REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s).1864 OF 2009

JAGDISH AND ANOTHER ...APPELLANT(S) VERSUS

THE STATE OF HARYANA     ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The two appellants have been convicted under Sections

302, 149 and 148 of the Indian Penal Code (hereinafter referred

to as ‘IPC’).   Originally there were 13 accused. Only six were

charge-sheeted. Two of them were tried by the juvenile court.

Seven  were  summoned  under  Section  319.   The  Trial  Court

convicted  three  persons.  One  of  them,  Ishwar  has  been

acquitted by the High Court.

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2. Sri  S.R.  Singh,  learned  senior  counsel,  on  behalf  of  the

appellants  submits  that  once  the  other  accused  have  been

acquitted, the two appellants alone cannot be convicted with the

aid of Section 149 of the Indian Penal Code.  The High Court

erred in convicting with the aid of Section 34 in absence of a

charge framed under that Section. There is no evidence of any

common  intention,  displaying  a  prior  meeting  of  minds  to

commit the assault.   PW-1 and PW-8 were not eye witnesses.

They  reached  after  the  occurrence.  Their  claim  to  be  eye

witnesses  is  highly  improbable  from  their  own  evidence.  An

alternative submission was made that in any event at best it was

a case for conviction under Section 304 Part-II I.P.C.  Reliance

was placed on Dalip Singh vs. State of Punjab, AIR 1953 SC

364::1954  SCR  145,  and  Sakharam Nangare  vs.  State  of

Maharashtra, 2012 (9) SCC 249.

3. Learned  counsel  for  the  State  submitted  that  PW-1  and

PW-8,  the  eye-witnesses  to  the  occurrence  had  stated  that

Appellant  no.2  made  the  fatal  assault  on  the  head  of  the

deceased with a lathi  while appellant  no.1 also assaulted the

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deceased.  The parties resided in the same locality and there is

evidence of a street light.  Relying on Khem Karan and others

vs.  State  of  U.P.  and  another, 1974  (4)  SCC  603,  it  was

submitted that because PW-1 was the sister of the deceased, the

credibility of her evidence as an eye-witness to the occurrence

cannot be doubted to grant acquittal in the nature of materials

available on the records.   

4. We  have  considered  the  submissions  on  behalf  of  the

parties and perused the materials on record.  The parties resided

in the same locality and were known to each other.  Animosity

existed between them because the son of the second appellant

had written  love letters  to  the daughter  of  PW-1.   Earlier  an

altercation had taken place between the parties on 20.05.1995

leading to a police case being lodged against both sides.  There

was another incident on 12.06.1995 for which the appellants and

the  deceased were  proceeded  with  under  Sections  107,  151,

Cr.P.C.   The  deceased  had  been  released  on  bail  and  was

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returning from the house of PW-1 on 16.06.1995 at about 9.00

P.M. when the assault is stated to have taken place.   

5.  PW-8 and PW-1 are husband and wife holding arms licence

in  their  individual  names.  They  are  stated  to  have  been

accompanied to the place of occurrence by Kamla the sister of

PW-8  and  one  Pali  Ram  who  was  also  an  arms  licensee.

Surprisingly,  the  latter  two  have  been  given  up  by  the

prosecution and have not been examined.  All four are stated to

have  moved  away  from the  place  of  assault  out  of  fear,  as

claimed.  If three of them were possessed of weapons there has

to be an explanation why they did not act in self defence when

the assault  is  alleged by lathis,  gandasi  and guns.   It  is  also

difficult to accept that her husband PW-8 and Palli continued to

hide in fear while PW-1 accompanied by her sister-in-law alone

shortly  returned  to  the  place  of  occurrence  to  check  on  the

deceased. An additional fact which is not only improbable but

highly unnatural according to normal societal rural customs and

mores is that PW-1 accompanied by her sister-in-law alone went

to the police station at 3.00 A.M, a kilometer away, to lodge the

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F.I.R.  while  her  husband and Pali  Ram who was  staying  with

them remained at home.

6. In the F.I.R. PW-1 made generalized allegations of assault

by all  the 13 accused who are stated to have surrounded the

deceased.  But  her  court  statement  was  more  specific  with

regard to the nature of assault made by each of the accused.  A

total of 11 injuries were found on the person of the deceased.

The  first  injury  was  bone  deep  in  the  right  parieto  occipital

region with damage to brain and pieces of bone in the wound.

There was injury on the neck, lacerated wound over the right

shoulder,  lacerated  wound over  the  dorsum of  both  ring  and

little  fingers  causing  fracture,  lacerated wound over  the  right

wrist joint over the middle of forearm, on the left side of the

chest wall, over the iliac crest, over the left scapular region with

a linear incision due to sharp weapon, over left deltoid region

and  lacerated  wound  over  the  right  knee  left  ankle  and  left

forearm.  The two appellants were armed with lathis by which an

incised wound could not have been caused.  In any event, the

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number of injuries on the deceased leaves us satisfied that it

was the result of a mob assault and not an assault by the two

appellants alone.

