Challenge against the judgment of the Hon’ble High Court of Haryana confirming the conviction under sections 302 & 307 IPC
1. The instant appeal has been preferred on behalf of the appellant for assailing the judgment dated 28th February, 2008 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 662-DB of 2003, whereby the appeal preferred by the appellant was dismissed, thereby affirming the judgment and order dated 26th July, 2003 rendered by the learned Additional Sessions Judge (Adhoc), Hoshiarpur, vide which the appellant was convicted and sentenced as below:-
(i). Under Section 302 of the Indian Penal Code (hereinafter being referred to as ‘IPC’) – Imprisonment for life and to pay a fine of Rs.2,000/-, in default of payment of fine, to undergo further rigorous imprisonment for a period of one month.
(ii). Under Section 307 IPC – Rigorous imprisonment for a period of five years and a fine of Rs.1,000/-, in default of payment of fine, to undergo further rigorous imprisonment for a period of 15 days.
Accused was arrested and a charge sheet was filed after two Investigating Officers filed a closure report
8. Be that as it may, two different police officials, conducted the investigation and filed closure reports alleging that the first informant-Sharan Kaur(PW-5) had falsely implicated the accused. However, the Magistrate did not agree with the opinion. The accused appellant-Kirpal Singh @ Lucky was arrested on 21st November, 1997 and charge sheet was filed against him for the offences punishable under Section 302 IPC and Section 307 IPC. Since both the offences were exclusively triable by the Court of Sessions, the case was committed to the Court of Additional Sessions Judge(Adhoc), Hoshiarpur (hereinafter being referred to as ‘trial Court’) for trial.
Application filed and allowed under section 319 crpc by adding an additional accused and fresh charge under section 34 IPC was framed
9. Learned trial Court framed charges against the accused appellant, who abjured his guilt and claimed trial. An application came to be filed by the prosecution under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter being referred to as ‘CrPC’) which was allowed and the accused Kulwinder Singh was summoned to face trial along with the charge sheeted accused, i.e., the appellant herein. Fresh charge for the offences punishable under Sections 302, 307 read with Section 34 IPC were framed against both the accused to which they pleaded not guilty and claimed trial. The prosecution examined ten witnesses to support its case.
Trial court convicted the appellant and acquitted the additional accused but complainant preferred an appeal before the Hon’ble High Court
10. The incriminating circumstances appearing in the prosecution evidence were put to the accused while recording their statements under Section 313 CrPC. The accused denied those allegations and claimed to be innocent. Total four (04) witnesses were examined in defence. After hearing the 8 arguments advanced by the learned Additional Public Prosecutor and the defence counsel, and upon appreciating the evidence available on record, the learned trial Court vide judgment dated 26th July, 2003 proceeded to convict the accused appellant-Kirpal Singh and sentenced him as noted hereinabove. However, by the very same judgment, the co accused Kulwinder Singh was acquitted of the charges. The accused appellant-Kirpal Singh preferred Criminal Appeal No.662-DB of 2003 challenging his conviction and sentence, whereas the State preferred Criminal Appeal No.535-DBA of 2004 and the complainant preferred Criminal Revision No.2259-DB of 2003 challenging the acquittal of Kulwinder Singh before the High Court of Punjab and Haryana.
Both the appeals were dismissed by the Hon’ble High Court
11. The learned Division Bench of the High Court of Punjab and Haryana proceeded to dismiss both the appeals, one filed by the State, and the other by the accused-appellant as well as the revision filed by the complainant by a common judgment and order dated 28.02.2008, which is assailed in this appeal filed at the instance of the accused appellant-Kirpal Singh.
Consideration of evidence and submissions
Accused climbed into the chaubara which has no gate through a ladder and caused fatal injuries on the deceased who was sleeping in the open space
16. The prosecution case as unfolded, in the evidence of the first informant, Sharan Kaur (PW-5) (the star prosecution witness who herself received an injury in the same incident), is that she along with her two sons Daljit Singh @ Goldy (PW-6) and Gurmit Singh was sleeping in the room on the ground floor of the house, whereas, her husband[Balwinder Singh(deceased)] was sleeping in chaubara, which has no gate. The prosecution tried to canvass that the accused put up a ladder on the wall of the house, climbed into the chaubara with the aid thereof and hit Balwinder Singh(deceased) with a spade, which resulted into grave injuries. The motive for the incident, as is projected in the evidence of Sharan Kaur (PW.5), was that the accused was bearing a jealousy on account of flourishing halwai business of her husband whereas, the business of the accused was not thriving. However, we may state that other than this bald averment made by Sharan Kaur (PW-5) attributing motive for the incident to the accused, no corroborative material was collected by the Investigating Officers to lend credence to this theory of motive. The statement of Sharan Kaur (PW-5) on this aspect is also very vague. There is nothing in her deposition, which can satisfy the Court that merely on account of this so called jealousy, the accused would go to the painstaking length of putting up a ladder against the wall of the house, where Balwinder Singh (deceased) used to reside with his family and then climb up and murder him, that too in the presence of his family members.
