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

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 ½ 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

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