2001 Supreme(SC) 434

2001(2) Supreme 405
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
U.C. Banerjee and Shivaraj V. Patil, JJ.
Sohan & Anr. -Appellants
versus
State of Haryana & Anr. -Respondents
Criminal Appeal No. 247 of 1991
With
Criminal Appeal No. 731 of 1991
Decided on 2-3-2001
Counsel for the Parties :
For the Appearing Parties : Sushil Kumar, Jaspal Singh, Sr. Advocates, Ms. Gauri K. Das, Ms. Gitanjali Malviya, Ravi Wadhwa, Ms. Rani Jethmalani, R.C. Kohli, Maninder Singh, A. Mariarputham, Ms. Aruna Mathur, Neeraj Kumar Jain, Mahabir Singh, Irfan Ahmed, Advocates.

IMPORTANT POINT
When the approach of the Court is one sided and conviction is based on the evidence of an eye witness who is not only interested but also inimical to the accused and does not inspire confidence and is not supported by corroboration of available evidence, the conviction is not supportable in law.

Headnote:Indian Penal Code, 1860-Sections 148, 302 r/w 149-Conviction of Appellants under by Sessions Court upheld by High Court-Appeal against-Conviction based as an eye-witness who was not only an interested witness but also inimical to accused-Other eye witness available but not examined-Evidence not inspiring confidence-No corroboration-Perversity in its appreciation-High Court not relying on recoveries believing interested eye witness-Not proper-Result-Conviction cannot be sustained-Acquittal on benefit of doubt-Appeal allowed.

       Held : It is unfortunate that the approach and appreciation adopted by the Sessions Court was manifestly erroneous and contrary to the well-settled principles of law. It may be said that the approach of the learned Sessions Judge has been one-sided. Lapses, omissions and contradictions in the prosecution case were either condoned or lightly brushed aside or were supported without any justification against the probabilities appearing in the case which is clearly demonstrated hereinbelow. (Para 9)

       The learned Sessions Judge says that the delay in F.I.R. is never vital per se when the evidence otherwise inspires confidence. It is strange as to how such evidence of PW-7 alone without any corroboration could be said to inspire confidence. (Para 15)

       The learned Sessions Judge did not appreciate the evidence objectively. He failed to see that all the male members of the two families of the accused were involved because of enmity on account of land dispute. The evidence of PW-7, the sole eye-witness without any corroboration ought to have been scrutinized with great caution who has given the graphic details as to the injuries caused by each accused when he himself was frightened and was running away. (Para 17)

       The trial Court partly believed the recovery of weapons and clothes but the High Court totally disbelieved the recovery. This was also strong circumstance against the prosecution. (Para 18)

       It is equally unfortunate that the High Court did not seriously and objectively re-appreciate the evidence placed on record as the first appellate court, but has simply appended its seal of approval to the judgment of the Sessions Court. (Para 22)

       The High Court has disbelieved the recovery of the clothes and weapons of the offences. With all this, the High Court affirms the judgment of conviction of the Sessions Court acting on the evidence of PW-7 alone. We may add that the prosecution case entirely rested on the sole evidence of PW-7, who was not only interested being the cousin of the deceased and was inimical too to the accused in view of the civil litigation referred to above. It was unsafe to act on his evidence without any corroboration. Although there were material witnesses available to corroborate, their non-examination or withholding their evidence was a serious lacuna in the prosecution case. Non-examination of another eye-witness, Sumer, whose name was mentioned in the FIR and who had witnessed the occurrence according to PW-7, was also fatal. (Paras 27 and 28)

       The credibility of PW-7 and truthfulness of his evidence in the circumstances needed to be scrutinized with great care and caution. His evidence does not inspire confidence for the reasons that (a) though he was a party to the civil suit as a defendant along with deceased Daya Nand, he falsely stated that it was deceased Daya Nand who filed the suit, when as a matter of fact it was the accused No. 1 Sohan, who had filed the suit. (b) He had made a wrong statement as to the possession of the disputed land but he was forced to admit the possession of accused Sohan in the cross-examination. (c) He stated, "When the Draftsman came to the spot I was not there". PW-6, the draftsman clearly stated in his evidence that he prepared the site plan Exh. PN on the pointing out of PW-7 and Sumer (not examined by the prosecution). (d) He stated, "We had picked up Daya Nand from the spot on our hands. Our clothes had got blood stained in this process". He further stated, "I had not shown my blood stained clothes to the police. I had changed my clothes before leaving for Bhiwani." In the light of what is stated above, after deeper consideration, detailed examination of evidence and probabilities of the case, in the light of the arguments advanced by the learned counsel on either side, we have no hesitation in holding that the Sessions Court as well as the High Court have concurrently and manifestly erred in convicting and sentencing the accused. In a case like this it is our duty to interfere with the impugned judgment and order to do substantial justice. Under these circumstances and in view of the discussion made above, we have no hesitation in holding that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. Hence we set aside the judgment and order of the Sessions Court as affirmed by the High Court. Accordingly, these appeals are allowed and the accused are acquitted and their bail bonds shall stand discharged. (Paras 29, 30 and 31)