JAGDISH AND ANOTHER versus THE STATE OF HARYANA on 6 August 2019

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[2019] 11 S.C.R. 22

SUPREME COURT REPORTS

[2019] 11 S.C.R.

AJAGDISH AND ANOTHER

v.

THE STATE OF HARYANA

(Criminal Appeal No. 1864 of 2019)2009)

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AUGUST 06, 20092019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Penal Code, 1860:

ss. 302, 149 and 148 – Involvement of 13 accused in theCoffence including two juveniles – Conviction of three accused bytrial court – High Court acquitted one of the accused while upholdingthe conviction of the two accused (appellants) – Appeal to SupremeCourt – Held: In view of the previous animosity between the partiesand the relationship between sole eye-witness (PW1) and thedeceased false implication cannot be ruled out – Susceptibility ofDnumber and nature of injuries are improbable in the facts of thecase – High Court has wrongly considered PW-8 to be an eye-witness – In the FIR the eye-witness (PW1) had made generalizedallegations by all the 13 accused, while in her court statement shewas more specific with regard to nature of assault by each accusedE– While the sole eye-witness (PW1) has been severely doubted whileacquitting other accused, she cannot be relied on in a case of mobassault by 13 persons at night – Therefore, the appellants-accusedare acquitted.

Witness:

FSolitary eye-witness – Evidentiary value – Held: Convictionon the basis of solitary eye-witness is sustainable, if there is reliableevidence cogent and convincing alongwith surroundingcircumstances – Evidence of such witness calls for heightenedscrutiny.

GAllowing the appeal, the Court

HELD: 1. PW-8 and PW-1 are husband and wife holdingarms licence in their individual names. They are stated to havebeen accompanied to the place of occurrence by the sister ofPW-8 and one ‘P’ who was also an arms licensee. Surprisingly,Hthe latter two have been given up by the prosecution and have not been examined. All four are stated to have moved away fromthe place of assault out of fear, as claimed. If three of them werepossessed of weapons, there has to be an explanation why theydid not act in self defence when the assault is alleged by lathis,gandasi and guns. It is also difficult to accept that her husbandPW-8 and ‘P’ continued to hide in fear while PW-1 accompaniedby her sister-in-law alone shortly returned to the place ofoccurrence to check on the deceased. An additional fact which isnot only improbable but highly unnatural according to normalsocietal rural customs and mores is that PW-1 accompanied byher sister-in-law alone went to the police station at 3.00 A.M, akilometer away, to lodge the F.I.R. while her husband and ‘P’who was staying with them remained at home. [Para 5] [26-E-G]

2. In the F.I.R. PW-1 made generalized allegations of assaultby all the 13 accused who are stated to have surrounded thedeceased. But her court statement was more specific with regardto the nature of assault made by each of the accused. The twoappellants were armed with lathis by which an incised wound couldnot have been caused. In any event, the number of injuries onthe deceased leaves the Court satisfied that it was the result of amob assault and not an assault by the two appellants alone. Thesusceptibility of eleven injuries, including incised wounds, by twoaccused is considered highly improbable. [Paras 6, 9][26-H; 27-A-C; 28-C]

3. The High Court has committed an error of record byconsidering PW-8 to be an eye-witness without any discussionwhen his presence at the time of occurrence has been disbelievedby the Trial Court. With regard to PW-1, the Trial Court has itselfobserved that her deposition “does not contain the entire truthand it makes the court to sit up and to find out the kernel out ofthe chaff”. This observation assumes significance in view of theacquittal of the remaining accused by the Trial Court itself,excluding the juveniles. [Para 7] [27-D]

4. In the mob assault by 13 persons who had surroundedthe deceased at night, PW-1 was the sole eye-witness. Even if alight was burning, some of the assaulters undoubtedly must havehad their back to PW-1 making identification improbable if notimpossible. The witness has been severely doubted both by the ABC

