IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 62 OF 2009
(Arising out of S.L.P. (Crl.) No. 2872 of 2008)
Jarnail Singh .... Appellant
Versus
State of Punjab .... Respondent
JUDGMENT
Dr. MUKUNDAKAM SHARMA, J.
1. Leave Granted.
2. The present appeal is filed by the appellant being aggrieved by the
judgment and order of the learned Single Judge of the Punjab &
Haryana High Court affirming the judgment and order of the learned
Additional Sessions Judge, Patiala finding the appellant- accused guilty
of the offence alleged against him. The learned Additional Sessions
Judge, found the appellant-accused guilty and convicted him under
Section 304 Part II of the Indian Penal Code, 1860 (for short `IPC’) and
sentenced him to undergo rigorous imprisonment for eight years.
However, in the appeal filed by the appellant as against the order of
conviction and sentence the learned Single Judge while maintaining the
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finding of guilt of the appellant converted the conviction of the appellant
from Section 304 Part II IPC to offence under Section 304 Part I IPC
and sentenced him to undergo rigorous imprisonment for five years.
3. In order to appreciate the contention raised by the appellant-accused
that the courts below have failed to properly analyse and scrutinise the
evidence of the solitary witness and that the presence of the said
solitary witness at the place of occurrence was not natural and also that
his testimony was not free from embellishment, we are required to
mention brief facts as alleged by the prosecution.
4. Ramtar (hereinafter referred to as `deceased’) was the younger brother
of the Harjinder Kumar, the complainant, both sons of Jiwa Nath. The
deceased was employed as a driver of a Maruti Van bearing
Registration No. PB-01-0353 belonging to Gurdev Singh, resident of
village Sular.
On 15.11.1993, Harjinder Kumar was proceeding from village Phagan
Majra to meet Mohinder Singh son of Kartar Singh and at about 6.30 p.m.,
he reached the bus stop of village Phagan Majra, where he met Manjit
Singh, Sarpanch and Chanan Singh, Member Panchayat of village Kasiana.
They all then started to village Phagan Majra. When they reached the point
from where a kacha path takes off to village Kasiana, they found the
abovementioned Maruti Van with its headlight on, lying parked with its
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windows open at a distance of about 1 = Killa from the metalled road. On
suspicion, they went towards the van and on reaching there, they found
deceased seated on the right rear seat and accused Jarnail Singh seated on
the left rear seat of the van.
Accused was putting pressure on deceased to take the van by kacha
path way to village Kasiana but the decease was disinclined. An exchange
of hot words ensued. Accused dealt two stab blows with knife, one on the
chest and other on right flank of deceased. The deceased became
unconscious and rolled down on the ground through the right window of the
van. On sensing that deceased has succumbed to the injuries, accused
plunged the knife into his chest, in order to commit suicide. The knife fell
down from his grip in the van.
After having arranged a tractor the deceased and accused were
brought to Rajindra Hospital, Patiala. On reaching the hospital, Harjinder
Kumar and others were told by doctor that deceased had already expired.
Harjinder Kumar and Manjit Singh left for the Police Station, Sadar Patiala.
When they reached near the general bus stand, Patiala they came across
ASI Karnail Singh alongwith other police officials at about 10.30 p.m.
Harjinder Kumar made statement Ex. PD before the ASI who made his
endorsement Ex.PD/1 and sent the same to the Police Station where on its
basis formal FIR Ex. PD/2 was recorded. ASI Karnail Singh alongwith
Harjinder Kumar, Manjit Singh and other police officials went to Rajindra
Hospital, Patiala. At that time the dead house was lying locked. Early in the
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morning at about 6.30 a.m. Raj Kumar the attendant came to the dead
house and opened the same. The dead body of deceased was identified by
Harjinder Kumar and Manjit Singh. The ASI prepared the Inquest Report
Ex. PA/1 and handed over the dead body alongwith request Ex. PA/2 to
Constable Gurdeep Singh for postmortem examination.
