IMPORTANT POINT
Where Court finds conviction against appealing accused unsustainable and case of non-appealing accused is on same footing, benefit of decision must be extended to non-appealing accused inspite of fact that he had not challenged conviction judgment which had attained finality.

Headnote:(i) Indian Penal Code, 1860-Section 302-Appellant convicted under with co-accused-Case based on circumstantial evidence-Appellant with co-accused hired taxi and reached hotel, stayed over night in hotel room and next day dead body of driver was recovered from hotel room-P.W.10 proved that both accused had hired taxi-Waiter boy of hotel who had seen last appellant and co-accused leaving hotel and telling that driver was in the room not examined and no explanation -Entry in hotel register not proved to be in hand writing of accused persons-Letter written by appellant to his mother which was treated confessions by Courts, below did not contain any such confession-Gold chain and ring allegedly belonging to deceased and recovered at instance of appellant not proved by cogent evidence that it did belong to deceased and there was no test identification parade-Conviction could not be sustained. (Paras 5 to 10)
       (ii) Indian Penal Code, 1860-Section 302-Constitution of India-Article 136-Two accused persons convicted u/s 302/34 I.P.C.-Appeal by only one and conviction against other attained finality-Conviction against appellant found unsustainable and case of non-appellant accused found also on same footing-Whether benefit of non-sustainability of conviction against appellant could be extended to non-appellant accused? Yes.
       Held : In the instant appeal, the case of non-appealing accused Balwinder Singh, who never moved this Court, stands on a much better footing than the cases of accused persons in the decisions referred to above whose applications for grant of special leave to appeal had been dismissed by this Court. In the case on hand, we have come to the conclusion that prosecution failed to establish its case beyond reasonable doubt against both the accused persons which means that conviction of none of the accused was possible. This Court has repeatedly observed that while hearing appeal of other accused, in case Court comes to the conclusion that no conviction of any accused is possible meaning thereby non-appealing accused as well whose conviction had attained finality, no appeal having been preferred against the High Court judgment, the benefit of that decision must be extended to non-appealing accused in spite of the fact that he has not challenged judgment of the High Court upholding his conviction as this Court has set up a judicious precedent for the purpose of averting miscarriage of justice in similar situations. (Para 16)

ORDER

Heard learned counsel for the parties.

2. The sole appellant along with accused Balwinder Singh @ Binder was convicted by the trial court under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life. On appeal being preferred by the convicted persons, the High Court of Punjab and Haryana has confirmed their conviction and sentence.

3. The prosecution case, in short, is that on 9th July, 1994, the accused persons approached one Satish Kumar (PW 10), incharge of the Golden Taxi Stand, Amritsar for hiring a taxi from that place for going to Bhatinda and they boarded the taxi which was driven by one Shamsher Singh alias Shera and they were having with them an unknown girl. On the next day, i.e., on 10th July, 1994, around 8.00/8.30 a.m., when Mahavir Singh (PW 6), owner of Saharan Hotel situated at Dabwali, came to his hotel, the waiter-Vijay Kumar is said to have told him that on that day at about 1.15 a.m., three customers came to the hotel in a Maruti car and they were allotted room no. 5 and at about 4.30 a.m., two of them went away saying to Vijay that their uncle, i.e., the driver was sleeping inside the room and in case he required anything, the hotel staff should supply him the same and they will be returning after some time but never returned. At about 11.00 or 11.30 a.m., due to failure of power supply, Mahavir Singh (PW 6) asked Vijay Kumar to get the door of room No. 5 opened as it was hot. Vijay Kumar knocked at the door of room No. 5 but nobody responded from inside. Then he again knocked but still there was no answer whereafter Vijay Kumar saw through a hole of the cooler that one person was lying on the double bed. He brought a duplicate key, original of which was taken away by two of the occupants referred to above, opened the door and found the person, lying on the bed in injured condition, dead. On the same day, i.e., on 10th July, 1994 at about 2.55 p.m., Mahavir Singh (PW 6) lodged the first information report against unknown persons.

4. Police after registering the case took up investigation during the course of which certain incriminating materials were recovered from the place of occurrence on the basis of which two accused persons including the appellant were made accused in the case. Upon completion of investigation, the police submitted charge sheet against both the accused persons on receipt whereof the learned magistrate took cognizance and committed the accused persons to the court of Sessions to face trial. During trial, the prosecution examined several witnesses and got exhibited various documents to prove the circumstances against the accused persons as it was not a case of direct evidence and upon conclusion of trial, both the accused persons were convicted by the trial court and their appeal having been dismissed by the High Court as stated above, the present appeal by special leave by one of them.

5. The first circumstance alleged against the accused persons is that they hired a taxi, driven by Shamsher Singh, at the Taxi Stand and boarded the same. The evidence of PW.10, whose testimony has been found to be credible by the courts below, has proved this circumstance and no infirmity could be pointed out therein. But the same alone does not take us anywhere to show complicity of the accused persons with the crime.

6. The other circumstance is that after boarding the taxi, the accused persons had gone to the hotel in question, stayed there during night in a room along with driver of the vehicle, in the early morning both the accused left the hotel asking the waiter Vijay Kumar to take care of their uncle, i.e., the driver who was in the room and they would be returning soon, but never returned and thereafter on opening of the room, the driver was found dead. According to the statement of Mahavir Singh (PW 6), owner of the hotel, the waiter-Vijay Kumar told him that "the three persons, namely, two accused persons and the deceased went to the hotel,

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2003 Supreme(SC) 641

IMPORTANT POINTWhere Court finds conviction against appealing accused unsustainable and case of non-appealing accused is on same footing, benefit of decision must be extended to non-appealing accused inspite of fact that he had not challenged conviction judgment which had attained finality.

Cases Referred (9)

IMPORTANT POINT
Where Court finds conviction against appealing accused unsustainable and case of non-appealing accused is on same footing, benefit of decision must be extended to non-appealing accused inspite of fact that he had not challenged conviction judgment which had attained finality.