Supreme Court of India
JARNAIL SINGHversusSTATE OF PUNJAB
- Citation
- 2009 INSC 33
- Decided
- 15 January 2009
- Disposal
- Appeal(s) allowed
- Bench
- ALTAMAS KABIR
Holding
The conviction under Section 304 IPC is set aside and the appellant is acquitted.
Summary
Jarnail Singh was convicted by the trial court for causing the death of Ramtar under Section 304 Part II of the IPC and sentenced to eight years' rigorous imprisonment. On appeal, the Punjab & Haryana High Court, although the appeal was filed by the accused and not the State, altered the conviction to the more serious Section 304 Part I and reduced the sentence to five years. The Supreme Court examined the reliability of the sole eye‑witness, PW‑7, whose statements varied between the FIR and trial, and found him and another witness, PW‑8, to be untrustworthy and lacking corroboration. The Court held that an appellate court cannot enhance the offence in an appeal filed by the accused without a State appeal, and that conviction cannot rest on unreliable, contradictory testimony. Consequently, the conviction and sentence were set aside and the appellant was acquitted.
Issues considered
- Whether an appellate court may enhance the conviction from Section 304 Part II to Section 304 Part I when the appeal is filed solely by the accused and no State appeal exists.
- Whether the sole eye‑witness testimony, which is contradictory and uncorroborated, is sufficient to sustain a conviction under Section 304 IPC.
Legislation cited
- Indian Penal Code, 1860s. 302, s. 304(Part I), s. 304(Part II), s. 309
Subjects
conviction enhancementappellate jurisdictioneye‑witness reliabilityIPC 304criminal appealacquittalevidentiary standards
Judgment
[2009] 1 S.C.R. 311
''
-· JARNAIL SINGH
v.
A
STATE OF PUNJAB
(Criminal Appeal No.62 of 2009)
JANUARY 15, 2009
B
[AlTAMAS KABIR AND DR. MUKUNDAKAM
t _..
SHARMA JJ.)
Penal Code, 1860 - s. 304 (Part II) - Death Caused -
Three eye-witnesses - One turned hostile and the other c
declared won-over - Evidence of sole eye-witness not in
conformity with his police statement and FIR version given by
him - Conviction u/s.304 (Part II) by trial court- In appeal by
accused High Court convicting the accused u/s. 304 (Part I)
- On appeal, held: Conviction liable to be set aside - D
Prosecution version is doubtful and full of contradictions -
Testimony of sole eye-witness cannot be relied on if it is full
of embellishment and contradictions without corroboration in
material particulars by reliable testimony direct or
circumstantial - High Court was also not justified in convicting E
the accused of a higher degree of offence by altering the
conviction to s.304 (Part I) from 304 (Part II) in absence of any
State appeal - Administratio·n of Criminal Justice.
CY
Appellant-accused was prosecuted for having
caused death of one person. There were three eye- F
witnesses to the incident. Accused was charged u/s. 302
IPC. During trial PW-6 (eye-witness) turned hostile, while
the other eye-witness was not examined as having been
won over by the accused. PW-7 gave different version of
the incident than those given before police and in FIR. G
'( Trial court convicted the accused u/s.304 (Part II) IPC. In
the appeal of the accused, High Court altered the
conviction to one u/s.304 (Part I). Hence the present
appeal.
311 H
312 SUPREME COURT REPORTS [2009] 1 S.C.R.
A Allowing the appeal, the Court
HELD: 1. High Court was not justified in converting
.-
the order of conviction and altering the same from
Section 304 (Part II) IPC to Section 304 (Part I) IPC,
particularly when the prosecution did not file any appeal.
