Harchand Singh & ANR Vs. State of
Haryana  INSC 158 (31 August 1973)
KHANNA, HANS RAJ KHANNA, HANS RAJ
CITATION: 1974 AIR 344 1974 SCR (1) 583 1974
SCC (2) 397
Penal Code-Accused convicted under s. 304 11
read with s. 34 by the trial court-on cross appeal. High Court substituted
conviction u/s. 304 to conviction u/s 302 R.W.S. 34-Whether conviction
possible, when prosecution produces a set of evidence which contradict and
strikes at the other.
Six persons were tried in the Court of Addl.
Sessions Judge in connection with the death of the victim. The trial Court
acquitted 3 but convicted 2 under Sec. 304 Part II read with s. 34 I.P.C. and
the other one was convicted under 323 I.P.C. and they were sentenced
Two cross appeals were, thereafter, filed-one
by the convicts challenging their conviction and the other by the State praying
that the convictions of the 3 accused be under s. 302 read with s. 34, I.P.C.
The High Court acquitted one of them but convicted the other two under s. 302
read with S. 34 I.P.C. and sentenced them to undergo imprisonment for life and
hence the appeal before this Court.
The prosecution, in support of its case,
examined two sets of eye witnesses. The evidence of one set consisted of the
testimony of three eye witnesses. The trial court, did not place any reliance
upon their testimony nor upon the dying declaration. The other eye witness upon
whose testimony the prosecution and the trial court placed reliance was P.W.
14, who professed to be working with the deceased at the time of occurrence.
Allowing the appeal,
HELD : The function of the Court in a
Criminal Trial is to find whether the person arraigned before it is guilty of
the offence with which he is charged. For this purpose, the Court scans the
material on record to find whether there is any reliable and trust 'worthy
evidence upon the basis of which it is possible to convict the accused and to
hold that he is guilty of the offence with which he is charged. If in a case,
the prosecution leads two sets of evidence, each one of which contradict and
strikes at the other and shows it to be unreliable the conviction cannot be
sustained. [587E] Vadivalu Thevar v. The State of Madras,  S.C.R. 981,
referred to and distinguished.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 32 of 1970.
From the Judgment and order dated the 23rd
April, 1969 of the Punjab and Haryana High Court in Criminal Appeal Nos.320 and
672 of- 1967.
Nuruddin Ahmed and D. Goburdhan, for the
H. S. Marwah and R. N. Sachthey. for the
respondent The Judgment of the Court was delivered by KHANNA, J. Harchand
Singh, Jaswant Singh, Jaswinder Singh, Sadhu Singh, Gaijan Singh and Labh Singh
were tried in the court of Additional Sessions Judge, Ludhiana in connection
with an occurrence 584 which resulted in the death of Ajaib Singh. The trail
court acquitted Sadhu Singh, Gajjan Singh and Labh Singh.
Harchand and Jaswant Singh were convicted by
the trail court under section 304 part It read with section 34 Indian Penal
Code and each of them was sentenced to undergo rigorous imprisonment for a
period of seven years. Jaswinder Singh was convicted under section 323 Indian
Penal Code and sentenced to undergo rigorous imprisonment for a period of one
year. Two cross appeals were thereafter filed in the Punjab it Haryana High
Court. One of the appeals was by Harchand Singh, Jaswant Singh and Jaswinder
Sing, challenging their conviction. The other appeal was by the State of Punjab
wherein it was prayed that the conviction of Harchand Singh,jaswant singh and
Jaswinder Singh should be under section 302 read with section 34 Indian Penal
The High Court acquitted Jaswinder Singh. The
appeal by the State against Harchand Singh and Jaswant Singh was accepted and
those two accused were convicted under section 302 read with section 34 Indian
Penal Code and each of them was sentenced to undergo imprisonment for life.
HArchand Singh and Jaswant Singh thereafter came up in appeal to this Court by
The prosecution case is that Gulab Kaur widow
of Jwala Singh made a will of land measuring about fifty bighas in favour of
Ajaib Singh deceased and his brother Tej Singh. Gulab Singh died about two
years before the present occurrence.
After her death, the land of Gulab Kaur was
under the cultivating possession of Ajaib Singh and Teja Singh. The accused are
collaterals of Jwala Singh, husband of Gulab Kaur and felt aggrieved because of
the execution of the will by Gulab Kaur in favour of Ajaib Singh and Teja
Singh. On June 12, 1966 at about 10 or 11 a.m., it is stated, Ajaib Singh went
to work his well known as "nawa Khu" in the area of village Jaipura.
