Supreme Court of India
JAGDISH AND ANOTHERversusTHE STATE OF HARYANA
- Citation
- 2019 INSC 864
- Decided
- 6 August 2019
- Disposal
- Appeal(s) allowed
- Bench
- ASHOK BHUSHAN
Holding
The conviction of the appellants cannot be sustained on the doubtful solitary eye‑witness testimony and lack of proof of common intention; they are acquitted.
Summary
Thirteen persons were alleged to have assaulted the deceased in a night-time mob attack, resulting in his death. The trial court convicted three accused, including the two appellants, under Sections 302, 149 and 148 of the IPC, while the High Court acquitted one and upheld the conviction of the two appellants. On appeal, the Supreme Court examined the reliability of the sole eye‑witness (PW‑1), noting pre‑existing animosity between the witness and the accused, inconsistencies in her statements, and the improbability that two appellants armed only with lathis could cause the eleven injuries recorded. The Court also held that conviction under Section 149 requires proof of a common intention, which was absent given the acquittal of the other participants. Consequently, the Court found the evidence insufficient and acquitted the appellants, setting aside the High Court’s order.
Issues considered
- Whether a conviction can be sustained on the testimony of a solitary eye‑witness who is deemed unreliable.
- Whether Sections 149 and 34 of the IPC can be invoked when the other alleged participants have been acquitted and no common intention is proved.
- Whether the injuries inflicted on the deceased could have been caused by the two appellants armed only with lathis.
Legislation cited
- Indian Penal Code, 1860s. 107, s. 148, s. 149, s. 151, s. 302, s. 34
Subjects
solitary eye‑witnessreliability of testimonycommon intentionSection 149 IPCmob assaultacquittalfalse implicationevidentiary value
Judgment
22 [2019]
SUPREME COURT 11 S.C.R. 22
REPORTS [2019] 11 S.C.R.
A JAGDISH AND ANOTHER
v.
THE STATE OF HARYANA
(Criminal Appeal No. 1864 of 2009)
2019)
B AUGUST 06, 2019
2009
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Penal Code, 1860:
ss. 302, 149 and 148 – Involvement of 13 accused in the
C offence including two juveniles – Conviction of three accused by
trial court – High Court acquitted one of the accused while upholding
the conviction of the two accused (appellants) – Appeal to Supreme
Court – Held: In view of the previous animosity between the parties
and the relationship between sole eye-witness (PW1) and the
deceased false implication cannot be ruled out – Susceptibility of
D
number and nature of injuries are improbable in the facts of the
case – High Court has wrongly considered PW-8 to be an eye-
witness – In the FIR the eye-witness (PW1) had made generalized
allegations by all the 13 accused, while in her court statement she
was more specific with regard to nature of assault by each accused
E – While the sole eye-witness (PW1) has been severely doubted while
acquitting other accused, she cannot be relied on in a case of mob
assault by 13 persons at night – Therefore, the appellants-accused
are acquitted.
Witness:
F Solitary eye-witness – Evidentiary value – Held: Conviction
on the basis of solitary eye-witness is sustainable, if there is reliable
evidence cogent and convincing alongwith surrounding
circumstances – Evidence of such witness calls for heightened
scrutiny.
G Allowing the appeal, the Court
HELD: 1. 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 the sister of
PW-8 and one ‘P’ who was also an arms licensee. Surprisingly,
H the latter two have been given up by the prosecution and have
22
JAGDISH AND ANOTHER v. THE STATE OF HARYANA 23
not been examined. All four are stated to have moved away from A
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 ‘P’ continued to hide in fear while PW-1 accompanied
B
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 ‘P’ C
who was staying with them remained at home. [Para 5] [26-E-G]
2. 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. The two D
appellants were armed with lathis by which an incised wound could
not have been caused. In any event, the number of injuries on
the deceased leaves the Court satisfied that it was the result of a
mob assault and not an assault by the two appellants alone. The
susceptibility of eleven injuries, including incised wounds, by two
E
accused is considered highly improbable. [Paras 6, 9]
[26-H; 27-A-C; 28-C]