8
By virtue of the order passed by the High Court, the
appellant stood convicted of a higher degree of offence
than that of Section 304 (Part II) IPC. If a person is ....
charged under a grave Section, but however, it acquitted
C under the said grave Section by the Trial Court, then it
would amount to travesty of Justice if in his own appeal
he is convicted under that grave Section, without th~re
being any appeal from the State and without there being
prior notice of enhancement issued by the appellate
court. [Para 14) [319-D-G]
D
Rufi Ram v. State of Haryana (2002) 7 SCC 691 and
Abdul Aziz v. State of Rajasthan (2007) 10 SCC 283, relied
on
E 2.1. The entire story sought to be put forth by the
prosecution and by PW-7 particularly appears to be
doubtful and full of contradictions. It will be unsafe to
convict a person on the basis of such unreliable and
untrustworthy evidence particularly when such
statements are full of embellishment and contradictions,
F without corroboration in material particulars by reliable
testimony, direct or circumstantial. [Para 20) [323-B-C]
2.2. It is no doubt true that conviction could be based
on the sole testimony of a solitary eye-witness but in
G order to be the basis of conviction his presence at the
place of occurrence has to be natural and his testimony
should be strong and reliable and free from any blemish.
Since the case must stand or fall by the evidence of single
witness, it is necessary to examine that evidence
H critically. In the present case, PW- 7 is not trustworthy and
JARNAIL SINGH v. STATE OF PUNJAB 313
_ _.
reliable witness, for he is changing his version frequently. A
He had given one version in the F.l.R. which is reiterated
during the course of investigation before the police
whereas he had given a totally different version at the
time of his statement before the court. [Paras 17 and 18)
[321-F-H; 322-A-B) B
Chuhar Singh v. State of Haryana (1976) 1 SCC 879
,, ,. relied on
2.3. Evidence of PW-8, who stated that he was the
owner and driver of a taxi and on the relevant date, the c
accused hired the taxi of the deceased in his presence
and after that the deceased never returned, is also found
to be not worthy of reliance, for he did not produce any
registration certificate. On his statement that he was
_,._ owning a taxi, he later said that he had sold the taxi. He D
also stated in his evidence that he is unable to recollect
as to where from he had purchased the taxi or to whom
he had sold his taxi. He also stated in his deposition that
'"'"' he was holding a forged driving license. These
circumstances make him totally unreliable. [Para 19) [322- E
G-H; 323-A]
\. '
· • Case Law Reference:
_..,.
· (2002) 1 sec 691 Relied on Para 14
(2001) 1o sec 283 Relied on Para 14 F
(1976) 1 sec 879 Relied on Para 17
CRIMINAL APPEL LATE JURISDICTION : Criminal Appe,al
No. 62 of 2009.
G
'(
From the final Judgment and Order dated 18.12,2007 of
the High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal SB No.532 of 1996.
R.K. Talwar and Yash Pal Dhingra, for the Appellant. H
314 SUPREME COURT REPORTS [2009] 1 S.C.R.
A Anil Grover, Manish Kumar and Kuldip Singh, for the- ._ __
Respondent.
The Judgment of the Court was delivered by
DR. MUKUNDAKAM SHARMA, J. 1. Leave Granted.
B
2. The present appeal is filed by the appellant being
aggrieved by the judgment and order of the learned Single
.... ~
Judge of the Punjab & Haryana High Court affirming the
. judgment and order of the learned Additional Sessions Judge,
c Patiala finding the appellant- accused guilty of the offence
alleged against him. The learned Additional Sessions Judge,
found the appellant-accused guilty and convicted him under
Section 304 Part II of the Indian Penal Code, 1860 (for short
'IPC') and sentenced him to undergo rigorous imprisonment for
D
eight years. However, in the appeal filed by the appellant as
against the order of conviction and sentence the learned Single
Judge while maintaining the finding of guilt of the appellant
converted the conviction of the appellant from Section 304 Part
,.
..
II IPC to offence under Section 304 Part I IPC and sentenced
him to undergo rigorous imprisonment for five years.
E
•
3. In order to appreciate the contention raised by the
appellant-accused that the courts below have failed to properly
analyse and scrutinise the evidence of the solitary witness and
"1-
that the presence of the said solitary witness at the place of
F occurrence was not natural and also that his testimony was not
free from embellishment, we are required to mention brief facts
as alleged by the prosecution.
4. Ramtar (hereinafter referred to as 'deceased') was the
younger brother of the Harjinder Kumar, the complainant, both
G
sons of Jiwa Nath. The deceased was employed as a driver of
a Maruti Van bearing Registration No. PB-01-0353 belonging
to Gurdev Singh, resident of village Sular.
