Holding

The High Court was correct in acquitting the accused as the prosecution failed to prove the genesis of the crime and the evidence, including the extra‑judicial confession and weapon recovery, was unreliable; a Section 313 statement cannot be the sole basis of conviction.

Summary

The case concerned the murder of Ravinder Singh, alleged to have been committed by Prem Singh and Deepinder Singh in a dispute over land. The trial court convicted both under Section 302 IPC, relying on eyewitness testimony, an extra‑judicial confession and alleged weapon recoveries. The High Court acquitted them, finding the eyewitness accounts unreliable, the confession fabricated, and the weapon recovery untrustworthy, also noting tampering of hospital records and delay in filing the FIR. On appeal, the Supreme Court examined whether a statement under Section 313 CrPC could alone sustain a conviction and whether the prosecution had proved a common intention under Section 34 IPC. The Court held that the prosecution failed to establish the genesis of the crime and that a Section 313 statement cannot be the sole basis for conviction. Consequently, the Court affirmed the High Court’s acquittal of both accused.

Issues considered

Did the prosecution establish the genesis of the crime and common intention under Section 34 of the IPC?
Can the extra‑judicial confession and recovered weapons be admitted as reliable evidence?
Is a statement made under Section 313 of the CrPC sufficient as the sole basis for conviction?
Do the delay in filing the FIR and alleged tampering of hospital records affect the credibility of the prosecution's case?
Did the accused exceed the right of private defence under Section 304 of the IPC?

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302, s. 304, s. 324, s. 34

Subjects

murderSection 302 IPCSection 34 IPCSection 313 CrPCextra‑judicial confessioneyewitness reliabilityacquittalprivate defenceevidence tampering

Judgment

MOHAN SINGH A
V.

PREM SINGH AND ANR.

- I OCTOBER I, 2002

[U.C. BANERJEE AND D.M DHARMADHIKARI, JJ.] B

Penal Code, 1860-Section 302 read with Section 34-Murder-
Conviction-According to the prosecution accused allegedly causing death of
a person-Motive being a pending civil /itigation-Tr.ial Court relying on C
evidence and extra-judicial confession convicting accused-High Court
rejecting the version of eyewitness, evidence of extra-judicial confession and
recoveries of weapons as untrustworthy, acquitting the accused-On appeal
held prosecution having failed to prove the genesis of the crime and the
nature of incident, High Court justified in acquitting the accused
D
Code of Criminal Procedure, 1973-Section 313:

Statement ofaccused-Acceptance of incu/patory portion-Ifexculpatory
part ofstatement is false and evidence led by prosecution is reliable, inculpatory
part of statement can be taken aid of to lend assurance to evidence of
prosecution-If prosecution evidence does not inspire confidence to sustain E
conviction of accused, inculpatory part of statement cannot be made the sole
basis <'f conviction.

Statement of accused-Can be used for appreciating evidence led by
prosecution to accept or reject it-However, not being a substantive piece of
evidence cannot be a substitute for the evidence of the prosecution. F
According to the prosecution respondent No. I and respondent No
2 inflicted injuries on the appellant's son and caused his death. It is alleged
that the motive of the crime was a pending litigation between appellant
~ ) and father of respondent No. I regarding possession of a piece of land.
When the appellant's son along with his father and PW 7 was returning G
from field, respondent No. I and respondent No. 2 armed with weapons
way-laid the appellant's son. Respondent No .. J allegedly gave a blow to
deceased which the latter warded off and tried to escape but stumbled
down after covering some paces and fell on the heap of earth lying in the
5 H
6 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A courtyard of the house of one A. Respondernt No. 1 inflicted blow on the
neck of appellant's son while respondent No . 2 inflicted blow on the knee.
Alarm was raised whereupon respondents ran away. Appellant's son was
taken to the hospital whereupon doctor decla1red him dead. FIR was lodged
I -
and was conveyed to the Magistrate the next day. Investigation was carried
B out. Two days after the incident the respondents made extra judicial
confession to the Lambardar of the village and a week later they were
produced before the AS! who arrested them . Weapons were recovered on
the dis~losure statement made by the respondents. Respondent No. 2
pleaded that he had been falsely implicated and respondent No. 1 denied
having attacked or caused any injuries to the appellant's son. Trial Court
C relying on eyewitnesses' account and extra judicial confession convicted
respondent No. 1 under section 302 and respondent No. 2 under section
302 read with section 34 IPC. High Court reversed the judgment of the
trial Court and acquitted the accused. Hence the present appeals.

