The
accused are collaterals of Jwala Singh, husband of Gulab
Kaur and felt aggrieved because of the execution of the will
by Gulab Kaur in favour of Ajaib Singh and Teja Singh. On
June 12, 1966 at about 10 or 11 a.m., it is stated, Ajaib
Singh went to work his well known as “nawa Khu” in the area
of village Jaipura. The six accused, who were present at
their well close to the well of Ajaib Singh, then came
there. Sadhu Singh and Harchand Singh at that time were
armed with barchhas. Jaswinder Singh, Gajjan Singh and Labh
Singh had gandasas, Jaswant Singh had takwa. On arrival
there, the accused stated that they would not allow Ajaib
Singh to take water from the well. The accused also stared
inflicting injuries upon Ajaib Singh with their respective
weapons. The occurrence, it is stated, was witnessed by
Ajaib Singh’s two sons Amarjit Singh and Mal Singh as well
as by his brother Teja Singh. Amarjit Singh, Mal Singh and
Teja Singh were stated to be present in a nearby field at
that time. They rushed to the spot where Ajaib Singh was
being assaulted. The accused then ran away. Ajaib Singh
was put on a cart was taken first to Duraha and thereafter
to Payal. As the doctor was not available either in the
Duraha Hospital or Payal hospital, Ajaib Singh was taken in
a taxi to Khanna. The party arrived at Khanna hospital at
about 6.30 p.m. Dr. Shamsher Singh incharge of the hospital
then sent an intimation to police station Khanna statin that
Ajaib Singh’s condition was serious and his statement might
be recorded. ASI Harbhajan Singh then went to the hospital
and recorded statement PIK of Ajaib Singh at 7.30 p.m. In
the said statement, Ajaib Singh gave the version of the
occurrence as given above. Ajaib Singh died in the hospital
soon thereafter at 8.45 p.m.
585
Intimation about the recording of the dying declaration of
Ajaib Singh was sent to police station Payal. A case was
thereupon registered at that police station and a formal
first information report was prepared on the basis of the
dying declaration of Ajaib Singh.
Sub Inspector Hoshiar Singh took over the investigation of
this case. He arrested the accused on June 16, 1966 when
they were found to be hiding at Duraha power-house. The
different accused were thereafter interrogated. Harchand
Singh then got recovered a blood-stained barchha. Jaswant
Singh got recovered a blood-stained takwa, while Jaswinder
Singh got recovered a blood-stained gandasa.
Post mortem examination on the body of Ajaib Singh deceased
was performed by Dr. Gurcharan Singh Randhrawa on June 13,
1966 at I p.m.
At the trial the accused the prosecution allegations and
stated that they had been falsely involved in the case.The
trial court did not place any reliance upon the testimony of
Amarjit Singh (PW2), Mal Singh (PW 3), and Teja Singh (PW4)
who were examined as eye witnesses of the occurrence and who
had supported the prosecution case, as given above. The
trial court did not also place any reliance upon the dying
declaration of Ajaib Singh. Reliance was, however, placed
by the trial court upon the evidence of Ram Asra (PW 14) who
professed to be working with the deceased at the time of
occurrence. Ram Asra’s statement, it would appear from the
record, was recorded by the police on June 13, 1966 during
the investigation of the case. According to Ram Asra, only
three of the accused, namely, Harchand Singh, Jaswant Singh
and Jaswinder Singh were present at the time of the
occurrence, while the other three accused were not present.
It was further stated by Ram Asra that injuries to Ajaib
Singh deceased had been caused by Harchand Singh with a drat
(sickle) and by Jaswant Singh with a kirpan. Relying upon
the evidence of Ram Asra, the trial court convicted Harchand
Singh and Jaswant Singh for offence under section 304 part
11 read with section 34 Indian Penal Code. Jaswinder Singh,
who was stated to be emptyhanded, was convicted under
section 323 Indian Penal Code.
When the matter was taken up in appeal to the High Court,
the learned Judges took the view that the trial court was
not justified in throwing over-board the testimony of
Amarjit Singh, Mal Singh and Teja Singh. The High Court
after taking into consideration the evidence of those three
witnesses as well the evidence of Ram Asra PW came to the
conclusion that the complicity of Harchand Singh and Jaswant
Singh was established beyond any reasonable doubt. So far
as Jaswinder Singh was concerned, the High Court held that
no case has been proved against them. The High Court was
further of the opinion that the case against Harchand Singh
and Jaswant Singh fell under section 302 read with section
34 and not under section 304 part II read with section 34
Indian Penal Code. Harchand Singh and Jaswant Singh were
accordingly convicted and sentenced as above.
586
We have heard Mr. Nuruddin on behalf of the appellants and
Mr. Marwah on behalf of the State and are of the opinion
that the conviction of the appellants cannot be sustained.
