IMPORTANT POINT
Conviction cannot be based on evidence of sole witness which is not reliable, cogent and convincing.

JUDGMENT :

NAVIN SINHA, J.

The two appellants have been convicted under Sections 302, 149 and 148 of the Indian Penal Code (hereinafter referred to as ‘IPC’). Originally there were 13 accused. Only six were charge-sheeted. Two of them were tried by the juvenile court. Seven were summoned under Section 319. The Trial Court convicted three persons. One of them, Ishwar has been acquitted by the High Court.

2. Sri S.R. Singh, learned senior counsel, on behalf of the appellants submits that once the other accused have been acquitted, the two appellants alone cannot be convicted with the aid of Section 149 of the Indian Penal Code. The High Court erred in convicting with the aid of Section 34 in absence of a charge framed under that Section. There is no evidence of any common intention, displaying a prior meeting of minds to commit the assault. PW-1 and PW-8 were not eye witnesses. They reached after the occurrence. Their claim to be eye witnesses is highly improbable from their own evidence. An alternative submission was made that in any event at best it was a case for conviction under Section 304 Part-II I.P.C. Reliance was placed on Dalip Singh vs. State of Punjab, AIR 1953 SC 364 : 1954 SCR 145, and Sakharam Nangare vs. State of Maharashtra, 2012 (9) SCC 249.

3. Learned counsel for the State submitted that PW-1 and PW-8, the eye-witnesses to the occurrence had stated that Appellant no.2 made the fatal assault on the head of the deceased with a lathi while appellant no.1 also assaulted the deceased. The parties resided in the same locality and there is evidence of a street light. Relying on Khem Karan and others vs. State of U.P. and another, 1974 (4) SCC 603, it was submitted that because PW-1 was the sister of the deceased, the credibility of her evidence as an eye-witness to the occurrence cannot be doubted to grant acquittal in the nature of materials available on the records.

4. We have considered the submissions on behalf of the parties and perused the materials on record. The parties resided in the same locality and were known to each other. Animosity existed between them because the son of the second appellant had written love letters to the daughter of PW-1. Earlier an altercation had taken place between the parties on 20.05.1995 leading to a police case being lodged against both sides. There was another incident on 12.06.1995 for which the appellants and the deceased were proceeded with under Sections 107, 151, Cr.P.C. The deceased had been released on bail and was returning from the house of PW-1 on 16.06.1995 at about 9.00 P.M. when the assault is stated to have taken place.

5. PW-8 and PW-1 are husband and wife holding arms licence in their individual names. They are stated to have been accompanied to the place of occurrence by Kamla the sister of PW-8 and one Pali Ram who was also an arms licensee. Surprisingly, the latter two have been given up by the prosecution and have not been examined. All four are stated to have moved away from the place of assault out of fear, as claimed. If three of them were possessed of weapons there has to be an explanation why they did not act in self defence when the assault is alleged by lathis, gandasi and guns. It is also difficult to accept that her husband PW-8 and Palli continued to hide in fear while PW-1 accompanied by her sister-in-law alone shortly returned to the place of occurrence to check on the deceased. An additional fact which is not only improbable but highly unnatural according to normal societal rural customs and mores is that PW-1 accompanied by her sister-in-law alone went to the police station at 3.00 A.M, a kilometer away, to lodge the F.I.R. while her husband and Pali Ram who was staying with them remained at home.

6. In the F.I.R. PW-1 made generalized allegations of assault by all the 13 accused who are stated to have surrounded the deceased. But her court statement was more specific with regard to the nature of assault made by each of the accused. A total of 11 inj