Jarnail Singh Vs.
State of Punjab  INSC 68 (15 January 2009)
JURISDICTION CRIMINAL APPEAL NO. 62 OF 2009 (Arising out of S.L.P. (Crl.) No.
2872 of 2008) Jarnail Singh .... Appellant Versus State of Punjab ....
present appeal is filed by the appellant being aggrieved by the judgment and
order of the learned Single Judge of the Punjab & Haryana High Court
affirming the judgment and order of the learned Additional Sessions Judge,
Patiala finding the appellant- accused guilty of the offence alleged against
him. The learned Additional Sessions Judge, found the appellant-accused guilty
and convicted him under Section 304 Part II of the Indian Penal Code, 1860 (for
short `IPC') and sentenced him to undergo rigorous imprisonment for eight years.
However, in the
appeal filed by the appellant as against the order of conviction and sentence
the learned Single Judge while maintaining the 2 finding of guilt of the
appellant converted the conviction of the appellant from Section 304 Part II
IPC to offence under Section 304 Part I IPC and sentenced him to undergo
rigorous imprisonment for five years.
order to appreciate the contention raised by the appellant-accused that the
courts below have failed to properly analyse and scrutinise the evidence of the
solitary witness and that the presence of the said solitary witness at the
place of occurrence was not natural and also that his testimony was not free
from embellishment, we are required to mention brief facts as alleged by the
(hereinafter referred to as `deceased') was the younger brother of the
Harjinder Kumar, the complainant, both sons of Jiwa Nath. The deceased was
employed as a driver of a Maruti Van bearing Registration No. PB-01-0353
belonging to Gurdev Singh, resident of village Sular.
Harjinder Kumar was proceeding from village Phagan Majra to meet Mohinder Singh
son of Kartar Singh and at about 6.30 p.m., he reached the bus stop of village
Phagan Majra, where he met Manjit Singh, Sarpanch and Chanan Singh, Member
Panchayat of village Kasiana.
They all then started
to village Phagan Majra. When they reached the point from where a kacha path
takes off to village Kasiana, they found the abovementioned Maruti Van with its
headlight on, lying parked with its 3 windows open at a distance of about 1 =
Killa from the metalled road. On suspicion, they went towards the van and on
reaching there, they found deceased seated on the right rear seat and accused
Jarnail Singh seated on the left rear seat of the van.
Accused was putting
pressure on deceased to take the van by kacha path way to village Kasiana but
the decease was disinclined. An exchange of hot words ensued. Accused dealt two
stab blows with knife, one on the chest and other on right flank of deceased.
The deceased became unconscious and rolled down on the ground through the right
window of the van. On sensing that deceased has succumbed to the injuries,
accused plunged the knife into his chest, in order to commit suicide. The knife
fell down from his grip in the van.
After having arranged
a tractor the deceased and accused were brought to Rajindra Hospital, Patiala.
On reaching the hospital, Harjinder Kumar and others were told by doctor that
deceased had already expired.
Harjinder Kumar and Manjit
Singh left for the Police Station, Sadar Patiala.
When they reached
near the general bus stand, Patiala they came across ASI Karnail Singh
alongwith other police officials at about 10.30 p.m.
Harjinder Kumar made
statement Ex. PD before the ASI who made his endorsement Ex.PD/1 and sent the
same to the Police Station where on its basis formal FIR Ex. PD/2 was recorded.
ASI Karnail Singh alongwith Harjinder Kumar, Manjit Singh and other police
officials went to Rajindra Hospital, Patiala. At that time the dead house was
lying locked. Early in the 4 morning at about 6.30 a.m. Raj Kumar the
attendant came to the dead house and opened the same. The dead body of deceased
was identified by Harjinder Kumar and Manjit Singh. The ASI prepared the
Inquest Report Ex. PA/1 and handed over the dead body alongwith request Ex.
PA/2 to Constable Gurdeep Singh for postmortem examination.