It cannot be disputed that a murderous assault was made on
Ajaib Singh on the day of occurrence as a result of which he
died. The evidence of Dr. Shamsher Singh, who examined
Ajaib Singh when he was taken to Khanna hospital as well as
the evidence of Dr. Gurcharan Singh Randhawa who performed
post mortem examination on the dead body, shows that as many
as eighteen injuries were inflicted upon Ajaib Singh
deceased. Out of them, seven had been caused by sharp-edged
weapons. Death, in the opinion of Dr. Randhawa, was due to
shock and hemorrhage as a result of the cumulative effect of
the injuries. According to the case of the prosecution, the
two appellants joined in the assault on the deceased as a
result of which the latter died. The prosecution in support
of its case examined two sets of eye witnesses. The
evidence of one set consists of the testimony of Amarjit
Singh, Mal Singh and Teja Singh. So far as these witnesses
are concerned, the trial court came to the conclusion that
they were not present near the scene of occurrence and had
not witnessed the occurrence. The trial court in support of
this conclusion gave reasons which appear to be cogent and
weighty and find no particular ground to take a different
view. The evidence of Ram Asra, who according to the
prosecution case was with Ajaib Singh deceased at the time
of the occurrence, shows that Amarjit Singh, Mal Singh and
Teja Singh were not present at the time of occurrence. If
Amar jit Singh, Mal Singh and Teja Singh had been present at
or about the place of occurrence and had actually seen the
occurrence, it is difficult to believe that Ram Asra would
have remained unaware of their presence. According to
Amarjit Singh, Mal Singh and Teja Singh, they saw the
occurrence while they were coming from then house. They
were at a distance of about 60 karams from the place of
occurrence when they, heard alarm being raised and on coming
nearer they saw the six accused inflicting injuries upon
Ajaib Singh deceased, As against, that, the version of
Ajaib Singh deceased in the dying declaration was that the
above mentioned three witnesses were working in the field
nearby when he was assaulted by the accused. Amarjit Singh,
Mal Singh and Teja Singh claimed that they were proceeding
from their house to the well with Tokras and Kahis for the
purpose of consolidating the new channel with earth filling.
If that was the purpose for which they were going to the
well, they would have gone there before and in any case not
after Ajaib Singh deceased so that they might prepare the
channel before Ajaib Singh started operation of the persian
wheel at the well. We thus find that not only the
explanation given by Amarjit Singh, Mal Singh and Teja Singh
regarding their arrival at that time is not convincing,
there is material discrepancy in the version of Ajaib Singh
deceased in his dying declaration and the testimony of
Amarjit Singh, Mal Singh and Teja Singh PWs regarding the
presence of these witnesses at or about the place of
occurrence. On the top of all this we find that the
evidence of Ram Asra, upon which reliance has been placed by
the prosecution shows that Amarjit Singh, Mal Singh and Teja
Singh were not there and had not witnessed the occurrence.
587
The other eye witness, upon whose testimony reliance has
been placed by the prosecution is Ram Asra (PW 14). So far
as this witness is concerned, we find that his presence at
the scene of occurrence was not mentioned by Ajaib Singh
deceased in the dying declaration which was recorded by ASI
Harbhajan Singh at Khanna hospital. According to Ram Asra,
he was working with the deceased at the, well when the three
accused came there and assaulted the deceased. If Ram Asra
was, in fact, present and working with Ajaib Singh deceased
at the time of the occurrence, it is not clear as to why the
deceased should fail to mention that fact in the dying
declaration. The evidence of Amarjit Singh, Mal Singh and
Teja Singh upon which also the prosecution placed reliance
goes to show at Ram Asra had not witnessed the occurrence.
The name of Rain Asra in the very nature of things not
mentioned in the first information report, because the said
report was based upon the dying declaration of Ajaib Singh.
It would thus appear that the eye witness upon whose
testimony the prosecution wants to sustain the conviction of
the appellants is shown to be an unreliable witness by the
other evidence produced by the prosecution. Ile present is
a case wherein one set of prosecution evidence condemns the
other set of evidence produced by the prosecution. In the
above state of affairs, we find it difficult to secure a
firm ground upon which to base the conviction of the accused
appellants.
The function of the court in a criminal trial is to find
whether tile person arraigned before it as the accused is
guilty of the offence with which he is charged. For this
purpose the court scans the material on record to find
whether there is any reliable and trustworthy evidence upon
the basis of which it is possible to found the conviction of
the accused and to hold that he is guilty of the offence
with which Ile is charged. If in a case the prosecution
leads two sets of evidence, each one of which contradict and
strikes at the other and shows it to be unreliable, the
result would necessarily be that the court would be, left
with no reliable and trustworthy evidence upon which the
conviction of the accused might be based. Inevitably, the
accused would have the benefit of such a situation.
Mr. Marwah has cited before us the case of Vadivalu Thevar
V. The State of Madras(1) wherein it was laid down that the
court can base the conviction of the accused on a charge of
murder upon the testimony of a single witness if the same
was found to be convincing and reliable. There can, in our
opinion, be no dispute with the above proposition, but that
proposition can be of no avail in the, present case. As
already mentioned earlier, the prosecution evidence itself
(1) [1957] S.C.R. 981.
588
creates doubt about the veracity of the testimony of Ram
Asra,upon which testimony reliance is now sought to be
placed by Mr. Marwah. Had the testimony of Ram Asra been of
a convincing character and the prosecution evidence had not
itself created doubt regarding the correctness of his
testimony, this Court might have sustained the conviction of
appellants upon the testimony of Ram Asra. As the things
are, prosecution itself has led evidence to show that the
testimony of Ram Asra is not reliable.
We, therefore, accept the appeal, set aside the judgment of
the High Court and acquit the appellants.
S.C. Appeal allowed.
589