Singh Vs. State of Haryana  INSC 381 (7 December 1990)
Singh (J) Kuldip Singh (J) Ramaswamy, K.
JT 1990 (4) 781 1990 SCALE (2)1242
Penal Code, 1860: Sections 302, 326/34.
of Criminal Procedure, 1973: Section 173.
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.
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.
appeal the High Court acquitted the co-accused but upheld the conviction and
sentence of the appellant.
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.
the appeal, this Court,
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, 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]
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