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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.

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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

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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.

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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

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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