3. The High Court has committed an error of record by
considering PW-8 to be an eye-witness without any discussion
when his presence at the time of occurrence has been disbelieved
F
by the Trial Court. With regard to PW-1, the Trial Court has itself
observed that her deposition “does not contain the entire truth
and it makes the court to sit up and to find out the kernel out of
the chaff”. This observation assumes significance in view of the
acquittal of the remaining accused by the Trial Court itself,
excluding the juveniles. [Para 7] [27-D] G
4. In the mob assault by 13 persons who had surrounded
the deceased at night, PW-1 was the sole eye-witness. Even if a
light was burning, some of the assaulters undoubtedly must have
had their back to PW-1 making identification improbable if not
impossible. The witness has been severely doubted both by the H
24 SUPREME COURT REPORTS [2019] 11 S.C.R.
A trail court and the High Court to grant acquittal to the other
accused. Conviction on the basis of a solitary eye-witness is
undoubtedly sustainable if there is reliable evidence cogent and
convincing in nature along with surrounding circumstances. The
evidence of a solitary witness will therefore call for heightened
scrutiny. But in the nature of materials available against the
B
appellants on the sole testimony of PW-1 which is common to all
the accused in so far as assault is concerned, it is not safe to
accept her statement as a gospel truth in the facts and
circumstances of the present case. If PW-1 could have gone to
the police station alone with her sister-in-law at an unearthly hour,
C there had to be an explanation why it was delayed by six hours.
Given the harsh realities of our times, it is virtually impossible
that two women folk went to a police station at that hour of the
night unaccompanied by any male. These become crucial in the
background of the pre-existing enmity between the parties
leading to earlier police cases between them also. The possibility
D
of false implication therefore cannot be ruled out completely in
the facts of the case. Therefore, in the entirety of the facts and
circumstances of the case, the relationship between PW-1 and
the deceased, the existence of previous animosity, false
implication cannot be ruled out and it is not safe to uphold the
E conviction of the appellants on the evidence of a doubtful solitary
witness. [Paras 8, 10] [27-E-H; 28-A-B-D]
State of Rajasthan v. Bhola Singh and Anr., AIR 1994
SC 542 ; Lallu Manjhi and another v. State of
Jharkhand, (2003) 2 SCC 401 : [2003] 1 SCR 1 –
F relied on.
Dalip Singh v. State of Punjab, AIR 1953 SC 364 :
[1954] SCR 145 ; Sakharam Nangare v. State of
Maharashtra (2012) 9 SCC 249 : [2012] 7 SCR 1186
; Khem Karan and others v. State of U.P. and another,
G (1974) 4 SCC 603 : [1974] 3 SCR 863 – referred to.
Case Law Reference
[1954] SCR 145 referred to Para 2
[2012] 7 SCR 1186 referred to Para 2
H [1974] 3 SCR 863 referred to Para 3
JAGDISH AND ANOTHER v. THE STATE OF HARYANA 25
AIR 1994 SC 542 relied on Para 10 A
[2003] 1 SCR 1 relied on Para 11
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1864 of 2009
From the Judgment and Order dated 18.07.2008 of the High Court B
of Judicature for Punjab and Haryana at Chandigarh in Cr. Appeal No.
474/1999
S. R. Singh, Sr. Adv., Ram Naresh Yadav, Vikrant Yadav, Krishna
K. Yadav, Aadarsh Kumar Verma, Shivam Sharma, V. Sushant Gupta,
Advs. for the Appellants. C
Deepak Thukral, Dr. Monika Gusain, Advs. for the Respondent.
The Judgment of the Court was delivered by
NAVIN SINHA, J.
D
1. 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. E
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 F
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 G
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 H
26 SUPREME COURT REPORTS [2019] 11 S.C.R.
A 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
B
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
C
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
D 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
E 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
F
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
G 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
H her court statement was more specific with regard to the nature of assault
JAGDISH AND ANOTHER v. THE STATE OF HARYANA 27
[NAVIN SINHA, J.]
made by each of the accused. A total of 11 injuries were found on the A
person of the deceased. The first injury was bone deep in the right parieto
occipital region with damage to brain and pieces of bone in the wound.
There was injury on the neck, lacerated wound over the right shoulder,
lacerated wound over the dorsum of both ring and little fingers causing
fracture, lacerated wound over the right wrist joint over the middle of
B
forearm, on the left side of the chest wall, over the iliac crest, over the
left scapular region with a linear incision due to sharp weapon, over left
deltoid region and lacerated wound over the right knee left ankle and left
forearm. The two appellants were armed with lathis by which an incised
wound could not have been caused. In any event, the number of injuries
on the deceased leaves us satisfied that it was the result of a mob assault C
and not an assault by the two appellants alone.
