1976 Supreme(SC) 293

SUPREME COURT OF INDIA
A.C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.*
Mst. Dalbir Kaur and others, Appellants
Versus
State of Punjab, Respondent.
Criminal Appeals Nos. 232 and 373 of 1975,
D/- 20-8-2976.
Advocates appeared
Mr. Frank Anthony, Sr. Advocate, and Mr. Harjinder Singh, Advocate with him, for Appellants in both Appeals; Mr. O. P. Sharma, Advocate, for Respondent In both Appeals.

Headnote:

Indian Evidence Act - Section 114 – Indian Penal Code - Sections 303 / 34 - Criminal Procedure Code - Section 540 – Constitution of India, 1950 - Article 136 - Imprisonment for life – Appeal against conviction - Whether such injustice has been done in a given case depends on circumstances of case and court do not think one could catalogue exhaustively all possible circumstances in which it can be said that there has been grave and substantial injustice done in any case - Whether judgment of High Court is correct - Whether or not High Court has followed principles enunciated - Decisions of this Court referred to in Judgment of court learned brother lay down that this Court does not interfere with findings of fact unless it is shown that substantial and grave injustice has been done - But whether such injustice has been done in a given case depends on circumstances of case and court do not think one could catalogue exhaustively all possible circumstances in which it can be said that there has been grave and substantial injustice done in any case - In appeals before us findings recorded by trial court and affirmed by High Court do not disclose any such exceptional and special circumstances as would justify claim made on behalf of appellants whose appeals we propose to dismissed that there has been a failure of justice in these cases - Is it open to appellants once special leave is granted to argue on questions of fact at the hearing or is he required to confine his arguments only to the points on which special leave could be granted - Not that these points are not covered by authorities but in spite of a catena of decisions of this Court laying down various principles from time to time over two decades and a half counsel for parties have been insisting upon this Court to go into questions of fact in order to examine whether the judgment of High Court is correct - Court would therefore like to review decisions of this Court on two points mentioned above so as to clarify position and settle controversy once for all – Held, There is no rule of law that if Court acquits certain accused on evidence of a witness finding it to be open to some doubt with regard to them for definite reasons any other accused against whom there is absolute certainty about his complicity in the crime based on remaining credible part of the evidence of that witness should also be acquitted - It will, however call for a closer scrutiny of the evidence and Court must feel assured that it is safe to rely upon the witness for conviction of the remaining accused - Court have the single testimony as it is difficult to rely on the evidence so far as is concerned because she has failed to identify the appellant at the test identification parade - Who is undoubtedly a truthful witness has made no secret of the fact and has frankly admitted in her statement that she did not know from before - In these circumstances therefore evidence cannot be relied upon for the purposes of identification so far as appellant is concerned - As regards court see no distrust her evidence at all but in circumstances the possibility of this witness making an honest mistake in identifying cannot be safely excluded or ruled out. It may be mentioned here that the accused at the time of surrendering gave an application which of Paper Book Part II where he categorically prayed that he should be put at test identification parade for identification by all the eye-witnesses who did not know him from before - In his statement under Section 342 of Code of Criminal Procedure also took the stand that he had never gone to the village before or after the occurrence and that is why he surrendered not so that he might not be got identified by the police to the witnesses - Magistrate passed an order that the accused should be identified at the test identification parade but unfortunately while was asked to identify the appellant at test identification parade was not asked to identify him there - It is true that has stated in her evidence that she knew appellant as being the cousin wife of her husband’s elder brother - He used to come to house off and on - It is therefore clear that herself might have caught only a glimpse of the appellant when he came to meet who admittedly lived in a separate portion of the house and therefore witness could not have known appellant very well - Court feel it unsafe to rely on the single testimony so far as the appellant is concerned – This however does not mean that court casting any reflection on credibility or truthfulness of any of eye-witnesses - Appellant may have been one of assailants but in view of circumstances mentioned a reasonable doubt arises regarding his participation which must be given to him - If evidence is excluded from consideration so far as is concerned then evidence of recovery by itself was not sufficient to connect him with crime particularly when there was no statement wherein he had confessed assaulting deceased and then pointed out to weapon as being the weapon with which he had assaulted deceased - In these circumstances court satisfied that the prosecution has not been able to prove its case against beyond reasonable doubt and High Court was wrong in convicting him – Appeal is allowed