The six accused, who were present at their well close to the well of Ajaib
Singh, then came there. Sadhu Singh and Harchand Singh at that time were armed
with barchhas. Jaswinder Singh, Gajjan Singh and Labh Singh had gandasas,
Jaswant Singh had takwa. On arrival there, the accused stated that they would
not allow Ajaib Singh to take water from the well. The accused also stared
inflicting injuries upon Ajaib Singh with their respective weapons. The
occurrence, it is stated, was witnessed by Ajaib Singh's two sons Amarjit Singh
and Mal Singh as well as by his brother Teja Singh. Amarjit Singh, Mal Singh
and Teja Singh were stated to be present in a nearby field at that time. They
rushed to the spot where Ajaib Singh was being assaulted. The accused then ran
away. Ajaib Singh was put on a cart was taken first to Duraha and thereafter to
Payal. As the doctor was not available either in the Duraha Hospital or Payal
hospital, Ajaib Singh was taken in a taxi to Khanna. The party arrived at
Khanna hospital at about 6.30 p.m. Dr. Shamsher Singh incharge of the hospital
then sent an intimation to police station Khanna statin that Ajaib Singh's
condition was serious and his statement might be recorded. ASI Harbhajan Singh
then went to the hospital and recorded statement PIK of Ajaib Singh at 7.30
p.m. In the said statement, Ajaib Singh gave the version of the occurrence as
given above. Ajaib Singh died in the hospital soon thereafter at 8.45 p.m.
585 Intimation about the recording of the
dying declaration of Ajaib Singh was sent to police station Payal. A case was
thereupon registered at that police station and a formal first information
report was prepared on the basis of the dying declaration of Ajaib Singh.
Sub Inspector Hoshiar Singh took over the
investigation of this case. He arrested the accused on June 16, 1966 when they
were found to be hiding at Duraha power-house. The different accused were
thereafter interrogated. Harchand Singh then got recovered a blood-stained
barchha. Jaswant Singh got recovered a blood-stained takwa, while Jaswinder
Singh got recovered a blood-stained gandasa.
Post mortem examination on the body of Ajaib Singh
deceased was performed by Dr. Gurcharan Singh Randhrawa on June 13, 1966 at I
At the trial the accused the prosecution
allegations and stated that they had been falsely involved in the case.The
trial court did not place any reliance upon the testimony of Amarjit Singh
(PW2), Mal Singh (PW 3), and Teja Singh (PW4) who were examined as eye
witnesses of the occurrence and who had supported the prosecution case, as
given above. The trial court did not also place any reliance upon the dying
declaration of Ajaib Singh. Reliance was, however, placed by the trial court
upon the evidence of Ram Asra (PW 14) who professed to be working with the
deceased at the time of occurrence. Ram Asra's statement, it would appear from
the record, was recorded by the police on June 13, 1966 during the
investigation of the case. According to Ram Asra, only three of the accused,
namely, Harchand Singh, Jaswant Singh and Jaswinder Singh were present at the
time of the occurrence, while the other three accused were not present.
It was further stated by Ram Asra that
injuries to Ajaib Singh deceased had been caused by Harchand Singh with a drat
(sickle) and by Jaswant Singh with a kirpan. Relying upon the evidence of Ram
Asra, the trial court convicted Harchand Singh and Jaswant Singh for offence
under section 304 part 11 read with section 34 Indian Penal Code. Jaswinder
Singh, who was stated to be emptyhanded, was convicted under section 323 Indian
When the matter was taken up in appeal to the
High Court, the learned Judges took the view that the trial court was not
justified in throwing over-board the testimony of Amarjit Singh, Mal Singh and
Teja Singh. The High Court after taking into consideration the evidence of
those three witnesses as well the evidence of Ram Asra PW came to the
conclusion that the complicity of Harchand Singh and Jaswant Singh was
established beyond any reasonable doubt. So far as Jaswinder Singh was
concerned, the High Court held that no case has been proved against them. The
High Court was further of the opinion that the case against Harchand Singh and
Jaswant Singh fell under section 302 read with section 34 and not under section
304 part II read with section 34 Indian Penal Code. Harchand Singh and Jaswant
Singh were accordingly convicted and sentenced as above.
586 We have heard Mr. Nuruddin on behalf of
the appellants and Mr. Marwah on behalf of the State and are of the opinion
that the conviction of the appellants cannot be sustained.
