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PETITIONER: PRATAP SINGH

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT07/12/1990

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) RAMASWAMY, K.

CITATION:  JT 1990 (4)   781        1990 SCALE  (2)1242

ACT: Indian Penal Code, 1860: Sections 302, 326/34. Code of Criminal Procedure, 1973: Section 173.     Criminal  Trial--Accused charged under Sections 302  and 326  vicariously with the aid of Section 34--On the date  of charge-sheet  no material with the prosecution to show  that the  accused actually participated in crime and  gave  knife injury--During trial accused confronted with evidence accus- ing  him  of substantive charges under  both  offences  i.e. inflicting  knife injuries to the deceased  and  prosecution witness--Trial  held prejudicial to the accused--Benefit  of doubt given to the accused.

HEADNOTE:     The  appellant and his co-accused were convicted by  the Additional  Sessions Judge under Sections 302,326 read  with section  34 of the Indian Penal Code and were  sentenced  to rigorous imprisonment for life and four years  respectively. On appeal the High Court acquitted the co-accused but upheld the conviction and sentence of the appellant.     In  appeal to this Court it was contended on  behalf  of the  appellant (i) that the appellant was convicted  for  an offence  for which he was not chargesheeted because  in  the charge-sheet  he  was charged vicariously with  the  aid  of section 34 for both the offences i.e. under sections 302 and 326,  but at the trial contrary to charge-sheet he was  con- fronted with evidence accusing him of the substantive charge under  section  302 for causing death of  the  deceased  and under section 326 for causing grievous hurt to the  prosecu- tion  witness; (ii) the co-accused having been acquitted  by the High Court, part of the testimony has been proved to  be false  and  as  such cannot be relied upon  to  support  the conviction of the accused. Allowing the appeal, this Court,     HELD: 1. The charge against the appellant was framed  on the basis of the material collected during the investigation by  the prosecution. On the date of the  charge-sheet  there was no material with the prosecution to show that it was the appellant who gave knife injury to 503 the  deceased  and the prosecution witness.  Even  otherwise when  the  police report under Section 173 of  the  Code  of Criminal  Procedure, which is the basis of the  chargesheet,

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implicated the appellant vicariously with the aid of Section 34,  I.P.C., it is difficult to rule out prejudice  when  at the trial, evidence was led to show that he actually partic- ipated  in the crime and inflicted injuries to the  deceased and  grievous hurt to prosecution witness. In any case  this cannot be certified as a fair-trial. The infirmities pointed out on behalf of the appellant when examined in the light of the charge framed against the appellant will show that it is difficult  to carry the conviction of the  appellant  beyond reasonable doubt. Accordingly the appellant-accused is given the  benefit  of  doubt and acquitted.  The  conviction  and sentence is set aside. [507C-F]     2. When the Trial Court and the High Court on  apprecia- tion  of  the evidence have believed the  eye-witnesses  and have based the conviction of the appellant on their testimo- ny.  It  is not for the Supreme Court  to  reappreciate  the evidence. [505E]

JUDGMENT: