JARNAIL SINGH

STATE OF PUNJAB

NOVEMBER 23, 1995

[M.K. MUKHERJEE AND B.N. KIRPAL, JJ.]

Indian Penal Code-Sections 302, 307 and 34--Evidence found unacceptable against two accused-Whether could be relied on to convict other co-accused--Evidence Act-Generally.

Indian Penal Code-Sections 302, 307 and 34-Deceased sustained three injuries-One injury caused by X fatal, the others caused by Y not fatal-X acquitted but Y convicted under S.302-Held, cannot be sustained.

Evidence Act-Generally-Evidence of defence witness examined on D behalf of one accused-If can be relied on against the another.

The appellant along with four others was tried for commission of offence unde_r sections 302, 307 and 147 I.P.C. The case of the prosecution was that there was an altercation between few of the accused and the two deceased as well as PW4 and PW6 over dismantling of water course of the deceased. It was alleged that while the deceased and their two brothers (PW4 and PW6) were returning back to their village, the accused _confronted them armed with rifles. On being instigated by his father, the appellant fired from his rifle hitting one of the deceased on his back. His brother fired at the same deceased and hit him on his left shoulder. The other deceased was hit by another co-accused.

The post-mortem report of the deceased, who was shot at by the appellant, showed three injuries on the deceased, injury No. 1 was a lacerated wound on top and back of left shoulder which, in the opinion of G the doctor, had caused the death. Injuries Nos. 2 and 3 were on the upper half of the chest, injury No. 2 being the wound of entry and injury No. 3 being the wound of exit.

During the trial, PW4 and PW6 deposed as eye-witnesses for the prosecution. The defence too examined DW5 who claimed to be an eye-wit- H ness to the occurrence. In this cross examnation, DW5 admitted that the 584

JARNAILSINGHv. STATE 585

appellant has fired at the deceased.

The Trial Court acquitted two of the accused on the ground that they were not residents of the village to which the deceased or the accused belonged and were unlikely to be present at the place of occurrence with rifles and participate in the murder which arose out of a dispute between two families. The Trial Court also acquitted the father of the appellant on the ground that he had only raised a lalkara (exhortation) and therefore, it was not safe to convict him on the basis of that accusation alone.

However, the case against the appellant and his brother was held to be proved and they were convicted under section 302 read with section 34 IPC and sentenced to suffer imprisonment for life and to pay a fine of Rs. 2000.

The High Court, on appeal, gave the brother of the appellant the benefit of doubt as DWS did not mention him as one of the persons firing at the deceased and acquitted him but affirmed the conviction of the appellant.

Before this Court, the appellant contended that both Trial Court and the High Court found the evidence of PW4 and PW6 unacceptable as against the other accused persons and therefore, they should not have relied upon their evidence for convicting the appellant.

This Court, converting the offence under section 302 IPC into one of section 307 IPC.

HELD : 1.1. The Trial Court recorded the order of acquittal in respect of three of the accused persons by giving them the benefit of doubt

and not on a finding that the evidence of the two eye witness examined by F the prosecution was totally false and absolutely unreliable. Therefore, the Trial Court could have relied upon the evidence of PW4 and PW6 to convict the co-accused. [588-G-H; EJ

1.2. The contention of the appellant that the Courts below could not have relied only upon the evidence of DWS to convict the appellant could G have been accepted if the learned Courts below had, after discarding the evidence of P.W. 4 and P.W. 6 altogether, based their findings against the appellant solely relying upon the ocular version of the incident given out by D.W.S for in criminal cases the burden of proving the guilt of the accused beyond all reasonable doubts always rests on the prosecution. In H

A the instant case, however, the learned Courts below made use of the evidence of D.W.5 only for lending assurance to the conclusions already drawn by the learned Courts on the basis of the evidence of PWs. 4 and 6.

Such a course is legally and legitimately permissible, for D.W. 5 was subjected to cross-examination - and in fact cross-examined - at the

B instance of the appellants after being cross examined by the Public

Prosecutor. [589-C-F]

2. In the context of the evidence of P.Ws. 4 and 6 that the appellant had fired on the back of the deceased the appellant can be said to have caused injuries No. 2 and 3 and the other injury which, according to the C doctor was fatal, was caused by the shot fired by the brother of the appellant. Since, however, the brother of the appellant stands acc1uitted, section 34 IPC would have no application whatsoever and the appellant will be liable only for his act, namely, causing injuries Nos. 2 and 3, which were the result of one shot, and, by themselves, did not cause the death of the deceased. Resultantly, the appellant cannot be convicted for the offence D under section 302 IPC, but as he had fired at S' with rifle he cannot escape his conviction for the attempt to commit his murder. (590-F-H]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165of1983.

From the Judgment and Order dated 19.5.82 of the Punjab & Haryana High Court in Crl. A. No. 660-DB of 1981.

N.D. Garg for the Appellant.