It cannot be disputed that a murderous
assault was made on Ajaib Singh on the day of occurrence as a result of which
he died. The evidence of Dr. Shamsher Singh, who examined Ajaib Singh when he
was taken to Khanna hospital as well as the evidence of Dr. Gurcharan Singh
Randhawa who performed post mortem examination on the dead body, shows that as
many as eighteen injuries were inflicted upon Ajaib Singh deceased. Out of
them, seven had been caused by sharp-edged weapons. Death, in the opinion of
Dr. Randhawa, was due to shock and hemorrhage as a result of the cumulative
effect of the injuries. According to the case of the prosecution, the two
appellants joined in the assault on the deceased as a result of which the
latter died. The prosecution in support of its case examined two sets of eye
witnesses. The evidence of one set consists of the testimony of Amarjit Singh,
Mal Singh and Teja Singh. So far as these witnesses are concerned, the trial
court came to the conclusion that they were not present near the scene of
occurrence and had not witnessed the occurrence. The trial court in support of
this conclusion gave reasons which appear to be cogent and weighty and find no
particular ground to take a different view. The evidence of Ram Asra, who
according to the prosecution case was with Ajaib Singh deceased at the time of
the occurrence, shows that Amarjit Singh, Mal Singh and Teja Singh were not
present at the time of occurrence. If Amar jit Singh, Mal Singh and Teja Singh
had been present at or about the place of occurrence and had actually seen the
occurrence, it is difficult to believe that Ram Asra would have remained
unaware of their presence. According to Amarjit Singh, Mal Singh and Teja
Singh, they saw the occurrence while they were coming from then house. They
were at a distance of about 60 karams from the place of occurrence when they,
heard alarm being raised and on coming nearer they saw the six accused
inflicting injuries upon Ajaib Singh deceased, As against, that, the version of
Ajaib Singh deceased in the dying declaration was that the above mentioned
three witnesses were working in the field nearby when he was assaulted by the
accused. Amarjit Singh, Mal Singh and Teja Singh claimed that they were
proceeding from their house to the well with Tokras and Kahis for the purpose
of consolidating the new channel with earth filling.
If that was the purpose for which they were
going to the well, they would have gone there before and in any case not after
Ajaib Singh deceased so that they might prepare the channel before Ajaib Singh
started operation of the persian wheel at the well. We thus find that not only
the explanation given by Amarjit Singh, Mal Singh and Teja Singh regarding
their arrival at that time is not convincing, there is material discrepancy in
the version of Ajaib Singh deceased in his dying declaration and the testimony
of Amarjit Singh, Mal Singh and Teja Singh PWs regarding the presence of these
witnesses at or about the place of occurrence. On the top of all this we find
that the evidence of Ram Asra, upon which reliance has been placed by the
prosecution shows that Amarjit Singh, Mal Singh and Teja Singh were not there
and had not witnessed the occurrence.
587 The other eye witness, upon whose
testimony reliance has been placed by the prosecution is Ram Asra (PW 14). So
far as this witness is concerned, we find that his presence at the scene of
occurrence was not mentioned by Ajaib Singh deceased in the dying declaration
which was recorded by ASI Harbhajan Singh at Khanna hospital. According to Ram
Asra, he was working with the deceased at the, well when the three accused came
there and assaulted the deceased. If Ram Asra was, in fact, present and working
with Ajaib Singh deceased at the time of the occurrence, it is not clear as to
why the deceased should fail to mention that fact in the dying declaration. The
evidence of Amarjit Singh, Mal Singh and Teja Singh upon which also the
prosecution placed reliance goes to show at Ram Asra had not witnessed the
The name of Rain Asra in the very nature of
things not mentioned in the first information report, because the said report
was based upon the dying declaration of Ajaib Singh.
It would thus appear that the eye witness
upon whose testimony the prosecution wants to sustain the conviction of the
appellants is shown to be an unreliable witness by the other evidence produced
by the prosecution. Ile present is a case wherein one set of prosecution
evidence condemns the other set of evidence produced by the prosecution. In the
above state of affairs, we find it difficult to secure a firm ground upon which
to base the conviction of the accused appellants.
The function of the court in a criminal trial
is to find whether tile person arraigned before it as the accused is guilty of
the offence with which he is charged. For this purpose the court scans the
material on record to find whether there is any reliable and trustworthy
evidence upon the basis of which it is possible to found the conviction of the
accused and to hold that he is guilty of the offence with which Ile is charged.
If in a case the prosecution leads two sets of evidence, each one of which
contradict and strikes at the other and shows it to be unreliable, the result
would necessarily be that the court would be, left with no reliable and
trustworthy evidence upon which the conviction of the accused might be based.
Inevitably, the accused would have the benefit of such a situation.
Mr. Marwah has cited before us the case of
Vadivalu Thevar V. The State of Madras(1) wherein it was laid down that the
court can base the conviction of the accused on a charge of murder upon the
testimony of a single witness if the same was found to be convincing and
reliable. There can, in our opinion, be no dispute with the above proposition,
but that proposition can be of no avail in the, present case. As already
mentioned earlier, the prosecution evidence itself (1)  S.C.R. 981.
588 creates doubt about the veracity of the
testimony of Ram Asra,upon which testimony reliance is now sought to be placed
by Mr. Marwah. Had the testimony of Ram Asra been of a convincing character and
the prosecution evidence had not itself created doubt regarding the correctness
of his testimony, this Court might have sustained the conviction of appellants
upon the testimony of Ram Asra. As the things are, prosecution itself has led
evidence to show that the testimony of Ram Asra is not reliable.
We, therefore, accept the appeal, set aside
the judgment of the High Court and acquit the appellants.
S.C. Appeal allowed.