Swarn Singh & Anr. Vs. State of Punjab
EmailAppeal: Criminal Appeal No. 787 of 1999
Petitioner: Swarn Singh & Anr.
Respondent: State of Punjab
Apeal: Criminal Appeal No. 787 of 1999
Judges: K.T. THOMAS & S.N. PHUKAN, JJ.
Date of Judgment: Dec 06, 2001
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860
Section 302/34 with Evidence Act, 1872 – Sections 3, 27 – Murder – Occurrence seen by brother of deceased and brother of one accused – FIR lodged by brother of the accused – Said informant not examined during trial but was examined at the instance of High Court – FIR disowned by him – Recovery of weapon of offence, a spade at instance of accused – However, no bloodstains found – Prosecution left with evidence of brother of deceased – Material facts of hearing commotion from the room of tube-well and going out of deceased and informant together, absent in statement under section 161 Cr.P.C. – No corroboration of statement by any circumstance. Held that the witness was not a “wholly reliable witness” and benefit of doubt given to accused. Ramji Suriya Padvi’s case relied upon. (Paras 4, 7 to 9)
Indian Penal Code, 1860
Section 302/34 with Evidence Act, 1872 – Sections 3, 27 – Murder – Occurrence seen by brother of deceased and brother of one accused – FIR lodged by brother of the accused – Said informant not examined during trial but was examined at the instance of High Court – FIR disowned by him – Recovery of weapon of offence, a spade at instance of accused – However, no bloodstains found – Prosecution left with evidence of brother of deceased – Material facts of hearing commotion from the room of tube-well and going out of deceased and informant together, absent in statement under section 161 Cr.P.C. – No corroboration of statement by any circumstance. Held that the witness was not a “wholly reliable witness” and benefit of doubt given to accused. Ramji Suriya Padvi’s case relied upon. (Paras 4, 7 to 9)
Cases Reffered:
1. Ramji Suriya Padvi v. State of Maharashtra (1983 (3) SCC 629 ) (Para 8)
2. Vadivelu Thevar v. The State of Madras (1957 SCR 981) (Para 6)
2. Vadivelu Thevar v. The State of Madras (1957 SCR 981) (Para 6)
JUDGEMENT:
ORDER
1. Two persons were convicted for the murder of Harband Singh. A-1 Swarn Singh was convicted with the aid of section 34 while A-2 Mahinder Singh was convicted for the murder directly. A division bench of the High Court confirmed the conviction and sentence of life imprisonment and dismissed the appeal filed by both of them.
2. The prosecution case is this: There was some dispute regarding land between the first accused Swarn Singh and his sister-in-law Bhajno. On 12th September, 1992 deceased Harband Singh, his brother and the brother of Mahinder Singh A-2, went to the house of the wife of first accused Swarn Singh. After chatting for some time, they went out for a stroll. Deceased wanted to go ahead for answering the call of nature. It was at the said stage that A-1 and A-2 had taken him to a room attached to the tubewell belonging to A1-Swarn Singh, where he was murdered. The head of the deceased was held by A1-Swarn Singh when A2-Mahinder Singh inflicted blows on the neck portion with a spade.
3. Hearing the commotion, brother of the deceased ran to the place. He is PW-2. He saw the incident. The FIR was lodged by PW-12 Charan Singh, the brother of first accused A1-Swarn Singh. Though the public prosecutor in the trial court did not choose to examine PW-12 Charan Singh as he got the information that Charan Singh was won over by the defence, the High Court wanted the evidence of Charan Singh to be recorded when the matter was pending in appeal. Hence, Charan Singh was examined by the trial court on the direction given by the High Court. But Charan Singh did not support the prosecution case and he disowned the FIR under his signature. The consequence is that evidence of PW-12 Charan Singh has become totally useless for the prosecution. Even the FIR has lost its evidentiary value because its author had disowned it completely.
4. Entire case of the prosecution now depends upon the reliability of the testimony of PW-2 Harbhajan Singh, the brother of the deceased. We ascertained whether any other circumstance could be fretted out from the prosecution evidence to seek corroboration of the evidence of PW-2. Even the evidence relating to recovery of the spade has unfortunately become unusable for the prosecution as the spade did not contain any blood. The statement of A-2 which led to the recovery of spade from the room attached to the tubewell is merely that “I have kept the spade in the tubewell room”. That is not an unnatural conduct or even an incriminating circumstance, and it is not unusual for any person to keep a spade in such a room.
5. We also ascertained whether there is any other circumstance such as the statement of the deceased, or that anybody had seen the accused leaving the tubewell room soon after the occurrence etc., etc. We are told that there is no such evidence at all.
6. Thus, we are left with the only evidence of PW-2, Harbhajan Singh. Unless he can be treated as belonging to the category of “wholly reliable witness” as envisaged by this Court in Vadivelu Thevar v. The State of Madras (1957 SCR 981) it is an uphill tasks for the prosecution to maintain the conviction as against the two appellants.
7. For the purpose of examining whether the testimony of PW-2 can be treated as wholly reliable, we had scanned through his evidence. He said that the occasion for him to reach the tubewell was because he heard the sound of a commotion from that side. The cross-examiner confronted him with the statement recorded under section 161 of the Code of Criminal Procedure wherein that fact is not stated. He was also asked whether he told the police that the deceased and PW-12 had gone out together earlier which was also absent in the C-D statement. Those are shown to be material aspects and it is contended that PW-2 had made improvements to make his presence at the place of occurrence plausible.
