HARCHAND SINGH & ANR. versus STATE OF HARYANA

HARCHAND SINGH & ANR. ,,

STATE OF HARYANA

August 31, 1973

[ff. R. KHANNA AND A. ALAGIRISWAMI, JJ.]

Indian Penal Code-Accused convicted under s. 304 II read wit/1 s. 34 hy the trial court-On crns.t llpoeal. Hif!h __ Court suhstitu:ed conviction u fs. 304 fo convic1io11 uls 302 R.W.S. 34,-Whether-- oonviction possible, when prosecut/011 products .ret of evidence which contradict and strikes at the other.

Six persons were tried in the Court of Addi. Sessions Judge in connectioO with the death of the victim. The trial Court acquitted 3 but convicted 2 under Sec. 304 Part II read with '· 34 l.P.C. and the other one w., convicted under s. 323 I. P .C. and they were sen'.enoed accordingly.

Two cros.~ appeals were, thereafter, fi.led~ne by the convicts challenging cheir conviction and the other by the Sta p· aving that the convictions of 1he 3 accused be under s. 302 read with s. 34, I. P. C. The High Court acquit'ed one of them but C"lnvicted the other two under s. 302 read wi~h S. 34 I. P. C. and sentenced them to undergo imprisonment for lire and hence the appeal before thi• Court.

The prosecution, in support of its case, examined two sets of eye witnt>ssts. The evidence of one set consisted of the testimony of three eye witnes!!es. The trial court, dfd not place any reliance upon their testimony rior upon the dying declaration. The other eye witness upon whose testimony the prosecution and the trial court placed reliance was PW. 14, who professed to be \Vorking With the deceased at the time of occurrence.

Allowing the appea1,

HELD : The function of the Court in Criminal Trial ls to find whether the person arraigned before it is guil·y of th ... Offence wi+h which h~ is charged. For this purpose. th .. Court scans the material on recorcfl to find whether there ia anv reliable and trusfworthv evidf"nce UT\On tbf' bac::i.;: of which it is po~sible to convict the accused and to bold tha· he is guiltv of th .. offence with which he is chaTged. If in case, the proserution leads tw11 s~ts of evidence. ri.ch one of ·which contradict and strikes at th .. other and shows it to be nnreliab1e. the conviction cannot be sustained. [587E1

Jladivalu Tllel'a1 v. The State of Madras, f1957] S.C.R. 981, referred to and di~tin~ished.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 32 of 1970.

From the Judgment and order dated the 23rd April, 1969 of the Puniab and Haryana High Court in Criminal Appeal Nos. 320 and 672 ot 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 bv

KHANNA, J. Harchand Singh, Jaswant SiMh, Jaswinder Singh, Sadhu Singh, Gaiian Singh and Labh Singh were tried in the court of Additional Sessions Judge, Ludhiana in connection with an occurrence

which resulted in the death of. Ajaib. Singh: The trail court acquitted Sadhu Singh, Gajjan Singh and Libh Siiigb. Harcband and J as.want Singh were ronvicted by the trail ·court under section 304 part 11 -read with section' 34 Indian Penal Olde and each of them was sen-tenced to undergo rigorous imprisonment for period of seven years. Jaswinder Singh was convicted under sWion 323 Indian Penal Code aDd sentenced to· undergo rigorous imprisonment for period · oJ ooe year. Two cross appeals were thereafter filed in the Punjab & Haryana High Court. One of the appe3.Is was by Harchand Singh, Jaswant Singh and Jaswinder Singh. challenging their conviction •. The other appeal was by ·the State al 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 J aswinder Singh. -The appeal by the State against Harchand Singh and J aswant Singh was accepted and those two =used were convicted under section 302 read with sec-tion 34 Indian Penal Code and each of them was sentenced to under· go imprisonment for life. Ruchand Singh and J as want Singh there· after came up in appeal to this Court by special leave.

· · The prosecution case is that Guiab Kaur widow of J wala Singh made__a .will of· land measuring about fifty bighas in favour of Ajaib Singh deceased and his brother Tej Singh. Guiab Singh died about two years before the present occurrence. After her death, the land of Guiab Kaur _was under the ·cultivating possession of jaib Singh and Teja Singh. The accused_ are collaterals of Jwala Singh, husband of Guiab Kaur and felt aggrieved because of the execution of the will by Guiab Kaur in favour of Ajaib Singh and Teja Singh. On June 12, 1966 at about IO or 11 a.m., it is . stated, Ajaib Singh went to work his well known as "nawa Khu" in the area of village J aipura. 111c six· accused, who were present at their well close to the well of Ajaih Singh, then came . there. Sadhu Singh and Harchand Singh at that time were armed with barchhas. J aswinder Sirigh, Gajjan Singh and Labh Singh had gandasas, J_aswant Singh had takwa. On arrival there, the accused stated that they would not allow jaib Singh to t!'1te water: fro~ the 'Y~ll. pie acc~sed also stared inflicting inju-ries upon A1ail> Smgh 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 Sngh. Mal Singh and Teja Singh were stated to be present in nearby field · at that time. They rushed to the spot where Ajail> Singh was being assaulted. The accused then ran . away. Ajail> Singh was put on. · cart was taken first to Duraha and thereafter to Paya!. As the doctOr was not available either in the Duraha Hospital or Paya! hospital Ajail> Singh was taken in taxi to Khanna. 'The party arrived ai Khanna hospital at about 6.30 p.m. Dr. Shamsher Singh incharg~ cl the hospital then sent an intimation to poliee station Khanna stat· in that Aiaib Singh's condition was serious and his statement might be recorded. ASI Harbhajan Singh then went to the hospital and recorded statement PK of Aiail> Singh at. 7.30 ·p.m.. In the said statement, Aiail> Singh gave the version of the occurien~ as given _above. A.jail> Singh died in the hospital_ soon thereafter at 8.45 p-.m.

