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1996(1) Supreme 1
SUPREME COURT OF INDIA
M.K. Mukherjee and B.N. Kirpal, JJ.
Jarnail Singh -Appellant
versus
State of Punjab -Respondent
Criminal Appeal No. 165 of 1983
Decided on 23.11.1995
Held : 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-witnesses examined by the prosecution was totally false and absolutely unreliable. (Para 7)
(ii) Criminal Trial-Burden of proving the guilt of accused is on prosecution-But if prosecution has proved it by its own evidence then defence evidence can be used to support it. Â Â (Para 8)
(iii) Indian Penal Code, 1860-Section 302 read with Section 34 or 307-Nature of offence-Whether murder or attempt to murder. (The later)
Held : In the context of the evidence of P.Ws. 4 and 6 that the appellant had fired on the back of the deceased Sukhdev Singh, the appellant can therefore, be said to have caused injuries Nos. 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 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 his murder. The last contention of Mr. Lalit, therefore, must be accepted. Â (Para 10)
Held thus : On the conclusions as above, we allow this appeal in part, set aside 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. Â Â (Para 11)
Key Points: - The trial court acquitted three accused by giving them the benefit of doubt, not by finding the prosecution's eye-witness evidence to be totally false and unreliable. Therefore, the same evidence could still be used to convict the appellant. (!) - In a criminal case, the burden of proving guilt beyond reasonable doubt always rests on the prosecution. However, once the prosecution has discharged this burden with its own evidence, the court can use defence evidence to lend assurance to its conclusions. (!) - The appellant was convicted under Section 302 IPC for the murder of Sukhdev Singh. As Sukhwinder Singh, who fired the fatal shot, was acquitted, Section 34 IPC did not apply. The appellant's act (causing injuries No. 2 and 3) did not, by itself, cause death, so he could not be convicted under Section 302 IPC but was liable under Section 307 IPC for attempt to murder. (!)
JUDGMENT
M.K. Mukherjee, J.-The appellant along with four others, including his father, brother and nephew, was tried by the learned Additional 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 for one year, while acquitting the other three. In appeal, preferred by the two convicts, the High Court affirmed the conviction and sentence of the appellant but acquitted Sukhwinder Singh. Hence this appeal by the appellant after obtaining special leave.
2. 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 behak (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 (PW 4) and Manohar Singh (PW 6) which led to an exchange of hot words and abuses between the parties. Thereafter Gurmej Singh and Sukhwinder Singh left for their behak and the two deceased and their brothers for their village Khatra Khurt. On their way to the village when the latter group had reached the janj ghar (place for marriage parties) the five accused along with one Joginder Singh (since absconding) accosted them. Except Gurmej Singh, who was unarmed, all had rifles in their hands. Gurmej Singh raised a lalkara saying that they should be taught a lesson for stopping them from preparing the path to their behak 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.
3. 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 Information Report. S.I. 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 postmortem 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 S.I. Janak Raj submitted charge sheet and in due course the case was committed to the Court of Session.
4. The accused persons pleaded not guilty to the charges levelled against them and contended that they had been falsely implicated.
5. To prove its case prosecution examined twelve witnesses of whom Dhanwant Singh (PW 4) and Manohar Singh (PW 6), 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.
6. From the judgments of the learned Courts below it appears that the trial Court found the evidence of PW 4 and PW 6 suspect as against accused Harpal Singh and Jaswinder Singh on the ground that as they were not residents of the village to which the deceased and the other accused belonged i
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