8. Mr. K.T.S Tulsi, learned senior counsel contended that PW-2 also would have had the same animus towards the accused which the deceased had shared because both of them are the children of the same parents. He relied on the following observation of this Court in Ramji Suriya Padvi v. State of Maharashtra (1983 (3) SCC 629):
“There is no doubt that even where there is only a sole eyewitness of a crime, a conviction may be recorded against the accused concerned provided, the court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill-will is suggested.”
9. We bestowed our anxious consideration and weighed the evidence of PW-2 on the balance, particularly in the light of the concurrent findings made by the trial court and the High Court. We are unable to treat the testimony of PW-2 as “wholly reliable”. If there is any other corroborative circumstance to lend assurance to our judicial conscience that what PW-2 had spoken in the court is nothing but truth, we would have learned to rely on his testimony. In the total absence of any such circumstance, we are led to the only course of giving the benefit of doubt to the accused in this case.
10. In the result, we allow this appeal and set aside the conviction and sentence passed on the appellants. We acquit them and direct them to be set at liberty forthwith unless they are required in any other case.
1. Two persons were convicted for the murder of Harband Singh. A-1 Swarn Singh was convicted with the aid of section 34 while A-2 Mahinder Singh was convicted for the murder directly. A division bench of the High Court confirmed the conviction and sentence of life imprisonment and dismissed the appeal filed by both of them.
2. The prosecution case is this: There was some dispute regarding land between the first accused Swarn Singh and his sister-in-law Bhajno. On 12th September, 1992 deceased Harband Singh, his brother and the brother of Mahinder Singh A-2, went to the house of the wife of first accused Swarn Singh. After chatting for some time, they went out for a stroll. Deceased wanted to go ahead for answering the call of nature. It was at the said stage that A-1 and A-2 had taken him to a room attached to the tubewell belonging to A1-Swarn Singh, where he was murdered. The head of the deceased was held by A1-Swarn Singh when A2-Mahinder Singh inflicted blows on the neck portion with a spade.
3. Hearing the commotion, brother of the deceased ran to the place. He is PW-2. He saw the incident. The FIR was lodged by PW-12 Charan Singh, the brother of first accused A1-Swarn Singh. Though the public prosecutor in the trial court did not choose to examine PW-12 Charan Singh as he got the information that Charan Singh was won over by the defence, the High Court wanted the evidence of Charan Singh to be recorded when the matter was pending in appeal. Hence, Charan Singh was examined by the trial court on the direction given by the High Court. But Charan Singh did not support the prosecution case and he disowned the FIR under his signature. The consequence is that evidence of PW-12 Charan Singh has become totally useless for the prosecution. Even the FIR has lost its evidentiary value because its author had disowned it completely.
4. Entire case of the prosecution now depends upon the reliability of the testimony of PW-2 Harbhajan Singh, the brother of the deceased. We ascertained whether any other circumstance could be fretted out from the prosecution evidence to seek corroboration of the evidence of PW-2. Even the evidence relating to recovery of the spade has unfortunately become unusable for the prosecution as the spade did not contain any blood. The statement of A-2 which led to the recovery of spade from the room attached to the tubewell is merely that “I have kept the spade in the tubewell room”. That is not an unnatural conduct or even an incriminating circumstance, and it is not unusual for any person to keep a spade in such a room.
5. We also ascertained whether there is any other circumstance such as the statement of the deceased, or that anybody had seen the accused leaving the tubewell room soon after the occurrence etc., etc. We are told that there is no such evidence at all.
6. Thus, we are left with the only evidence of PW-2, Harbhajan Singh. Unless he can be treated as belonging to the category of “wholly reliable witness” as envisaged by this Court in Vadivelu Thevar v. The State of Madras (1957 SCR 981) it is an uphill tasks for the prosecution to maintain the conviction as against the two appellants.
7. For the purpose of examining whether the testimony of PW-2 can be treated as wholly reliable, we had scanned through his evidence. He said that the occasion for him to reach the tubewell was because he heard the sound of a commotion from that side. The cross-examiner confronted him with the statement recorded under section 161 of the Code of Criminal Procedure wherein that fact is not stated. He was also asked whether he told the police that the deceased and PW-12 had gone out together earlier which was also absent in the C-D statement. Those are shown to be material aspects and it is contended that PW-2 had made improvements to make his presence at the place of occurrence plausible.
8. Mr. K.T.S Tulsi, learned senior counsel contended that PW-2 also would have had the same animus towards the accused which the deceased had shared because both of them are the children of the same parents. He relied on the following observation of this Court in Ramji Suriya Padvi v. State of Maharashtra (1983 (3) SCC 629):
“There is no doubt that even where there is only a sole eyewitness of a crime, a conviction may be recorded against the accused concerned provided, the court which hears such witness regards him as honest and truthful. But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill-will is suggested.”
9. We bestowed our anxious consideration and weighed the evidence of PW-2 on the balance, particularly in the light of the concurrent findings made by the trial court and the High Court. We are unable to treat the testimony of PW-2 as “wholly reliable”. If there is any other corroborative circumstance to lend assurance to our judicial conscience that what PW-2 had spoken in the court is nothing but truth, we would have learned to rely on his testimony. In the total absence of any such circumstance, we are led to the only course of giving the benefit of doubt to the accused in this case.
10. In the result, we allow this appeal and set aside the conviction and sentence passed on the appellants. We acquit them and direct them to be set at liberty forthwith unless they are required in any other case.
