IMPORTANT POINT
In a case where some of the accused have not preferred an appeal, or even if their special leave petition is dismissed for default, in case relief of acquittal is granted to the remaining accused, the benefit of such judgments of acquittal is available to non-appealing accused also.

Headnote:Indian Penal Code, 1860-Sections 302, 302/149-Murder of two persons-Enmity between parties-Prosecution case that two deceased and others were returning back from their fields when all the accused persons armed with datars attacked them-Deceased R s head got decapitated and he along with deceased G succumbed to his injuries-PW 4 and PW 5 allegedly suffered injuries-Motive alleged against accused persons was stale and weak since the incident of 1993-Original 10 accused persons were all closely related-No explanation for delay in complaint reaching police station-Injuries suffered by PW 4 and PW 5 were stated by doctor as possible by self infliction-PW 4 and PW 5 being relation witnesses were highly interested witnesses-No conviction of any accused possible based on their testimony-Benefit of doubt to accused-Non appealing accused whose SLP dismissed for default also held entitled to benefit of acquittal.
       Held : Prosecution has projected only PWs 4 and 5 as eye-witnesses to this case. PW-4 in his evidence has stated that on the date of incident he had gone to Dasuya to attend to the criminal case in which he was an accused. That case was adjourned around mid-day thereafter he returned back to the village on that day and later in the evening, along with the deceased, PW-5 and two ladies went to their fields, attended to the agricultural work and was coming back to the village at about 5.30 p.m. when they were attacked by the accused. In his complaint and examination-in-chief, he has given graphic details as to who assaulted whom and on which part of the body. He also accused A-7 to A-9 of raising a Lalkara which part of his case has not been accepted by both the courts below. So also his evidence in regard to A-6 and A-7 has not been accepted by the courts below. He also says that when A-5 tried to inflict injuries on Raghbir Singh he intervened, consequently he received some injuries on his forehead, leg, and arm which were dealt by a datar with its front side. After the incident in question, he with his brother went to Hajipur, lodged a Police complaint and returned to the village with PW-19, and was sent for medical examination at about 11 p.m. The doctor who examined this witness has said that the injuries suffered by him were simple in nature and could have been self-suffered. While in the cross examination it was elicited that many of the important factors mentioned by him in the court were not stated by him when a statement under Section 161 Cr.P.C. was recorded. (Para 12)
       Similar is the evidence of PW-5 who is the son of deceased Raghbir Singh. He in his examination-in-chief practically repeats what PW-4 had to say in his examination in chief. In his case also the injuries were declared to be simple by the doctor, PW-1, who also opined that these injuries could be caused by friendly hands. In his cross examination he has stated that there were other villagers also present on the spot but the Police did not inquire anything from them. According to him, he did not mention anything to the Police at the spot or to the doctor when he was examined and his statement was recorded only on the next day even though he was present when PW-4 s statement was recorded and other proceedings like inquest proceedings took place in the village. He did not tell the Police in his previous statement that PW-4 had received injuries when he intervened in the assault. This witness admits that his father was bleeding profusely when he lay on his (PW-5) body but states that his clothes were not smeared with blood nor his clothes seized by the Police. Bearing in mind the enmity between the two families and non-examination of any independent witness and the serious contradictions in regard to the time of incident, we think it not safe to place reliance on the evidence of this witness without any independent corroboration which is lacking in the case. (Para 13)
       In the above background, having considered the judgments of the two courts below and having independently perused the evidence, we find the courts below have misdirected themselves while coming to the conclusion that the prosecution has proved its case beyond reasonable doubt. In the said view of the matter, these appeals have to be allowed. As noted above, two of the accused persons Sarabjit Singh A-1 and Nirmal Singh A-4 whose conviction is upheld by the High Court based on the very same evidence of the prosecution had filed SLP which was dismissed for default. We find that there is absolutely no difference in the prosecution case about the involvement of the appellants herein and the said accused A-1 and A-4, therefore, we think benefit of the acquittal that is being granted to the appellants herein, has to be extended to those two accused persons also because we have come to the conclusion that on an evaluation of the evidence led by the prosecution in this case, no conviction of any accused is possible. (Paras 17 and 18)