Intimation about the recording of the ~ying declaration of Ajaib Singh was sent to police station Payal. case was thereupon r< gis-tered at that police station and 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 blood-stained bruchha. Jaswant Singh got recovered blood-stained takwa, while J as winder Singh got recovered blood-stained gandasa.

Post mortem examination on the bocly of Ajaib Singh deceased was performed by Dr. Gurcharan Singh Randhrawa on June 13, 1966 at 1 p.m.

At the trial the accused the i>rosecution allegations and stated that they had been falsely involved in the case. The trial oourt 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 proseell · lion. case as given above. The trial court did not also place any re-liance upon the dying declaration of Ajaib Singh. Reliance was, however, placed by the trial court upon the evidence of Ram Asra (PW 14) who profess<;<! to be working with the deceased at the time Qf occurrence. Ram Asra's statement, it would appear from the re· cord, was recorded by the police on June 13, 1966 during the investi-E gation 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 drat (sickle) and by J as want Singh with kirpan. Relying upon the evidence of Ram Asra, the trial court convicted Harchand Singh and Jaswant Singh for offence under section 304 part II read with section 34 Indian Penal Code. Jaswinder Singh, who was sttated to be empty-handed, 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 Glurt after taldng into consideration the evi· dence of those three withnesses 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 J aswinder 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 ff Singh fell under section 302 read with section 34 and not under sec-tion 304 part lI read with section 34 Indian Penal Code. Harchand Singh and Jaswant Singh were accordingly convicted and sentenced as above.

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 con-viction of the appeliants cannot be sustained. ·

It cannot be disputed that murderous assault was made on Ajaib Singh on the day of occurrence as result of which he died. The evi-dence of Dr. Shamsher Singh, who examined Ajaib Singh when he was taken to Khanna hospital as well as the evidence of Dr. Gur-charan Singh Randhawa who performed post mortem examination oe the dead body, shows that as many as eighteen injuries were inflicted upon Ajaib Singh deceased. Out of them, seven had been caused by shaq:H:dged weapons. Death, in the opinion of Dr. Randhawa, was .due to shock and haemorrhage as result of the cumulative effect of the injuries. According to the case of the prosecution, the two appel-lants joined in the assault on the deceased as 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 wit-nessed the occurrence. The trial court in support of this conclusion gave reasons which appear to be cogent and weighty and find uo parti~ular gro1Jn4 to take different view. The evidence of Ram Asra, who aceording 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 their house. They were at 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. Arnarjit Silljth, Mal Singh and Teja Singh claimed that they were pro-ceeding 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 Aiaib 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 discreoancy in the version of Aiaib Singh deceased in his dving de-claration and the testimony of Amariit Singh, Mal Singh and Teja Sindl PWs regarding the presence of these witnesses at or about the place of occurrence. On the t.oo of all this we find that the evid~nce of Ram Asra, upon which reliance has been placed bv the prosecution shows that Arnariit Singh, Mal Singh and Teja Singh were not there and had not witnessed the occurrence.

The other eye witness, upon whose testimony reliance has been placed by the prosecution is Ram Asra (PW 14). So far as this wit-ness is concerned, we find that his presence at the scene of occurrence was not mentioned by Ajaib Singh decleased in the dying declara tion 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 that Ram Asra had not witnessed the occurrence. The name of Ram 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. The present is case wherein one set of prosecution evidence condemns the other set of evidence produced by the prose-cution. In the above state of affairs, we find it difficult to secure firm ground upon which to base the conviction of -the accused appellants.

The function of the court in criminal trial is to find whether the persor: 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 evidenc< upon the basis of which it is ]X)Ssible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in case the prosecution leads two sets of evidence, each one of which contradict and strikes at the other and shows it to be un-reliable, the result would necessarily be that the court would be left with no reliable and trustworthy eviden~e upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such situation.

Mr. Marwah has cited before us the case of Vadivalu Thevar v. The State of Madras(') wherein it was laid down that the court can base the conviction of the accused on charge of murder upon the testimony of single ,witness if the same was found to be convincing and reliable. There can, in our opinion, be no dispute with the above II proposition, but that proposition can be of no avail in the present case. As already mentioned earlier, the prosecution evidence itself

(I) [1957] S.C.R. 981.

creates doubt about the veracity of the testimony of Ram Asra, upou which testimony reliance is now sought to be placed by Mr. Marwah. Had the testimony of Ram Asra been of convincing character and the prosecution evidence had not itself created doubt regarding the correctness of his testimony, this Court might have sustained the con-viction 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 judgmef!l of the High Court and acquit the appellants.

Appeal allo••'ed.