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24SUPREME COURT REPORTS

Atrail court and the High Court to grant acquittal to the otheraccused. Conviction on the basis of a solitary eye-witness isundoubtedly sustainable if there is reliable evidence cogent andconvincing in nature along with surrounding circumstances. Theevidence of a solitary witness will therefore call for heightenedscrutiny. But in the nature of materials available against theBappellants on the sole testimony of PW-1 which is common to allthe accused in so far as assault is concerned, it is not safe toaccept her statement as a gospel truth in the facts andcircumstances of the present case. If PW-1 could have gone tothe police station alone with her sister-in-law at an unearthly hour,Cthere had to be an explanation why it was delayed by six hours.Given the harsh realities of our times, it is virtually impossiblethat two women folk went to a police station at that hour of thenight unaccompanied by any male. These become crucial in thebackground of the pre-existing enmity between the partiesleading to earlier police cases between them also. The possibilityDof false implication therefore cannot be ruled out completely inthe facts of the case. Therefore, in the entirety of the facts andcircumstances of the case, the relationship between PW-1 andthe deceased, the existence of previous animosity, falseimplication cannot be ruled out and it is not safe to uphold theEconviction of the appellants on the evidence of a doubtful solitarywitness. [Paras 8, 10] [27-E-H; 28-A-B-D]

State of Rajasthan v. Bhola Singh and Anr., AIR 1994SC 542 ; Lallu Manjhi and another v. State ofJharkhand, (2003) 2 SCC 401 : [2003] 1 SCR 1 –Frelied on.Dalip Singh v. State of Punjab, AIR 1953 SC 364 :[1954] SCR 145 ; Sakharam Nangare v. State ofMaharashtra (2012) 9 SCC 249 : [2012] 7 SCR 1186; Khem Karan and others v. State of U.P. and another,G(1974) 4 SCC 603 : [1974] 3 SCR 863 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1864 of 2009

From the Judgment and Order dated 18.07.2008 of the High Courtof Judicature for Punjab and Haryana at Chandigarh in Cr. Appeal No.474/1999

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S. R. Singh, Sr. Adv., Ram Naresh Yadav, Vikrant Yadav, KrishnaK. Yadav, Aadarsh Kumar Verma, Shivam Sharma, V. Sushant Gupta,Advs. for the Appellants.

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Deepak Thukral, Dr. Monika Gusain, Advs. for the Respondent.

The Judgment of the Court was delivered by NAVIN SINHA, J.

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1. 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. Twoof them were tried by the juvenile court. Seven were summoned underSection 319. The Trial Court convicted three persons. One of them,Ishwar has been acquitted by the High Court.

2. Sri S.R. Singh, learned senior counsel, on behalf of the appellantssubmits that once the other accused have been acquitted, the twoappellants alone cannot be convicted with the aid of Section 149 of theIndian Penal Code. The High Court erred in convicting with the aid ofSection 34 in absence of a charge framed under that Section. There isno evidence of any common intention, displaying a prior meeting of mindsto commit the assault. PW-1 and PW-8 were not eye witnesses. Theyreached after the occurrence. Their claim to be eye witnesses is highlyimprobable from their own evidence. An alternative submission was madethat in any event at best it was a case for conviction under Section 304Part-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. Stateof Maharashtra, 2012 (9) SCC 249.

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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 H

Athe fatal assault on the head of the deceased with a lathi while appellantno.1 also assaulted the deceased. The parties resided in the same localityand there is evidence of a street light. Relying on Khem Karan andothers vs. State of U.P. and another, 1974 (4) SCC 603, it was submittedthat because PW-1 was the sister of the deceased, the credibility of herevidence as an eye-witness to the occurrence cannot be doubted toBgrant acquittal in the nature of materials available on the records.

4. We have considered the submissions on behalf of the partiesand perused the materials on record. The parties resided in the samelocality and were known to each other. Animosity existed between thembecause the son of the second appellant had written love letters to theCdaughter of PW-1. Earlier an altercation had taken place between theparties on 20.05.1995 leading to a police case being lodged against bothsides. There was another incident on 12.06.1995 for which the appellantsand the deceased were proceeded with under Sections 107, 151, Cr.P.C.The deceased had been released on bail and was returning from theDhouse of PW-1 on 16.06.1995 at about 9.00 P.M. when the assault isstated to have taken place.