On 15.11.1993, Harjinder Kumar was proceeding from
H village Phagan Majra to meet Mohinder Singh son of Kartar
JARNAIL SINGH v. STATE OF PUNJAB 315
[DR. MUKUNDAKAM SHARMA, J.]
~ :.- Singh and at about 6.30 p.m., he reached the bus stop of village A
Phagan Majra, where he met Manjit Singh, Sarpanch and
Chanan Singh, Member Panchayat of village Kasiana. They all
then started to village Phagan Majra. When they reached the.
point from where a kacha path takes off to village Kasiana, they
found the abovementioned Maruti Van with its headlight on, lying B
parked with its windows open at a distance of about 1 1/2 Killa
from the metalled road. On suspicion, they went towards the
> ,..
van and on reaching there, they found deceased seated o.n the
right rear seat and accused Jarnail Singh seated on the left rear
seat of the van. c
Accused was putting pressure on deceased to take the
van by kacha path way to village Kasiana but the decease was
disinclined. An exchange of hot words ensued. Accused dealt
two stab blows with knife, one on the chest and other on right
flank of deceased. The deceased became unconscious and D
rolled down on the ground through the right window of the van.
On sensing that deceased has succumbed to the injuries,
accused plunged the knife into his chest, in qrder to commit
suicide. The knife fell down from his grip in the van.
E
After having arranged a tractor the deceased and accused
were brought to Rajindra Hospital, Patiala. On reaching the
hospital, Harjinder Kumar and others were told by doctor that
¥ deceased had already expired. Harjinder Kumar and 'Manjit
Singh left for the Police Station, Sadar Patiala. When they F
reached near the general bus stand, Patiala they came across
ASI Karnail Singh alongwith other police officials at about 10.30
p.m. Harjinder Kumar made statement Ex. PD before the ASI
who made his endorsement Ex.PD/1 and sent the same to the
~ Police Station where on its basis formal FIR Ex. PD/2 was
G
recorded. ASI Karnail Singh alongwith Harjinder Kumar, Manjit
... Singh and other police officials went to Rajindra Hospital,
..._ Patiala. At that time the dead house was lying locked. Early in
the morning at about 6.30 a.m. Raj Kumar the attendant came
to the dead house and opened the same. The dead body of
_i H
316 SUPREME COURT REPORTS [2009] 1 S.C.R.
A deceased was identified by Harjinder Kumar and Manjit Singh.
The ASI prepared the Inquest Report Ex. PA/1 and handed over
the dead body alongwith request Ex. PA/2 to Constable
Gurdeep Singh for ·postmorte~ examination .
..
ASI in the comr:>any of Harjinder Singh, Manjit Singh and
8
other police officials went to the scene of crime, and prepared
site plan Ex. PW 11/A showing the place of occurrence. He
seized the knife Ex. P1, which was allegedly stained with blood.
The same was converted into a parcel after preparing its rough
C sketch Ex. PW 11/B. The knife was taken into possession vide
memo Ex. PW 1O/A. Some portion of the rear seat of the van
which was blood stained alongwith its foam was also removed
and turned into a parcel with seal 'GS' and taken into
possession vide memo Ex PW.1 O/E. The van alongwith its
Registration Certificate Ex. PW 1O/D was also seized vide
D memo Ex. PW 10/C. Thereafter ASI came to Rajindra Hoi;pital,
Patiala and took into possession the parcel containing clothes
of the deceased. He deputed some constables including Amar
Singh to guard the accused in the hospital. He went back to
the police station on 16.11.1993 and deposited the case
E property with seals intact with MHC Bhupinder Singh. He
arrested the accused on 9.12.1993. After completion of
investigation, the charge-sheet was filed in the court of learned
Chief Judicial Magistrate, J:_atiala, who vide his order dated
15.03.1994 committed the case to the court of learned
F Sessions Judge, Patiala for trial.