There is no necessity to take risks to expose themselves to other family members
17. If the prosecution case is to be accepted, it is apparent that the accused had painstakingly, planned out the murder of Balwinder Singh (deceased), inasmuch as they put up a ladder against the outer wall of the house, climbed into the house by using the said ladder and attacked the deceased by spade. Thus, the moment Balwinder Singh (deceased) had been belaboured, the purpose of the accused was served and hence, there was no rhyme or reason as to why the accused would take the risk of being exposed to the other family members. This precisely is the story portrayed in the evidence of Sharan Kaur (PW-5) who stated that while she was sleeping in the room on the ground floor with her two sons, she heard some noise and opened the door of the flight of stairs connecting the chaubara and saw the accused appellant-Kirpal Singh and his companion standing therein. The accused appellant-Kirpal Singh who was armed with a knife, stabbed her on the abdomen whereas the other accused appellant caught her by the arm. As per the prosecution, the accused appellant had assaulted Balwinder Singh (deceased) with a spade which was abandoned at the spot and then the accused came down with a knife.
Conduct of Sharan Kaur P.W.5 is doubtful
19. In her examination in chief, the first informant-Sharan Kaur(PW-5) categorically stated that her statement was 18 recorded at the Civil Hospital, Dasuya on 13th November, 1997 at about 7:30 a.m. It was read over and explained to her, and she signed it admitting it to be correct.
20. If that be so, the subsequent conduct of Sharan Kaur (PW-5) in raising a hue and cry that investigation being conducted was tainted and the police had intentionally favoured the co-accused Kulwinder Singh by leaving out his name from the array of offenders creates a great doubt on her credibility.
Placing reliance on Vadivelu thevar’s case
26. This Court in the celebrated case of Vadivelu Thevar v. State of Madras [AIR 1957 SC 614], has observed as follows:-
“11.…Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way – it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial…”.
Both the prosecution witnesses are wholly unreliable
27. On going through the evidence of Sharan Kaur (PW-5) and Daljit Singh (PW-6), with reference to other evidence available on record, we are of the firm opinion that both these witnesses fall in the second category, i.e., wholly unreliable. No other tangible evidence was led by the prosecution to connect the accused appellant with the crime.
Motive is very weak in the present case
28. As we have noted above, the prosecution’s story of motive is very weak and rather far fetched so as to place implicit reliance thereupon. Two investigating officers conducted thorough investigation and found the entire case set up by the first informant-Sharan Kaur(PW-5) to be false. The conduct of the first informant is unworthy of reliance, when we consider the fact that she tried to implicate Kulwinder Singh by filing various petitions while the investigation was still ongoing and even in her testimony during the trial. However, even in the FIR (Exhibit-PG/2), which was admittedly registered on the basis of her own statement, the first informant-Sharan Kaur(PW-5) did not name the said Kulwinder Singh, as co[1]assailant with the accused appellant herein. Even in the petition i.e. Crl. Misc. Petition No. 2053-M-1998 filed before the High Court of Punjab and Haryana, the name of the said Kulwinder Singh was not mentioned.
Weapon used for the crime was not recovered
29. The spade allegedly used to assault the deceased was found lying at the crime scene. On going through the entire set of prosecution witnesses, we find that no weapon of crime was recovered at the instance of the accused appellant and thus, there is no corroborative evidence so as to lend credence to the wavering and unreliable testimony of Sharan Kaur (PW-5) and Daljit Singh (PW-6).
Appellant acquitted
32. Consequently, the appellant deserves to be acquitted by giving him the benefit of doubt. Resultantly, the judgments of the trial Court and the High Court dated 26th July, 2003 and 28th February, 2008 respectively are hereby quashed and set aside. The appellant is acquitted of the charges. The sentence awarded to the appellant was directed to be suspended by this Court on 12th August, 2011, during the pendency of this appeal and he is on bail. He need not surrender and the bail bonds are discharged.
33. The appeal is accordingly, allowed.
Party
KIRPAL SINGH …APPELLANT(S) VERSUS STATE OF PUNJAB …RESPONDENT(S) – CRIMINAL APPEAL NO(S). 1052 OF 2009 – 2024 INSC 312 – April 18, 2024
https://main.sci.gov.in/supremecourt/2008/18259/18259_2008_3_1501_52288_Judgement_18-Apr-2024.pdf