7. The High Court has committed an error of record by considering
PW-8 to be an eye witness without any discussion when his presence at
the time of occurrence has been disbelieved by the Trial Court. With
regard to PW-1, the Trial Court has itself observed that her deposition D
“does not contain the entire truth and it makes the court to sit up and to
find out the kernel out of the chaff”. This observation assumes significance
in view of the acquittal of the remaining accused by the Trial Court
itself, excluding the juveniles.
E
8. The question that arises to our mind is that in the mob assault
by 13 persons who had surrounded the deceased at night, PW-1 was the
sole eye-witness. Even if a light was burning some of them undoubtedly
must have had their back to PW-1 making identification improbable if
not impossible. The witness has been severely doubted both by the trail
court and the High Court to grant acquittal to the other accused. Can F
the evidence of a solitary doubtful eye witness be sufficient for
conviction? We may have a word of caution here. Conviction on basis
of a solitary eye witness is undoubtedly sustainable if there is reliable
evidence cogent and convincing in nature along with surrounding
circumstances. The evidence of a solitary witness will therefore call for
heightened scrutiny. But in the nature of materials available against the G
appellants on the sole testimony of PW-1 which is common to all the
accused in so far as assault is concerned, we do not consider it safe to
accept her statement as a gospel truth in the facts and circumstances of
the present case. If PW-1 could have gone to the police station alone
with her sister-in-law at an unearthly hour, there had to be an explanation H
28 SUPREME COURT REPORTS [2019] 11 S.C.R.
A why it was delayed by six hours. Given the harsh realities of our times
we find it virtually impossible that two women folk went to a police
station at that hour of the night unaccompanied by any male. These
become crucial in the background of the pre-existing enmity between
the parties leading to earlier police cases between them also. The
possibility of false implication therefore cannot be ruled out completely
B
in the facts of the case.
9. The High Court concluded that the appellants alone were the
assailants of the deceased. Ishwar is also stated to have assaulted with
a lathi capable of causing lacerated wounds. We find it difficult to hold
that the appellants were any differently situated than Ishwar. The
C
susceptibility of eleven injuries, including incised wounds, by two accused
is considered highly improbable.
10. Therefore, in the entirety of the facts and circumstances of
the case, the relationship between PW-1 and the deceased, the existence
of previous animosity, we do not consider it safe and cannot rule out
D
false implication to uphold the conviction of the appellants on the evidence
of a doubtful solitary witness, as observed in State of Rajasthan vs.
Bhola Singh and Anr., AIR 1994 SC 542, (Crl. Appeal No. 65 of 1980
decided on 25.08.1993):
“4. From the above-stated facts, it can be seen that the case is
E
rested entirely on the solitary evidence of P.W.1. The High Court
has pointed out several infirmities in the evidence of P.W.1. It is
well-settled that if the case is rested entirely on the sole evidence
of eye-witness, such testimony should be wholly reliable. In this
case, occurrence admittedly took place in the darkness….”
F
11. In Lallu Manjhi and another vs. State of Jharkhand, (2003)
2 SCC 401, it was observed that if ten persons were stated to have dealt
with blows with their respective weapons on the body of the deceased,
and that if each one of them assaulted then there would have been
minimum of ten injuries on the person of the deceased. In the present
G case, as noticed there are 11 injuries on the person of the deceased.
Giving the benefit of doubt granting acquittal, it was observed as follows:
“13….. The version of the incident given by the sole eyewitness
who is also an interested witness on account of his relationship
with the deceased and being inimically disposed against the
H accused persons is highly exaggerated and not fully corroborated
JAGDISH AND ANOTHER v. THE STATE OF HARYANA 29
[NAVIN SINHA, J.]
by medical evidence. The version of the incident as given in the A
Court is substantially in departure from the earlier version as
contained and available in the first information report. We cannot,
therefore, place reliance on the sole testimony of Mannu (PW 9)
for the purpose of recording the conviction of all the accused
persons.”
B
12. We therefore find the order of the High Court to be
unsustainable and accordingly set it aside. The appellants are acquitted.
They are directed to be released forthwith if they are not required in any
other case. In the event of having been released on bail, their bail bonds
shall stand discharged.
C
13. The appeal is allowed.
Kalpana K. Tripathy Appeal allowed.
D
E
F
G
H
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