2010 Supreme(SC) 23

2010 (1) Supreme 78
SUPREME COURT OF INDIA
Aftab Alam and Dr. B.S. Chauhan, JJ.
Hari Kishan — Appellant
versus
State of Haryana — Respondent
Criminal Appeal Nos. 133-134 of 2009
Decided on : 06-01-2010

Headnote:Indian Penal Code,1860 – Section 302 – Prosecution of appellant along with coaccused persons for causing death of deceased by inflicting injuries on him with lathis and knife – On conclusion of trial, trial court held appellant guilty of killing deceased by giving a knife blow on the left side of his chest and, accordingly,convicted him under section 302 and 324 – Trial court also convicted A1 toA3 under section 323 of Penal Code for causing simple injuries to PW – 2and his uncle – However, trial court disbelieved a substantial part of prosecution story that A4 and A5 were present at the place of occurrence and, accordingly, directed their acquittal – As regards A6, the trial court pointed out that the three incised wounds on the person of the deceased that were attributed to him were, according to the medical evidence, post – mortem in nature, that is to say, those three injuries were inflicted after deceased was already dead – The medical evidence, thus, clearly eliminated the participation ofA6 in the case- He too was, therefore, acquitted – The acquittal of the three accused brought down the number of remaining accused to less than five – Hence, the aid of section 149 was no longer available to bring about the conviction of the remaining three accused under section 302 for the shared common intention with the appellant to kill deceased – Appeals thereagainst – High Court dismissed all three appeals and, upheld the judgments of the trial court in all aspects – Appeals – Substantial part of the prosecution story had been disbelieved and the conviction of the appellant rested solely on the testimony of (PW-2) who did not seem to have particular respect for truth as observed by the trial court – His credibility as an eye witness lay only in that trial court and the High Court assumed that he had received injuries in the same occurrence in which deceased was killed- Said assumption did not appear to be very sound and was not borne out by the evidences on record – In such a situation, held highly unsafe to uphold and sustain appellant’s conviction for the offence of murder – Appellant held entitled to benefit of doubt-Impugned judgments of High Court and trial court set aside and appellant acquitted of the charges under sections 302 & 324. (Paras 29 to 32)

       Facts of the Case :

        Appellant was prosecuted herein in the instant case along with coaccused persons for causing death of deceased by inflicting injuries on him with lathis and knife and for causing injuries to others.On conclusion of trial, trial court held appellant guilty of killing deceased by giving a knife blow on the left side of his chest and, accordingly,convicted him under section 302and 323.Trial court also convicted A1 toA3 under section 323 of Penal Code for causing simple injuries to PW-2and his uncle. However, trial court disbelieved a substantial part of prosecution story that A4 and A5 were present at the place of occurrence and, accordingly, directed their acquittal. As regards A6, the trial court pointed out that the three incised wounds on the person of the deceased that were attributed to him were, according to the medical evidence, post-mortem in nature, that is to say, those three injuries were inflicted after deceased was already dead. The medical evidence, thus, clearly eliminated the participation ofA6 in the case. He too was, therefore, acquitted. The acquittal of the three accused brought down the number of remaining accused to less than five. Hence, the aid of section 149 was no longer available to bring about the conviction of the remaining three accused under section 302 for the shared common intention with the appellant to kill deceased. Appeals thereagainst were dismissed by High Court and, upheld the judgments of the trial court in all aspects.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Substantial part of the prosecution story had been disbelieved and the conviction of the appellant rested solely on the testimony of (PW-2) who did not seem to have particular respect for truth as observed by the trial court. His credibility as an eye witness lay only in that trial court and the High Court assumed that he had received injuries in the same occurrence in which deceased was killed. Said assumption did not appear to be very sound and was not borne out by the evidences on record. In such a situation, held highly unsafe to uphold and sustain appellant’s conviction for the offence of murder. Appellant was held entitled to benefit of doubt.Impugned judgments of High Court and trial court were set aside and appellant was acquitted of the charges under sections 302 & 324.

       Result : Appeal allowed.