5. PW-8 and PW-1 are husband and wife holding arms licence intheir individual names. They are stated to have been accompanied to theplace of occurrence by Kamla the sister of PW-8 and one Pali RamEwho was also an arms licensee. Surprisingly, the latter two have beengiven up by the prosecution and have not been examined. All four arestated to have moved away from the place of assault out of fear, asclaimed. If three of them were possessed of weapons there has to be anexplanation why they did not act in self defence when the assault isalleged by lathis, gandasi and guns. It is also difficult to accept that herFhusband PW-8 and Palli continued to hide in fear while PW-1accompanied by her sister-in-law alone shortly returned to the place ofoccurrence to check on the deceased. An additional fact which is notonly improbable but highly unnatural according to normal societal ruralcustoms and mores is that PW-1 accompanied by her sister-in-law aloneGwent to the police station at 3.00 A.M, a kilometer away, to lodge theF.I.R. while her husband and Pali Ram who was staying with themremained at home.

6. In the F.I.R. PW-1 made generalized allegations of assault byall the 13 accused who are stated to have surrounded the deceased. ButHher 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 theperson of the deceased. The first injury was bone deep in the right parietooccipital 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 causingfracture, lacerated wound over the right wrist joint over the middle offorearm, on the left side of the chest wall, over the iliac crest, over theleft scapular region with a linear incision due to sharp weapon, over leftdeltoid region and lacerated wound over the right knee left ankle and leftforearm. The two appellants were armed with lathis by which an incisedwound could not have been caused. In any event, the number of injurieson the deceased leaves us satisfied that it was the result of a mob assaultand not an assault by the two appellants alone.

7. The High Court has committed an error of record by consideringPW-8 to be an eye witness without any discussion when his presence atthe time of occurrence has been disbelieved by the Trial Court. Withregard 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 tofind out the kernel out of the chaff”. This observation assumes significancein view of the acquittal of the remaining accused by the Trial Courtitself, excluding the juveniles.

8. The question that arises to our mind is that in the mob assaultby 13 persons who had surrounded the deceased at night, PW-1 was thesole eye-witness. Even if a light was burning some of them undoubtedlymust have had their back to PW-1 making identification improbable ifnot impossible. The witness has been severely doubted both by the trailcourt and the High Court to grant acquittal to the other accused. Canthe evidence of a solitary doubtful eye witness be sufficient forconviction? We may have a word of caution here. Conviction on basisof a solitary eye witness is undoubtedly sustainable if there is reliableevidence cogent and convincing in nature along with surroundingcircumstances. The evidence of a solitary witness will therefore call forheightened scrutiny. But in the nature of materials available against theappellants on the sole testimony of PW-1 which is common to all theaccused in so far as assault is concerned, we do not consider it safe toaccept her statement as a gospel truth in the facts and circumstances ofthe present case. If PW-1 could have gone to the police station alonewith her sister-in-law at an unearthly hour, there had to be an explanation AB

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Awhy it was delayed by six hours. Given the harsh realities of our timeswe find it virtually impossible that two women folk went to a policestation at that hour of the night unaccompanied by any male. Thesebecome crucial in the background of the pre-existing enmity betweenthe parties leading to earlier police cases between them also. Thepossibility of false implication therefore cannot be ruled out completelyBin the facts of the case.

9. The High Court concluded that the appellants alone were theassailants of the deceased. Ishwar is also stated to have assaulted witha lathi capable of causing lacerated wounds. We find it difficult to holdthat the appellants were any differently situated than Ishwar. TheCsusceptibility of eleven injuries, including incised wounds, by two accusedis considered highly improbable.

10. Therefore, in the entirety of the facts and circumstances ofthe case, the relationship between PW-1 and the deceased, the existenceof previous animosity, we do not consider it safe and cannot rule outDfalse implication to uphold the conviction of the appellants on the evidenceof a doubtful solitary witness, as observed in State of Rajasthan vs.Bhola Singh and Anr., AIR 1994 SC 542, (Crl. Appeal No. 65 of 1980decided on 25.08.1993):

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

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 dealtwith blows with their respective weapons on the body of the deceased,and that if each one of them assaulted then there would have beenminimum of ten injuries on the person of the deceased. In the presentGcase, 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 eyewitnesswho is also an interested witness on account of his relationshipwith the deceased and being inimically disposed against theHaccused persons is highly exaggerated and not fully corroborated by medical evidence. The version of the incident as given in theCourt is substantially in departure from the earlier version ascontained 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 accusedpersons.”

12. We therefore find the order of the High Court to beunsustainable and accordingly set it aside. The appellants are acquitted.They are directed to be released forthwith if they are not required in anyother case. In the event of having been released on bail, their bail bondsshall stand discharged.

13. The appeal is allowed.

Kalpana K. Tripathy

Appeal allowed.

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