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PETITIONER: SWARAN SINGH

       Vs.

RESPONDENT: STATE OF J&K

DATE OF JUDGMENT:       28/07/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T Nanavati. J.      This appeal  arises out  of  the  judgement  and  order passed by  the High  Court of  Jammu and Kashmir in Criminal Appeal  No.   15  of   1985  and   Criminal  Reference   for Confirmation Case No. 15 of 1985.      The  appellant  -  Swaran  Singh  was  tried  alongwith Mohinder Singh for causing death of Kesar Singh and injuries to Man  Singh. The trial court convicted Mohinder Sing under Section 302  and 307  RPC. Swaran  Singh was convicted under Section 302 and 307 both read with Section 109 RPC.      The High Court confirmed the conviction and sentence of both the  accused. Both  of them  then filed  Special  leave petition in  the court.  Special leave  petition of Mohinder Singh was  rejected and  only Swaran Singh was granted leave to file an appeal.      The only  reason why Swaran Singh has been convicted is that he  had exhorted  Mohinder Singh  to fire  his gun  and finish Kesar Singh and Man Singh and it was pursuant to this exhortation that  Mohinder Singh  had fired shots and killed Kesar Singh  and injured  Man Singh.  What is  urged by  the learned counsel  for the appellant is that no eye-witness in his statement before the Police had stated that Swaran Singh had exhorted  Mohinder Singh  to kill  either Kesar Singh or Man Singh.  The trial  court did not attach any importance t this omission on the ground that it was on a minor point and inspite of  it thought  it fit  to rely upon the evidence of the eye-witness  that Swaran  Singh  had  exhorted  Mohinder Singh to act like that. The High Court also considered it as a  minor  omission  and    agreeing  with  the  trial  court confirmed the finding recorded against him.      It is  difficult to appreciate how this omission can be regarded  as   a  minor  omission.  Swaran  Singh  has  been convicted only  on the  basis of the said exhortation. There is no  order evidence  to show that he had taken any part in the killing of Kesar Singh and in injuring Man Singh. It was material improvement made by the eye-witness on an important point and this aspect deserved to be given the due weight by both the  court below.  If really  Swaran Singh had exhorted Mohinder Singh  like that  and then  the witness  would have

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failed to  say so  in their statements before the police. It is a  consistent improvement made by the eye-witnesses while giving their  evidence. It was obviously made with a view to make Swaran  Singh also  responsible for the murder of Kesar Singh and  injuries caused  to Man  Singh. In  view of  this serious infirmity,  their evidence  regarding involvement of Swaran Singh ought not to have been accepted.      We, therefore,  allow this  appeal and  set  aside  the conviction and  sentence of Swaran Singh. His bail bonds are ordered to be cancelled.