ASI in the company of Harjinder Singh, Manjit Singh and other police
officials went to the scene of crime, and prepared site plan Ex. PW 11/A
showing the place of occurrence. He seized the knife Ex. P1, which was
allegedly stained with blood. The same was converted into a parcel after
preparing its rough sketch Ex. PW 11/B. The knife was taken into
possession vide memo Ex. PW 10/A. Some portion of the rear seat of the
van which was blood stained alongwith its foam was also removed and
turned into a parcel with seal `GS’ and taken into possession vide memo Ex
PW.10/E. The van alongwith its Registration Certificate Ex. PW 10/D was
also seized vide memo Ex. PW 10/C. Thereafter ASI came to Rajindra
Hospital, Patiala and took into possession the parcel containing clothes of
the deceased. He deputed some constables including Amar Singh to guard
the accused in the hospital. He went back to the police station on
16.11.1993 and deposited the case property with seals intact with MHC
Bhupinder Singh. He arrested the accused on 9.12.1993. After completion
of investigation, the charge-sheet was filed in the court of learned Chief
Judicial Magistrate, Patiala, who vide his order dated 15.03.1994 committed
the case to the court of learned Sessions Judge, Patiala for trial.
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5. The accused was charged u/s 302 IPC as well as u/s 309 IPC.
However, the charge u/s 309 IPC was deleted subsequently. In order to
substantiate its case, the prosecution examined 12 witnesses in all.
Harjinder Singh who was the eye witness and complainant was
examined as PW7. Manjit Singh, Sarpanch, the alleged eye witness
was also examined as PW6 but he did not support the prosecution
version, not even the presence of PW7 at the time of occurrence.
Consequently he was declared hostile. Chanan Singh another alleged
eye witness was given up on the ground that he has been won over by
the accused.
6. In the FIR it was stated by PW-7, the alleged eye witness, that the
deceased brother first gave a knife blow in the chest of the accused and
thereafter the accused gave two stab blows with his knife on the person
of deceased. The same set of allegation was made by said PW-7 even
before the police during the course of investigation. However, during
the trial he stated that there was an exchange of hot words between the
accused and the deceased consequent to which the accused gave two
stab blows with the knife to the deceased, one of which fell on the chest
whereas the other on the right flank of the deceased. It was also stated
in the evidence by the said PW-7 that on seeing that the deceased had
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died the accused attempted to commit suicide by plunging the knife on
the left side of his chest.
7. On the other hand, the accused put forth that he was learning driving
from the deceased, who was his friend. He stated that on the day of the
occurrence three unidentified person hired the van of the deceased and
on reaching the spot, deceased refused to take his van on kacha path
and those person picked up a row with him and they assaulted both the
deceased and the accused with the Gatra Kirpan due to which both of
them suffered injuries. He further stated that he became unconscious
on receipt of injury in his stomach and subsequently he was involved in
this case.
8. The learned Additional Sessions Judge, on appreciation of the evidence
on record held that though the injury on the accused could have been
self inflicted as stated by the doctor, but even considering that the same
was inflicted in self-defence, the right of self-defence to the extent of
causing the death of the deceased was not available to the accused.
On noticing and appreciating the fact that there was allegation of an
exchange of hot words and that the incident occurred at the spur of the
moment without any premeditation, the learned Additional Sessions
Judge found the accused guilty and convicted him under Section 304
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Part II IPC and sentenced him to undergo rigorous imprisonment for
eight years.
9. On an appeal being filed by the appellant as against the aforesaid order
of conviction and sentence the learned Single Judge heard the parties
on merits. While maintaining the finding of guilt against the appellant the
learned Single Judge, however, convicted the appellant under Section
304 Part I IPC by altering the same from one under Section 304 Part II
IPC. However, taking into consideration the fact that the accused has
become permanently physically handicapped and his disability is 80%
the learned Single Judge reduced the sentence to five years instead of
eight years.
10.The accused filed the present appeal as against the aforesaid orders.
We have heard the learned counsel appearing for the appellant-
accused as also learned counsel appearing for the State and also
scrutinised the evidence on record.