ASI in the company of
Harjinder Singh, Manjit Singh and other police officials went to the scene of
crime, and prepared site plan Ex. PW 11/A showing the place of occurrence. He
seized the knife Ex. P1, which was allegedly stained with blood. The same was
converted into a parcel after preparing its rough sketch Ex. PW 11/B. The knife
was taken into possession vide memo Ex. PW 10/A. Some portion of the rear seat
of the van which was blood stained alongwith its foam was also removed and
turned into a parcel with seal `GS' and taken into possession vide memo Ex
PW.10/E. The van alongwith its Registration Certificate Ex. PW 10/D was also seized
vide memo Ex. PW 10/C. Thereafter ASI came to Rajindra Hospital, Patiala and
took into possession the parcel containing clothes of the deceased. He deputed
some constables including Amar Singh to guard the accused in the hospital. He
went back to the police station on 16.11.1993 and deposited the case property
with seals intact with MHC Bhupinder Singh. He arrested the accused on
9.12.1993. After completion of investigation, the charge-sheet was filed in the
court of learned Chief Judicial Magistrate, Patiala, who vide his order dated
15.03.1994 committed the case to the court of learned Sessions Judge, Patiala
accused was charged u/s 302 IPC as well as u/s 309 IPC.
However, the charge
u/s 309 IPC was deleted subsequently. In order to substantiate its case, the
prosecution examined 12 witnesses in all.
Harjinder Singh who
was the eye witness and complainant was examined as PW7. Manjit Singh,
Sarpanch, the alleged eye witness was also examined as PW6 but he did not
support the prosecution version, not even the presence of PW7 at the time of
Consequently he was
declared hostile. Chanan Singh another alleged eye witness was given up on the
ground that he has been won over by the accused.
the FIR it was stated by PW-7, the alleged eye witness, that the deceased
brother first gave a knife blow in the chest of the accused and thereafter the
accused gave two stab blows with his knife on the person of deceased. The same
set of allegation was made by said PW-7 even before the police during the
course of investigation. However, during the trial he stated that there was an
exchange of hot words between the accused and the deceased consequent to which
the accused gave two stab blows with the knife to the deceased, one of which
fell on the chest whereas the other on the right flank of the deceased. It was
also stated in the evidence by the said PW-7 that on seeing that the deceased
had 6 died the accused attempted to commit suicide by plunging the knife on
the left side of his chest.
the other hand, the accused put forth that he was learning driving from the
deceased, who was his friend. He stated that on the day of the occurrence three
unidentified person hired the van of the deceased and on reaching the spot,
deceased refused to take his van on kacha path and those person picked up a row
with him and they assaulted both the deceased and the accused with the Gatra
Kirpan due to which both of them suffered injuries. He further stated that he
became unconscious on receipt of injury in his stomach and subsequently he was
involved in this case.
learned Additional Sessions Judge, on appreciation of the evidence on record
held that though the injury on the accused could have been self inflicted as
stated by the doctor, but even considering that the same was inflicted in
self-defence, the right of self-defence to the extent of causing the death of
the deceased was not available to the accused.
On noticing and
appreciating the fact that there was allegation of an exchange of hot words and
that the incident occurred at the spur of the moment without any premeditation,
the learned Additional Sessions Judge found the accused guilty and convicted him
under Section 304 7 Part II IPC and sentenced him to undergo rigorous
imprisonment for eight years.
an appeal being filed by the appellant as against the aforesaid order of
conviction and sentence the learned Single Judge heard the parties on merits.
While maintaining the finding of guilt against the appellant the learned Single
Judge, however, convicted the appellant under Section 304 Part I IPC by
altering the same from one under Section 304 Part II IPC. However, taking into
consideration the fact that the accused has become permanently physically
handicapped and his disability is 80% the learned Single Judge reduced the
sentence to five years instead of eight years.
accused filed the present appeal as against the aforesaid orders.