Respondent No. 2 contended that there was neither motive nor
D evidence against him for his conviction with the aid of Section 34 IPC;
that he has been attributed to have caused one skin deep injury, not on
any vital part of the body of.the deceased; that as the evidence of extra-
judicial confession and recovery of weapons was rightly rejected by High
Court, there was no other evidence to hold that respondent No. 2 had
E com.mon intention with respondent No. I to commit murder and that
respondent No. 2 has rightly been acquitted by the High Court on
justifiable reasons.

Dismissing the appeals, thP. Court

HELD: 1.1. High Court committed no error in acquitting both the
F
accused and the conclusion of High Court that the prosecution has failed
to prove the genesis of the crime and the nature of the incident is concurred
with. The version of the alleged eyewitnesses, the evidence of extra-judicial
confession and recoveries of weapon have h1:cn found to be untrustworthy.
' 117-EI
G
1.2. The evidence of alleged eyewitnesses that at about 8'0 clock in
the night, they were following the deceased on way to the village does not
inspire confidence siitce they did not intervene in the attack or rushed to
the vi.llage for help, which itself is very unnatural and has rightly been
found unreliable. The entry in the register of OPD of the hospital, was
H · found tampered which supports the defence case that in order to prove
MOHAN SINGH v. PREM SINGH 7
the presence of eyewitnesses, interpolations were made in the hospital A
records. The delay in recording of FIR was explained on lame excuses
which clearly indicates that there was no prompt lodging of the report of
the incident by the witnesses, hence their presence at alleged date and time
of incident is highly doubtful. 115-D-GI

1.3. The prosecution is guilty of fabricating false evidence of extra B
judicial confession and recovery.of th.e weapons used by respondents.
Respondent No.2 was falsely implicated. He had no motive to committing
murder of the deceased. He is alleged to have caused one simple injury to
the deceased. There is no evidence why he should join the co-accused in
opening a brutal attack on the deceased. The defence plea taken by him C
that he was falsely implicated because of some pending civil dispute with
PW7 concerning use of a path, appears to be plausible. 115-G, H; 16-Al
• I
2.1. The statement made in defence by accused under Section 313
Cr.P.C. can certainly be taken aid of to lend credence to the evidence led
by the prosecution, but only a part of such statement under Section 313 D
· Cr.P.C. cannot be made the sole basis of his conviction. The law is settled
that statement under Sect:on 313 Cr.P.C. can"either be relied in whole or
in part. It may also be possible to rely on the inculpatory part of his
statement if the excu.lpatory part is found to be false on the basis of the
evidence led by the prosecution. If the exculpatory part of his statement
is found to be false and the evidence led by the pro·secution is reliable, the E
inculpatory part of his statement can be taken aid of to lend assurance to
the evidence of the prosecution. If the prosecution evidence does not inspire
confidence to sustain the conviction of the accused, the inculpatory part
of his statement under Section 313 Cr.P.C. cannot be made the sole basis
of his conviction. 116-F, G; 17·H; 18-A, Bl F
2.2. In the instant case, the statement of respondent No ·1 recorded
under Section 313 of Cr.P.C. constitutes his defence plea. He stated that
when he was sitting on a cot in the open compound of one A he was
\ attacked by the deceased along with his associate whereupon the villagers
rushed and caused injuries to the deceased. Thereafter, respondent No.I G
went to dispensary and got himself examined. The inculpatory part of his
statement is his admission of an incident of assault on the deceased in his
presence in the compound of the house of A. The accused categorically
denied to have attacked the deceased or caused him any injuries. His
specific defence plea was that in order to save him, villagers from the H
8 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A neighbourhood rushed and assaulted the deceased. (16-D-E; 17-Fl

2.3. The uculpatory part of statement of the accused under Section
313 Cr.P.C. in which he stated that he was attacked by the deceased and
his associate, whereupon the villagers rushed for his help and inflicted
.-
injuries on the deceased, cannot be outright rejected as false. The
·B inculpatory part of his statement under Section 313 Cr.P.C. to the extent
of.admission of his presence in the compound of one A when the deceased
was attacked, cannot form sole basis of the conviction. (18-8-C)

. Nishi Kant Jha v. State of Bihar, AIR (1969) SC 422, relied on~

C _3. The statement of accused under section 313 Cr.P.C. is not a
substantive piece of evidence. It can be used for appreciating evidence led
by the prosecution to ac~ept or reject it. It is, however, not a substitute
for the evidence of the prosecution. The evidence led by the prosecution
having been rejected, the defence set up by accused cannot be discarded
D as wholly improbable. fl7-G, HJ

4. The submission that accused is liable to be convicted for exceeding
his right of private defence under Section 304 IPC cannot be accepted.
Regarding respondent No.,2-co-accused, since the evidence of the
prosecution that the two co-accused made a joint assault on the deceased
E is not relied on, he cannot be convicted under section 30? with the aid of
secti~n 34 I PC. (18-D-E I

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
792-793 of 1994.