5. The accused was charged u/s 302 IPC as well as u/s
309 IPC. However, the charge u/s 309 IPC was deleted
subsequently. In order to substantiate its case, the prosecution
G examined 12 witnesses in all. Harjinder Singh who was the eye
witness and complainant was examined as PW7. Manjit Singh,
Sarpanch, the alleged eye ~itness was also examined as PW6
but he did not support the prosecution version, not even the
presence of PW7 at the time of occurrence. Consequently he
H was declared hostile. Chanan Singh another alleged eye
JARNAIL SINGH v. STATE OF PUNJAB 317
,,._ . [DR. MUKUNDAKAM SHARMA, J.]
witness was given up on the ground that he has been won over A
by the accused.
6. In the FIR it was stated by PW-7, the alleged eye
witness, that the deceased brother first gave a knife blow in the
chest of the accused and thereafter the accused gave two stab
B
blows with his knife on the person of deceased. The same set
of allegation was made by said PW-7 even before the police
-# ;
during the course of investigation. However, during the trial he
stated that there was an exchange of hot words between the
accused and the deceased consequent to which the accused
gave two stab blows with the knife to the deceased, one of which
c
fell on the chest whereas the other on the right flank of the
deceased. It was also stated in the evidence by the said PW-
7 that on seeing that the deceased had died the accused
attempted to commit suicide by plunging the knife on the left
side of his chest. D
7. On the other hand, the accused put forth that he was
learning driving from the deceased, who was his friend. He
stated that on the day of the occurrence three unidentified
person hired the van of the deceased and on reaching the spot, E
deceased refused to take his van on kacha path and those
person picked up a row with him and they assaulted both the
deceased and the accused with the Gatra Kirpan due to which
both of them suffered injuries. He further stated that he became
"" unconscious on receipt of injury in his stomach and F
subsequently he was involved in this case.
8. The learned Additional Sessions Judge, on appreciation
of the evidence on record held that though the injury on the
accused could have been self inflicted as stated by the doctor,
but even considering that the same was inflicted in self-defence, G
the right of self-defence to the extent of causing the death of
"'
- the deceased was not available to the accused. On noticing and
appreciating the fact that there 1was allegation of an exchange
of hot words and that the incident occurred at the spur of the
moment without any premeditation, the learned Additional H
318 SUPREME COURT REPORTS [2009] 1 S.C.R.
A Sessions Judge found the accused guilty and convicted him
under Section 304 Part II IPC and sentenced him to undergo
..
rigorous imprisonment for eight years.
9. On an appeal being filed by the appellant as against the
aforesaid order of conviction and sentence the learned Single
B
Judge heard the parties on merits. While maintaining the finding
of guilt against the appellant the learned Single Judge, however,
convicted the appellant under Section 304 Part I IPC by altering .. \,
the same from one under Section 304 Part II IPC. However,
c taking into consideration the fact that the accused has become
permanently physically handicapped and his disability is 80%
the learned Single Judge reduced the sentence to five years
instead of eight years.
10. The accused filed the present appeal as against the
D aforesaid orders. We have heard the learned counsel appearing
for the appellant-accused as also learned counsel appearing
for the State and also scrutinised the evidence on record.
11. The learned counsel appearing for the appellant
submitted before us that the presence of PW-7, the only eye
E
witness supporting the alleged story of the prosecution, at the
spot is too providential to be true. It was also submitted that
although it is alleged that the First Information Report was
recorded at 10.30 or 11.00 p.m., but in the inquest report which
was drawn at 7.00 a.m. on the next day, in the place of the F.1.R "" '
F number no particulars were given and only a dash was shown
and the F.l.R number was inserted at the later point of time.
Relying on the said fact it was submitted that the first information
G
report was submitted late and belatedly on the next date i.e. on
16.11.1993 at about 9.00 a.m. He further submitted that the
statement of PW-7 is full of embellishment and contradictions
from his previous statement. He drew our attention to the
-
H
allegation made in the first information report and to the
statement of said PW-7. He submitted that said PW-7 is neither
been acquitted instead of being convicted in the aforesaid
'
trustworthy nor reliable, and therefore, the appellant should have
"
-
JARNAIL SINGH v. STATE OF PUNJAB 319
[DR. MUKUNDAKAM SHARMA, J.]
manner. A
-. "
12. The learned counsel appearing for the respondent, on
the other hand, submitted that both the courts below namely the
High Court and the learned Additional Sessions Judge found
the appellant guilty of the offence and the said findings and
B
conclusion reached should not be interfered with.