F R.S. Suri for Respondent.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. The appellant along with four others, including his father, brother and nephew, was tried by the learned Additional G Sessions Judge, Amritsar for rioting, committing murders and attempting to commit murders. The learned Judge convicted the appellant and his brother Sukhwinder Singh under section 302 read with section 34 IPC (on two counts) and sentenced each of them to suffer imprisonment for life and to pay a fine of Rs. 2,000 in default, to suffer rigorous imprisonment H for ope year, while acquitting the other three. In appeal, preferred by the

.TARNAILSINGH v. STATE (M.K. MUKHERJEE, J.] 5.87

two convicts, the High Court affirmed the conviction and sentence of the A appellant but acquitted Sukhwinder Singh. Hence this appeal by the appellant after obtaining special leave.

The prosecution case in brief is that on October 27, 1979 at or about 9 A.M. the acquitted accused Sukhwinder Singh was preparing a path to his belzak (farm house) by dismantling the water course of Sukhdev Singh (one of the two deceased) and his brothers running through their lands while Gurmej Singh (since acquitted, father of the appellant and Sukhwinder Singh, was standing nearby. This was objected to by Sukhdev Singh, his brothers Surjit Singh (the other deceased), Dhanwant Singh

(PW4) and Manohar Singh (PW6) which led to an exchange of hot words

c and abuses between the parties. Thereafter Gurmej Singh and Sukhwinder Singh left for their belzak and the two deceased and their brother for their village Khatra Khurt. On their way to the village when the letter group had reached the)anj ghar (place for marriage parties) the five accused along with one Joginder Singh (since absconding) accosted them. Except Gurmej D Singh, who was unarmed, all had rifles in their hand. Gurmej Singh raised a lalkara saying that they should be taught a lesson for stopping them from preparing the; path to their belzak whereupon Joginder Singh fired from his rifle hitting Surjit Singh on his chest. Then the appellant fired from his rifle hitting Sukhdev Singh on his back. Sukhwinder Singh also fired from his rifle which hit Sukhdev Singh on his left shoulder. On being so fired at, both of them fell down on the ground. The other accused persons also fired from their rifles aiming at Dhanwant Singh and Manohar Singh but their shots hit the walls of the nearby house of Ajit Singh. Thereafter all the accused persons fled away.

F The witnesses then took injured Sukhdev Singh and Surjit Singh to their house nearby but by then they had succumbed to their injuries.

Dhanwant Singh then went to Majithia Police Station and lodged a First lnform<.tion Report SJ. Janak Raj (P.W. 12) registered a case on that report and left for village Khatra Khurt. He first went to the house of the deceased and after holding inquest upon the dead bodies sent them for G post-mortem examination. He then went to the place of occurrence and seized some blood stained earth and also some pellets found embedded on the walls of the house of Ajit Singh. After receipt of the report of the post mortem examination held on the two dead bodies by Dr. Harish Chander Vaid (PW 5) and on completion of investigation SJ. Janak Raj submitted H

A charge sheet and in due course and case was committed to the Court of Session.

The accused persons pleaded not guilty to the charges levelled against them and contended that they had been falsely implicated.

To prove its case 'prosecution examined twelve witnesses of whom Dhanwant Singh (PW 4) and Manohar Singh (PW6), the two brothers of the deceased, figured as eye witnesses; and in their defence the accused persons examined five witnesses, including Swaran Singh (DW 5) who also claimed to have witnessed the occurrence.

From the judgment of the learned Courts below it appears that the Trail Court found the evidence of PW 4 and PW 6 suspect as against accused Harp al Singh and J aswinder Singh on the ground that as they were not residents of the village to which the deceased and the other accused D belonged it was unlikely that they would be present at the material time with rifles in their hands, much less, participate in the murders which arose out of a dispute between those two families over dismantling of a water course. In dealing with the case of accused Gurmej Singh, the father of the appellant, the Trial Court observed that the allegation against him was only

of raising a lalkara and it would not be safe to convict him on such accusation alone. The Trial Court, however, held that the evidence of the above two eye witnesses was reliable as against the appellant and his brother Sukhwinder Singh and that their evidence was strengthened by that of Swaran Singh (DW 5). The High Court concurred with all the findings of the Trial Court but gave the benefit of doubt to Sukhwinder Singh as Swaran Singh (DW 5) did not mentioned him as one of the persons who fired at the deceased.

Mr. Lalit, the learned counsel appearing for the appellant submitted that both the Trial Court and the High Court, having found the evidence G of PW 4 and PW 6 unacceptable as against the other accused persons, should not have relied upon the self same evidence to convict the appellant.

We are not impressed by this contention for, the Trial Court recorded the order of acquittal in respect of three of the accused persons by giving them the benefit of doubt and not on a finding that the evidence of the two eye H witnesses examined by the prosecution was totally false and absolutely

JARNAILSINGHv. STATE [M.K. MUKHERJEE, J.] 589

unreliable.