JUDGMENT

Santosh Hegde, J.-Ten accused persons including the appellants in these appeals were chargesheeted for offences punishable under Sections 302, 201, 324, 323, 148 and 149 IPC before the Sessions Judge, Hoshiarpur in Sessions Case No.5/1996 (Sessions Trial No.24 of 1996). The trial court acquitted A-6 to A-9 of all the charges framed against them. It convicted A-1 to A-5 and A-10 for various offences punishable under Section 302 simplicitor, Section 302 read with Sec. 149, 148, 326 read with 149, 324 read with 149, 323 read with 149 and Section 201 IPC. It imposed a sentence of life imprisonment for offences under Sections 302, 302 read with 149 and varying sentences for other lesser offences enumerated hereinabove. An appeal filed by the convicted accused before the High Court of Punjab & Haryana at Chandigarh came to be dismissed.

2. Being aggrieved by the said judgment of the courts below, Mohinder Singh A-5 and Jaswinder Singh A-10 have preferred Criminal Appeal No.794 of 2002 and Jagjit Singh A-2 and Manjit Singh A-3 have preferred Criminal Appeal No.750 of 2002 before this Court. Two other convicted accused, namely, Sarabjit Singh A-1 and Nirmal Singh A-4 had preferred SLPs. against the judgment of the High Court before this Court but the same came to be dismissed for default. Therefore, in the above two appeals before this Court, A-2, A-3, A-5 and A-10 are the appellants before this Court.

3. Brief facts necessary for disposal of the above appeals are as follows:

About 2 years prior to the incident from which these appeals arise, the complainant party in this case had assaulted A-10 Jasvir Singh who is one of the appellants herein, causing serious injuries to him. On a complaint filed by said A-10 against PW-4 and others for offences punishable under Section 326 IPC, a case was pending in a court at Dasuya which is about 40 kms. away from the village where the present incident took place. It is the case of the prosecution that on 11.9.1995 the said criminal case was posted for evidence and PW-4 and some others who were accused in the said case, had gone to Dasuya to attend the court. At that time, A-10 was also present in the court. The court in that case had recorded the evidence of A-10 and adjourned the case. Thereafter, the prosecution alleges that PW-4 and others came back to the village. It is the further case of the prosecution that PW-4 along with Gurdeep Singh and Raghbir Singh (both deceased), Bikram Singh PW-5, Amarjit Kaur (not examined) and Sukhvir Kaur (not examined) went to their field to attend to the agricultural work, and while returning back from their fields at about 5.30 p.m., all the accused persons were waiting for them armed with datars at a place about 1 kila ahead of Dera of Puran Singh A-9, and on a Lalkara (challenge) being raised by Puran Singh and Gurcharan Singh A-7, the other accused persons assaulted Raghbir Singh and Gurdip Singh with their datars, consequent to which Raghbir Singh s head got decapitated, and he along with Gurdip Singh succumbed to his injuries. In the said incident, PWs. 4 and 5 also suffered minor injuries and the two ladies - Amarjit Kaur and Sukhvir Kaur were also assaulted by fists by some of the accused persons.

4. The prosecution alleges that after the accused persons left the place of incident, PW-4 along with his brother Chanan Singh proceeded to Hajipur by foot which, according to them, is about 6-7 kms. from the place of incident where the jurisdictional Police Station was stationed. On nearing Hajipur at a T-point on Mukerian Dasuya road, they met Jagdish Mitter PW-19, the I.O. in this case who was there on a special bandobust duty and told him about the incident in question. Said PW-19 recorded the statement of PW-4 and sent the same to Hajipur Police Station which was about 2 kms. from the place where he was on a bandobust duty. Thereafter, PW-19 along with other Police officials and PW-4 came to the place of incident, conducted the inquest Panchnama and

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2003 Supreme(SC) 885

IMPORTANT POINT In a case where some of the accused have not preferred an appeal, or even if their special leave petition is dismissed for default, in case relief of acquittal is granted to the remaining accused, the benefit of such judgments of acquittal is available to non-appealing accused also.

Cases Referred (5)

IMPORTANT POINT
In a case where some of the accused have not preferred an appeal, or even if their special leave petition is dismissed for default, in case relief of acquittal is granted to the remaining accused, the benefit of such judgments of acquittal is available to non-appealing accused also.