11.The learned counsel appearing for the appellant submitted before us
that the presence of PW-7, the only eye witness supporting the alleged
story of the prosecution, at the spot is too providential to be true. It was
also submitted that although it is alleged that the First Information
Report was recorded at 10.30 or 11.00 p.m., but in the inquest report
which was drawn at 7.00 a.m. on the next day, in the place of the F.I.R
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number no particulars were given and only a dash was shown and the
F.I.R number was inserted at the later point of time. Relying on the said
fact it was submitted that the first information report was submitted late
and belatedly on the next date i.e. on 16.11.1993 at about 9.00 a.m. He
further submitted that the statement of PW-7 is full of embellishment
and contradictions from his previous statement. He drew our attention
to the allegation made in the first information report and to the
statement of said PW-7. He submitted that said PW-7 is neither
trustworthy nor reliable, and therefore, the appellant should have been
acquitted instead of being convicted in the aforesaid manner.
12.The learned counsel appearing for the respondent, on the other hand,
submitted that both the courts below namely the High Court and the
learned Additional Sessions Judge found the appellant guilty of the
offence and the said findings and conclusion reached should not be
interfered with.
13.The learned Additional Sessions Judge found the appellant guilty of the
offence and convicted the appellant-accused under Section 304 Part II
IPC. The prosecution did not file any appeal as against the aforesaid
order of conviction and sentence whereas the appellant-accused filed
an appeal against his order of conviction.
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14.It is established fact that the offence of Section 304 Part I IPC is of a
higher degree than that of the offence under Section 304 Part II IPC, as
also held in Ruli Ram v. State of Haryana [(2002) 7 SCC 691, Para 8].
The learned Single Judge, therefore, was not justified in converting the
order of conviction and altering the same from Section 304 Part II IPC to
Section 304 Part I IPC, particularly when the prosecution did not file any
appeal. By virtue of the order passed by the learned Single Judge the
appellant stood convicted of a higher degree of offence than that of
Section 304 Part II IPC, although the learned Single Judge altered the
sentence from eight years to five years. In the case of Abdul Aziz v.
State of Rajasthan [(2007) 10 SCC 283] it was held by this Court that if
a person is charged under a grave Section, but however, if acquitted
under the said grave section by the Trial Court, then it would amount to
travesty of Justice if in his own appeal he is convicted under that grave
section, without there being any appeal from the State and without there
being prior notice of enhancement issued by the appellate Court.
15.Be that as it may, it is necessary now to consider whether the
prosecution case as alleged could be said to be trustworthy and reliable,
for which we are required to refer and analyse the evidence as adduced
by the parties.
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16.According to the prosecution the incident took place on 15.11.1993 at
about 6.30 p.m. which was an incident happening on an evening of the
winter season. The deceased who was the brother of PW-7 was
allegedly driving the van which was parked at the place of incident with
windows open and headlights on, which meant that it was dark at that
point of time. Although it was a winter night still the windows of the car
were kept open, for which according to the prosecution, PW-7 could see
the entire incident. In the first information report PW-7 stated that
initially a knife blow was given by the deceased to the accused and
thereafter the accused gave two knife blows to the deceased, which
resulted in his death and consequently his body came out of the
window. The aforesaid version as stated in the first information report,
was however, later on changed and altered when PW-7 deposed in the
court that the accused after giving two knife blows to the deceased
attempted to commit suicide by plunging the knife in his chest. In
support of the said contention reliance was placed on the evidence of
the doctor who has stated during his examination that the aforesaid
injury on the accused could have been self inflicted also. PW-7 is said
to be the eye witness who has allegedly seen the entire occurrence
including the exchange of hot words between the appellant and the
deceased in a winter night and that also when it was totally dark.
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According to him, he could see the entire incident in the light of the
headlight of the car.