We have heard the
learned counsel appearing for the appellant- accused as also learned counsel
appearing for the State and also scrutinised the evidence on record.
learned counsel appearing for the appellant submitted before us that the
presence of PW-7, the only eye witness supporting the alleged story of the
prosecution, at the spot is too providential to be true. It was also submitted
that although it is alleged that the First Information Report was recorded at
10.30 or 11.00 p.m., but in the inquest report which was drawn at 7.00 a.m. on
the next day, in the place of the F.I.R 8 number no particulars were given and
only a dash was shown and the F.I.R number was inserted at the later point of
time. Relying on the said fact it was submitted that the first information
report was submitted late and belatedly on the next date i.e. on 16.11.1993 at
about 9.00 a.m. He further submitted that the statement of PW-7 is full of
embellishment and contradictions from his previous statement. He drew our
attention to the allegation made in the first information report and to the
statement of said PW-7. He submitted that said PW-7 is neither trustworthy nor
reliable, and therefore, the appellant should have been acquitted instead of
being convicted in the aforesaid manner.
learned counsel appearing for the respondent, on the other hand, submitted that
both the courts below namely the High Court and the learned Additional Sessions
Judge found the appellant guilty of the offence and the said findings and
conclusion reached should not be interfered with.
learned Additional Sessions Judge found the appellant guilty of the offence and
convicted the appellant-accused under Section 304 Part II IPC. The prosecution
did not file any appeal as against the aforesaid order of conviction and
sentence whereas the appellant-accused filed an appeal against his order of
is established fact that the offence of Section 304 Part I IPC is of a higher
degree than that of the offence under Section 304 Part II IPC, as also held in
Ruli Ram v. State of Haryana [(2002) 7 SCC 691, Para 8].
The learned Single
Judge, therefore, was not justified in converting the order of conviction and
altering the same from Section 304 Part II IPC to Section 304 Part I IPC, particularly
when the prosecution did not file any appeal. By virtue of the order passed by
the learned Single Judge the appellant stood convicted of a higher degree of
offence than that of Section 304 Part II IPC, although the learned Single Judge
altered the sentence from eight years to five years. In the case of Abdul Aziz
State of Rajasthan
[(2007) 10 SCC 283] it was held by this Court that if a person is charged under
a grave Section, but however, if acquitted under the said grave section by the
Trial Court, then it would amount to travesty of Justice if in his own appeal
he is convicted under that grave section, without there being any appeal from
the State and without there being prior notice of enhancement issued by the
that as it may, it is necessary now to consider whether the prosecution case as
alleged could be said to be trustworthy and reliable, for which we are required
to refer and analyse the evidence as adduced by the parties.
to the prosecution the incident took place on 15.11.1993 at about 6.30 p.m.
which was an incident happening on an evening of the winter season. The
deceased who was the brother of PW-7 was allegedly driving the van which was
parked at the place of incident with windows open and headlights on, which
meant that it was dark at that point of time. Although it was a winter night
still the windows of the car were kept open, for which according to the
prosecution, PW-7 could see the entire incident. In the first information
report PW-7 stated that initially a knife blow was given by the deceased to the
accused and thereafter the accused gave two knife blows to the deceased, which
resulted in his death and consequently his body came out of the window. The
aforesaid version as stated in the first information report, was however, later
on changed and altered when PW-7 deposed in the court that the accused after
giving two knife blows to the deceased attempted to commit suicide by plunging
the knife in his chest. In support of the said contention reliance was placed
on the evidence of the doctor who has stated during his examination that the
aforesaid injury on the accused could have been self inflicted also. PW-7 is
said to be the eye witness who has allegedly seen the entire occurrence including
the exchange of hot words between the appellant and the deceased in a winter
night and that also when it was totally dark.