7. The  High  Court  has  committed  an  error  of  record  by

considering PW-8 to be an eye witness without any discussion

when  his  presence  at  the  time  of  occurrence  has  been

disbelieved by the Trial  Court.  With regard to PW-1,  the Trial

Court has itself observed that her deposition “does not contain

the entire truth and it makes the court to sit up and to find out

the  kernel  out  of  the  chaff”.  This  observation  assumes

significance in view of the acquittal of the remaining accused by

the Trial Court itself, excluding the juveniles.   

8. The question that  arises to  our  mind is  that  in  the mob

assault  by  13  persons  who  had  surrounded  the  deceased  at

night,  PW-1  was  the  sole  eye-witness.   Even  if  a  light  was

burning some of them undoubtedly must have had their back to

PW-1  making  identification  improbable  if  not  impossible.  The

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witness has been severely doubted both by the trail court and

the High Court to grant acquittal to the other accused.  Can the

evidence  of  a  solitary  doubtful  eye  witness  be  sufficient  for

conviction?  We may have a word of caution here.  Conviction on

basis of a solitary eye witness is undoubtedly sustainable if there

is reliable evidence cogent and convincing in nature along with

surrounding circumstances. The evidence of a solitary witness

will therefore call for heightened scrutiny. But in the nature of

materials available against the appellants on the sole testimony

of PW-1 which is common to all the accused in so far as assault

is concerned, we do not consider it safe to accept her statement

as a gospel truth in the facts and circumstances of the present

case.  If PW-1 could have gone to the police station alone with

her  sister-in-law  at  an  unearthly  hour,  there  had  to  be  an

explanation why it was delayed by six hours. Given the harsh

realities  of  our  times  we  find  it  virtually  impossible  that  two

women folk went to a police station at that hour of the night

unaccompanied  by  any  male.  These  become  crucial  in  the

background  of  the  pre-existing  enmity  between  the  parties

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leading to earlier police cases between them also. The possibility

of false implication therefore cannot be ruled out completely in

the facts of the case.  

9. The High Court concluded that the appellants alone were

the assailants of the deceased.  Ishwar is also stated to have

assaulted with a lathi capable of causing lacerated wounds. We

find it difficult to hold that the appellants were any differently

situated  than  Ishwar.   The  susceptibility  of  eleven  injuries,

including incised wounds, by two accused is considered highly

improbable.  

10. Therefore, in the entirety of the facts and circumstances of

the case, the relationship between PW-1 and the deceased, the

existence of previous animosity, we do not consider it safe and

cannot rule out false implication to uphold the conviction of the

appellants  on  the  evidence  of  a  doubtful  solitary  witness,  as

observed in  State of Rajasthan vs. Bhola Singh and Anr.,

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AIR  1994  SC  542,  (Crl.  Appeal  No.  65  of  1980  decided  on

25.08.1993):

“4.  From the above-stated facts, it can be seen that the case is  rested entirely  on the solitary evidence of P.W.1.  The High Court has pointed out several infirmities in the evidence of P.W.1. It is well-settled that if the case is rested entirely on  the  sole  evidence  of  eye-witness,  such testimony should be wholly reliable.  In this case, occurrence  admittedly  took  place  in  the darkness….”

11. In  Lallu Manjhi and another vs. State of Jharkhand,

(2003)  2  SCC 401,  it  was  observed that  if  ten  persons  were

stated to have dealt with blows with their respective weapons on

the  body  of  the  deceased,  and  that  if  each  one  of  them

assaulted then there would have been minimum of ten injuries

on the person of the deceased.  In the present case, as noticed

there are 11 injuries on the person of the deceased.  Giving the

benefit of doubt granting acquittal, it was observed as follows:

“13….. The version of the incident given by the sole  eyewitness  who  is  also  an  interested witness on account of his relationship with the deceased and being inimically disposed against

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the accused persons is highly exaggerated and not  fully  corroborated  by  medical  evidence. The version of the incident as given in the Court is  substantially  in  departure  from  the  earlier version as contained and available in the first information report.  We cannot, therefore, place reliance on the sole testimony of Mannu (PW 9) for the purpose of recording the conviction of all the accused persons.”

12. We  therefore  find  the  order  of  the  High  Court  to  be

unsustainable and accordingly set it aside.  The appellants are

acquitted.  They are directed to be released forthwith if they are

not required in any other case.

13. The appeal is allowed.

.……………………….J.  (Ashok Bhushan)                   

………………………..J.    (Navin Sinha)   

New Delhi, AUGUST 06, 2019.

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