IMPORTANT POINT
Culpable homicide not amounting to murder – When prosecution alleges that a particular person has committed offence, it is duty of prosecution to establish identity of accused as the person who has committed offence by adducing evidence.

JUDGMENT

ABHAY S OKA,J Initially, this appeal was preferred by the three accused. Appellant no.1-Hari Singh (accused no.1) is no more. The appeal survives insofar as the appellant no.2-Gopal Singh (accused no.4) and appellant no.3-Avtar Singh (accused no.5)are concerned. PW-1- Soban Singh is the complainant, and the deceased, Gaje Singh, was his brother-in-law. A total of five accused were charge-sheeted for the offences punishable under Sections 302 and 323 read with Section 34 of the Indian Penal Code (for short, ‘the IPC’). The appellants were convicted by the Sessions Court and were sentenced to undergo life imprisonment. The High Court brought down the conviction to Section 304 Part II of the IPC by the impugned judgment.

2. The case of the prosecution is that PW-1, the deceased and the accused were residents of the same village, and there was a prior enmity between them. On 21st November 1997, at around 10:30 p.m., PW-1 was going to the latrine accompanied by the deceased, and when they reached the stand post near the village, stones were thrown at them by the accused, who had sticks and stones in their hands. All of them assaulted PW-1 and the deceased Gaje Singh. One Raghuvir Singh (PW-3) took PW-1 and the deceased to his house. PW-1 had lost consciousness. On the next day, PW-3 and others tried to take the deceased to the hospital, but he died on the way. The prosecution evidence rests on two alleged eye-witnesses, namely, PW-1-Soban Singh and PW-3-Raghuvir Singh. The learned counsel appearing for the respondent-State has also relied upon the depositions of Court Witnesses no.1 to 4.

3. With the assistance of the learned counsel appearing for the parties, we have perused the evidence of PW-1. The first paragraph of his examination-in-chief records that when his evidence was recorded, the present appellants were not present in the court. Though PW-1 deposed ascribing a role to all the accused persons in the assault on the deceased and himself, PW-1 did not identify the present appellants as the accused in the Court as they were not brought to the Court. Therefore, from the evidence of PW-1, the identity of the appellants (appellant nos.2 and 3) as accused was not established. PW-3 is not an eyewitness, and he deposed that after he heard shouts, he ran towards the side from where the shouts were coming, and he saw the accused in the light of the torch which he was carrying. He stated that he recognised the accused in the light of the torch. Even his examination-in-chief records that the present appellants were not present in the Court, and therefore, even PW-3 has not identified the present appellants as accused.

4. Four court witnesses were examined. We have perused their evidence as well. The first Court Witness is Balwant Singh (CW-1), who is not an eyewitness. All that he states is that in the morning of the incident, at around 05:00 a.m., he heard loud voices of the weeping of the villagers and saw marks of injuries on the head of the deceased, and blood was oozing from the injuries. He further stated what was told to him by PW-3 about the accused assaulting the deceased. This part of the evidence is a piece of hearsay evidence. CW-2-Pyuli Devi, who is the wife of PW-1, is also not an eyewitness, and she again deposed based on what PW-1 told her about the assault by the accused. So, this part of her evidence is also a hearsay evidence. As far as CW-3-Fateh Singh is concerned, he did not depose anything about the incident in his examination-in-chief. However, on being questioned by the public prosecutor, he stated that PW-3 brought the deceased to his house at 04-05:00 a.m., where the deceased told him that five persons, namely, Hari Singh, Raje Singh, Kalam Singh, son of Raje Singh and one other boy assaulted him. Apart from the fact that even according to the witness, the deceased did not specifically name the present appellants, we find that his version regarding the deceased disclosing the names of the accused is a