11 According to him,
he could see the entire incident in the light of the headlight of the car.
aforesaid statement of PW-7 does not appear to be trustworthy and reliable for
the simple reason that even though the headlight of the car was on, it would be
lighting only the front portion and not the side of the car and may not even
have lighted sufficiently to enable PW 7 to see as to what had happened inside
the car. Although it was a winter night it is not stated nor understood as to
why the windows of the car were kept open. It is also not stated by PW-7 that
he had made any effort to help or render assistance to stop the verbal dual
between the accused and the deceased or took any effective steps to stop the
stabbing on both the persons. PW-7 had further stated that his brother was a
driver of the van and that the incident had happened because he was unwilling
to take the vehicle by the village path. However, in his deposition he has
stated that his brother was seated at the back seat alongwith the deceased. It
is not understood as to why the driver of the vehicle driving the car would
seat in the back seat of the car instead of driving the car from the front
seat. Presence of PW-7 at the spot at that point of time was also providential
and he has been examined only as a chance witness. The other alleged eye
witness namely Chanan Singh, Member Panchayat of village Kasiana was not
examined at all on the 12 ground that he was won over by the accused. Manjit
Singh, Sarpanch who is stated to be the last and third eye witness turned
Therefore, out of the
three eye witnesses' one has become hostile whereas the other was not examined
at all by the prosecution and we have only one eye witness PW-7, who happens to
be the brother of the deceased. If his evidence is discarded there is no other
evidence on the basis of which the accused could be convicted.
It is no doubt true
that conviction could be based on the sole testimony of a solitary eye witness
but in order to be the basis of conviction his presence at the place of
occurrence has to be natural and his testimony should be strong and reliable
and free from any blemish. In Chuhar Singh v. State of Haryana, [(1976) 1 SCC
879] this Court held that what is important is not how many witnesses have been
examined by the prosecution but what is the nature and quality of evidence on
which it relies. The evidence of a single witness may sustain a sentence of
death whereas a host of vulnerable witnesses may fail to support a simple
charge of hurt. Since the case must stand or fall by the evidence of single
witness, it is necessary to examine that evidence critically.
when we scrutinize the evidence of PW-7, in the present case, we do not find
him to be trustworthy and reliable witness for he is changing his version
frequently. He had given one version in the F.I.R 13 which is reiterated
during the course of investigation before the police whereas he had given a
totally different version at the time of his statement before the court. He had
stated in the F.I.R that following the altercation between the deceased and the
accused the deceased first gave a knife blow. When inquest proceedings took
place on the next day at 7.00 a.m. he stuck to the same version and during
investigation also he confirmed the aforesaid allegation made by him whereas in
the trial he stated that the accused first gave two knife blows to the deceased
and then he tried to commit suicide by giving a knife blow to himself. He had
also stated that on receiving those two blows the deceased came through the
window and fell down on the ground. The said version also cannot be believed
for the deceased after receiving the injuries could not have gone out of the
window unless the door was open. The car was allegedly parked with the
headlights on and if that was so, the key of the car was available in the
starting/ignition switch and, therefore, there was no reason why the said car
could not have been driven with the dead body of the deceased and the injured
to the hospital as also to the police station by the said PW-7 and the other
witnesses allegedly with him at that point of time for it has come in evidence
that the other witness knew driving as he was driving the tractor.
prosecution also examined Balbir Singh, PW-8, who stated that he is the owner
and driver of a taxi and on 15.11.1993 Jarnail Singh hired the taxi of Ramtar
in his presence and after that Ramtar never returned.
The deposition of the
said witness is also found to be not worthy of reliance for he did not produce
any registration certificate. On his statement that he was owning a taxi, he
later said that he had sold the taxi. He also stated in his evidence that he is
unable to recollect as to where from he had purchased the taxi or to whom he
had sold his taxi.
He also stated in his
deposition that he was holding a forged driving license. These circumstances
make him totally unreliable.
entire story sought to be put forth by the prosecution and by PW-7 particularly
appears to be doubtful and full of contradictions. It will be unsafe to convict
a person on the basis of such unreliable and untrustworthy evidence
particularly when such statements are full of embellishment and contradictions,
without corroboration in material particulars by reliable testimony, direct or
circumstantial. Consequently, we set aside the order of conviction and sentence
passed against the appellant and give him benefit of doubt. He stands acquitted
of the charges. He shall be set free immediately, unless required in any other
appeal is accordingly allowed.
(Dr. Mukundakam Sharma)
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