It was next contended by Mr. Lalit that neither the Trial Court not the High Court was justified in relying upon the evidence of the defence witness Swaran Singh (D.W. 5) to record the conviction against the appellant. According to Mr. Lalit, the prosecution having failed to prove its case against the appellant through its eye-witnesses, namely, P.W. 4 and P.W. 6 could not claim its success solely on the basis of the evidence of D.W. 5, more so, when he figured as a witness not on behalf of the appellant but on behalf of some of the other accused persons. We might have persuaded ourselves to accept the above contention of Mr. Lalit, if the learned Courts below had, after discarding the evidence of P.W. 4 and P.W. 6 altogether, based their findings against the appellant solely relying upon the ocular

ersion of the incident given out by D.W. 5, who was examined on, behalf of two of the other accused persons to prove that they were not party to

the murders but admitted, in cross-examination by the learned Public Prosecutor, that the appellant had fired at the deceased, for in criminal D cases the burden of proving the guilt of the accused beyond all reasonable doubts. always rests on the prosecution and, therefore, if it fails to adduce satisfactory and reliable evidence to discharge that burden it cannot fall back upon the evidence adduced by the accused persons in support of their defence to rest its case solely thereupon. In the instant case, however, we find that the learned Courts below made use of the evidence of D.W.5 only E

for lending assurance to the conclusions already drawn by the learned Courts on the basis of the evidence of P.Ws 4 and 6. Such a course is legally and legitimately permissible, for D.W. 5 was subjected to crossexamination - and in fact cross-examined - at the instance of the appellants after being cross examined by the Public Prosecutor. That the appellant could not elicit any answer in his favour thereby would not alter the position as regards the admissibility, relevancy or worth of the evidence of the above witness.

It was lastly contended by Mr. Lalit that even if the prosecution case G was accepted in its entirety the appellant could not be, consequent upon the acquittal of Sukhwinder Singh by the High Court, convicted under section 302 IPC simpliciter as neither the death of Sukhdev Singh nor that of Surjit Singh could be allributable to the injuries caused by him. To appreciate this contention of Mr. Lalit it will be necessary to refer to the H

A relevant evidence on record, particularly, that of Dr. Harish Chand Vaid

(PW 5) who had had conducted the post-mortem examination. As has been already noticed, according to the prosecution case, as detailed through PW 4 and PW 6, Surjit Singh was fired at only by the absconding accused J oginder Singh resulting in his death. The appellant, therefore, cannot at B all be liable for that murder. So far as Sukhdev SiJ.?-gh is concerned, P.W. 4 & P.W. 6 testified that the appellant shot at his back and Sukhwinder Singh at his shoulder. From Dr. Vaid (PW 5), we get that he found the following injuries on the person of Sukhdev Singh :

1. A lacerted wound on top and back of left shoulder measuring 2 1/2 cm. x 1/4 cm. The margins were ecchymosed and inverted.

2. A lacerted wound 1 1/4 cm. x 1 cm. on back and right side of the upper half of chest placed 7 cm. from midline. The margins were inverted and ecchymosed.

3. A lacerted would 3 1/2 cm. x 1 1/2 cm., on back and right side of upper half of chest placed 2 cm. inner to injury No. 2. It was obliquely placed. The margins were inverted.

Dr. Vaid stated that injury Nos. 2 and 3 were communicating with E each other; while injury No. 2 was the wound of entry injury No. 3 was the wound of exit. Dr. Vaid further stated that on dissection of injury No. 1 he found that bulletafter fracturing the acrornion and left scapula entered the upper lobe of left lung, which was ruptured at three places. He opined that death was due to shock and haemorrhage as a result of injury to the left

F lung, accompanied with fracture. In the context of the evidence of P.Ws. 4 and 6 that the appellant had fired on the back of the deceased Shukhdev Singh, the appellant can therefore, be said to have cause injuries No. 2 and 3 and the other injury which, according to the doctor was fatal, was caused by the shot fired by Sukhwinder Singh. Since, however, Sukhwinder Singh stands acquitted, section 34 IPC would have no application whatsoever and G the appellant will be liable only for his act, namely, causing injuries No. 2 and 3, which was the result of one shot, and, by themselves, did not cause the death of Sukhwinder Singh. Resultantly, the appellant cannot be convicted for the offence under section 302 IPC, but as he had fired at Sukhdev Singh with rifle he cannot escape his conviction for the attempt to commit H his murder. The last contention for Mr. Lalit, therefore, must be accepted.

JARNAILSINGHv. STATE (M.K. MUKHERJEE, J.J 591

On the conclusions as above, we allow this appeal in part, set aside A the conviction and sentence recorded against the appellant under section 302 IPC and instead thereof convict him under section 307 IPC; and for the altered conviction sentence him to undergo rigorous imprisonment for ten years. The appellant, who is on bail, will now surrender to his bail bond to serve out the above sentence. The appeal is thus partly allowed.

B.K.M.

Appeal partly allowed.