• +
13. The learned Additional Sessions Judge found the
appellant guilty of the offence and convicted the appellant-
accused under Section 304 Part II IPC. The prosecution did not
file any appeal as against the aforesaid order of conviction and c
sentence whereas the appellant-accused filed an appeal·
against his order of conviction.
14. It is established fact that the offence of Section 304
Part I IPC is of a higher degree than that of the offence under D
Section 304 Part II IPC, as also held in Rufi Ram v. State of
Haryana [(2002) 7 SCC 691, Para 8]. The learned Single
Judge, therefore, was not justified in converting the order of
. conviction and altering the same from Section 304 Part II IPC
to Section 304 Part 1 IPC, particularly when the prosecution did
J E
not file any appeal. By virtue of the order passed by the learned
Single Judge the appellant stood convicted of a higher degree
of offence than that of Section 304 Part II IPC, although the
, )<•
learned Single Judge altered the sentence from eight years to
five years. In the case of Abdul Aziz v. State of Rajasthan
[(2007) 10 SCC 283] it was held by this Court that if a person F
is charged under a grave Section, but however, if acquitted
under the said grave section by the Trial Court, then it would
- "(
amount to travesty of Justice if in his own appeal he is convicted
under that grave section, without there being any appeal from
the State and without there being prior notice of enhancement G
issued by the appellate Court.
- 15. Be that as it may, it is necessary now to consider
whether the prosecution case as alleged could be said to be
trustworthy and reliable, for which we are required to refer and H
320 SUPREME COURT REPORTS [2009] 1 S.C.R.
A analyse the evidence as adduced by the parties.
16. According to the prosecution the incident took place
on 15.11.1993 at about 6.30 p.m. which was an incident
happening on an evening of the winter season. The deceased
who was the brother of PW-7 was allegedly driving the van
8
which was parked at the place of incident with windows open
and headlights on, which meant that it was dark at that point of
time. Although it was a winter night still the windows of the car
were kept open, for which according to the prosecution, PW-7
C could see the entire incident. In the first information report PW-
7 stated that initially a knife blow was given by the deceased
to the accused and thereafter the accused gave two knife blows
to the deceased, which resulted in his death and consequently
his body came· out of the window. The aforesaid version as
stated in the first information report, was however, later on
D changed and altered when PW-7 deposed in the court that the
accused after giving two knife blows to the deceased
attempted to commit suicide by plunging the knife in his chest.
In support of the said contention reliance was placed on the
evidence of the doctor who has stated during his examination
E that the aforesaid injury on the accused could have been self
inflicted also. PW-7 is said to be the eye witness who has
allegedly seen the entire occurrence including the exchange of
hot words between the appellant and the deceased in a winter
night and that also when it was totally dark. According to him,
F he could see the entire incident in the light of the headlight of
the car.
17. The aforesaid statement of PW-7 does not appear to
be trustworthy and reliable for the simple reason that even
G though the headlight of the car was on, it would be lighting only
the front portion and not the side of the car and may not even
have lighted sufficiently to enable PW 7 to see as to what had
H
happened in,side the car. Although it was a winter night it is not
stated nor understood as to why the windows of the car were
kept open. It is also not stated by PW-7 that he had made any
-
- JARNAIL SINGH v. STATE OF PUNJAB
[DR. MUKUNDAKAM SHARMA, J.]
321
-1' effort to help or render assistance to stop the verbal dual A
between the accused and the deceased or took any effective
steps to stop the stabbing on both the persons. PW-7 had
further stated that his brother was a driver of the van and that
the incident had happened because he was unwilling to take
the vehicle by the village path. However, in his deposition he B
has stated that his brother was seated at the back seat
alongwith the deceased. It is not understood as to why the driver
• ?-
of the vehicle driving the car would seat in the back seat of the
car instead of driving the car from the front seat. Presence of
PW-7 at the spot at that point of time was also providential and c
he has been examined only as a chance witness. The other
alleged eye witness namely Chanan Singh, Member Panchayat
of village Kasiana was not examined at all on the ground that
he was won over by the accused. Manjit Singh, Sarpanch who
is stated to be the last and third eye witness turned hostile.