17.The aforesaid statement of PW-7 does not appear to be trustworthy and
reliable for the simple reason that even though the headlight of the car
was on, it would be lighting only the front portion and not the side of the
car and may not even have lighted sufficiently to enable PW 7 to see as
to what had happened inside the car. Although it was a winter night it is
not stated nor understood as to why the windows of the car were kept
open. It is also not stated by PW-7 that he had made any effort to help
or render assistance to stop the verbal dual between the accused and
the deceased or took any effective steps to stop the stabbing on both
the persons. PW-7 had further stated that his brother was a driver of
the van and that the incident had happened because he was unwilling to
take the vehicle by the village path. However, in his deposition he has
stated that his brother was seated at the back seat alongwith the
deceased. It is not understood as to why the driver of the vehicle
driving the car would seat in the back seat of the car instead of driving
the car from the front seat. Presence of PW-7 at the spot at that point
of time was also providential and he has been examined only as a
chance witness. The other alleged eye witness namely Chanan Singh,
Member Panchayat of village Kasiana was not examined at all on the
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ground that he was won over by the accused. Manjit Singh, Sarpanch
who is stated to be the last and third eye witness turned hostile.
Therefore, out of the three eye witnesses’ one has become hostile
whereas the other was not examined at all by the prosecution and we
have only one eye witness PW-7, who happens to be the brother of the
deceased. If his evidence is discarded there is no other evidence on
the basis of which the accused could be convicted.
It is no doubt true that conviction could be based on the sole testimony of a
solitary eye witness but in order to be the basis of conviction his presence
at the place of occurrence has to be natural and his testimony should be
strong and reliable and free from any blemish. In Chuhar Singh v. State
of Haryana, [(1976) 1 SCC 879] this Court held that what is important is
not how many witnesses have been examined by the prosecution but what
is the nature and quality of evidence on which it relies. The evidence of a
single witness may sustain a sentence of death whereas a host of
vulnerable witnesses may fail to support a simple charge of hurt. Since the
case must stand or fall by the evidence of single witness, it is necessary to
examine that evidence critically.
18.However, when we scrutinize the evidence of PW-7, in the present
case, we do not find him to be trustworthy and reliable witness for he is
changing his version frequently. He had given one version in the F.I.R
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which is reiterated during the course of investigation before the police
whereas he had given a totally different version at the time of his
statement before the court. He had stated in the F.I.R that following the
altercation between the deceased and the accused the deceased first
gave a knife blow. When inquest proceedings took place on the next
day at 7.00 a.m. he stuck to the same version and during investigation
also he confirmed the aforesaid allegation made by him whereas in the
trial he stated that the accused first gave two knife blows to the
deceased and then he tried to commit suicide by giving a knife blow to
himself. He had also stated that on receiving those two blows the
deceased came through the window and fell down on the ground. The
said version also cannot be believed for the deceased after receiving
the injuries could not have gone out of the window unless the door was
open. The car was allegedly parked with the headlights on and if that
was so, the key of the car was available in the starting/ignition switch
and, therefore, there was no reason why the said car could not have
been driven with the dead body of the deceased and the injured to the
hospital as also to the police station by the said PW-7 and the other
witnesses allegedly with him at that point of time for it has come in
evidence that the other witness knew driving as he was driving the
tractor.
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19.The prosecution also examined Balbir Singh, PW-8, who stated that he
is the owner and driver of a taxi and on 15.11.1993 Jarnail Singh hired
the taxi of Ramtar in his presence and after that Ramtar never returned.
The deposition of the said witness is also found to be not worthy of
reliance for he did not produce any registration certificate. On his
statement that he was owning a taxi, he later said that he had sold the
taxi. He also stated in his evidence that he is unable to recollect as to
where from he had purchased the taxi or to whom he had sold his taxi.
He also stated in his deposition that he was holding a forged driving
license. These circumstances make him totally unreliable.
20.The entire story sought to be put forth by the prosecution and by PW-7
particularly appears to be doubtful and full of contradictions. It will be
unsafe to convict a person on the basis of such unreliable and
untrustworthy evidence particularly when such statements are full of
embellishment and contradictions, without corroboration in material
particulars by reliable testimony, direct or circumstantial. Consequently,
we set aside the order of conviction and sentence passed against the
appellant and give him benefit of doubt. He stands acquitted of the
charges. He shall be set free immediately, unless required in any other
matter.
21.The appeal is accordingly allowed.
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……………………………J.
(Altamas Kabir)
……………………………J.
(Dr. Mukundakam Sharma)
New Delhi;
January 15, 2009