D
Therefore, out of the three eye witnesses' one has become
hostile whereas the other was not examined at all by the
prosecution and we have only one eye witness PW-7, who
happens to be the brother of the deceased. If his evidence is
discarded there is no other evidence on the basis of which the
accused could be convicted. E
It is no doubt true that conviction coultl be based on the
sole testimony of a solitary eye witness but in order to be the
basis of conviction his presence at the place of occurrence has
to be natural and his testimony should be strong and reliable F
and free from any blemish. In Chuhar Singh v. State of
Haryana, [(1976) 1 SCC 879] this Court held that what is
important is not how many witnesses have been examined by
the prosecution but what is the nature and quality of evidence
on which it relies. The evidence of a single witness may sustain G
a sentence of death whereas a host of vulnerable witnesses
'( may fail to support a simple charge of hurt. Since the case must
stand or fall by the evidence of single witness, it is necessary
to examine that evidence critically.
H
•
322 SUPREME COURT REPORTS (2009] 1 S.C.R.
A 18. However, when we scrutinize the evidence of PW-7,
in the present case, we do not find him to be trustworthy and
reliable witness for he is changing his version frequently. He had
given one version in the F.l.R which is reiterated during the
course of investigation before the police whereas he had given
B a totally different version at the time of his statement before the
court. He had stated in the F.l.R that following the altercation
between the deceased and the accused the deceased first
-
gave a knife blow. When inquest proceedings took place on + ....
the next day at 7.00 a.m. he stuck to the same version and
c during investigation also he confirmed the aforesaid allegation
made by him whereas in the trial he stated that the accused
first gave two knife blows to the deceased and then he tried to
commit suicide by giving a knife blow to himself. He had also
stated that on receiving those two blows the deceased came
through the window and fell down on the ground. The said
0
version also cannot be believed for the deceased after )--
receiving the injuries could not have gone out of the window
unless the door was open. The car was allegedly parked with
the headlights on and if that was so, the key of the car was
available in the starting/ignition switch and, therefore, there was
E no reason why the said car could not have been driven with the
dead body of the deceased and the injured to the hospital as
also to the police station by the said PW-7 and the other
witnesses allegedly with him at that point of time for it has come
)1
in evidence that the other witness knew driving as he was
F driving the tractor.
19. The prosecution also examined Balbir Singh, PW-8,
who stated that he is the owner and driver of a taxi and on
15.11.1993 Jarnail Singh hired the taxi of Ramtar in his
G presence and after that Ramtar never returned. The deposition
of the said witness is also found to be not worthy of reliance
for he did not produce any registration certificate. On his
statement that he was owning a taxi, he later said that he had
sold the taxi. He also stated in his evidence that he is unable
H to recollect as to where from he had purchased the taxi or to
/
JARNAIL SINGH v. STATE OF PUNJAB • / 323
[DR. MUKUNDAKAM SHARMA, J.] · •.
whom he had sold his taxi. He also stated in hjs deposition that A
he was holding a forged driving license. i:hese circumstances
make him totally unreliable. •
20. The entire story sought to be put forth by the
prosecution and by PW-7 particularly appears to be doubtful
8
and full of contradictions. It will be unsafe to convict a person·
on the basis of such unreliable arid untrustworthy evidence
particularly when such statements are full of embellishment and
contradictions, without corroboration in material particulars by
reliable testimony, direct or circumstantial. ConsequenUy, we set C ..
aside the order of conviction and sentence passed against the ·· ·
appellant and give him benefit of doubt: He stands acquitted
·of the charges. He shall be set free immediat~ly, unless
required in any other matter. ·
· 21.The appeal is accordingly allowed: D
K.K.T. Appeal allowed .
.r
•
.
'.;
•
I
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