F From the Judgment and Order dated 24.9.93 of the Punjab & Haryana
High Court in Crl. A. Nos. 34-DB/92 and 475-DB of 1991.

WITH

_Criminal Appeal Nos. 794-795 of 1994.
G
Jaspal Singh, Vipin Gogia, Mrs. Jaspreet Gogia, Sushi! Kumar Jain,
Bima_l Roy Jad, R.K. Rathore, P.N. Puri, Sanjay Sarin and Ashok Mathur for
the appearing parties.

The Judgment of the Court was delivered by
H
MOHAN SINGH v. PREM SINGH [DHARMADHIKARI, J.] 9

DHARMADHIKARI, J. These two appeals have been filed by A
complainant and the State of Punjab against the judgment of the High Court
of Punjab and Haryana dated 24th September, 1993 whereby the two accused,
• I
(respondents herein) by reversal of the judgement of the Sessions Judge,
Hoshiarpur, have been acquitted of the charges under Section 302 read with
Section 34 and 324 of the Indian Penal Code.
B
The case of the prosecution against the two accused is that at 8.40 on
the night of 28.6.1990 in village Bassi Umar Khan, near the courtyard of
Atma Singh; that two accused viz. Prem Singh, accused No. I and Deepinder
Singh-accused No.2 inflicted injuries on deceased Ravinder Singh, son of
Mohan Singh-PW6 and caused his death. The prosecution case, as sought to C
be proved in the court in necessary details, is as under:-

The motive of the crime is stated to be a pending civil litigation between
'i
father of the deceased in the capacity of holder of Power of Attorney on
behalf of one Joginder Singh Mahant on one side and Sampuran Singh, father
of accused No. I, Prem Singh on the other, regarding the possession of a D
piece of land in village Bassi Umar Khan.

The alleged offence of murder of deceased is alleged to have been
committed on 28th June, 1990 at about 8.40 p.m. when the deceased was
returning from his field to his house. It is stated that Mohan Singh-PW6,
father of the deceased and Sardara Singh-PW7 were also following the E
deceased on their way back from field to the house. At that time, accused
No. I-Prem Singh, armed with Datar and Deepinder Singh-accused No.2 armed
with Gandasi way-laid the deceased. Accused No. I shouted that Mohan Singh,
father of the; deceased would be "taught a lesson" for pursuing a case against
father of Prem Singh. After such declaration accused No. I-Prem Singh gave F.
a Datar blow to the deceased which the latter warded off but it hit him on
his right hand. Deceased then in a bid to escape started running towards the
village. The two accused chased him. After covering about forty paces, the
deceased stumbled down and fell on the heap of earth lying in the coutyard
of the house of one Atma Singh. When the deceased had fallen down, accused
No. I-Prem Singh inflicted a Datar blow on the left side of neck of the G
deceased while accused No.2, Deepinder Singh inflicted a Gandasi blow on
his left knee. The above named two eyewitnesses raised alarm whereupon the
two accused ran away with their weapons. The villagers then gathered there.
The deceased was taken in a tractor-trolley to the Civil Dispensary, Haryana
where Dr. Chaman Lal-PW5, after examining the deceased, declared him H
10 SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A dead. The doctor then sent an intimation at about 9.30 p.m. to the police
station, Haryana which is stated to be at a distance of about 200 yards from
the Hospital.

The further case of the prosecution. is that thereafter leaving the dead
' .
body of the deceased in the hospital in the care. of Sardara Singh-PW?,
B Mohan Singh PW6, while proceeding to the police station, Haryana for making
a report, mef on the way, ASI Santokh Singh-PWlO. A report of the incident
was lodged with him (marked as Ex.PN) at l 0:30 pm. It .is not disputed that
the formal First lnfonnation Report Ex.PN, under Section 302/34 lndian
Pen11l Code was· registered at the police station at 10:30 pm on 28.6.1990 by
C AS! Nirmal Singh. Special report of the FIR was conveyed to the Magistrate
at Hoshiarpur through Head Constable Kapur Singh-PW4 on 29th June, 1990
at 4.45 am.
I. '

Santokh Singh, ASl-PWIO undertook the investigation of the crime.
After preparing inquest memo. Ex.PC, the investigating officer inspected the
D spot and seized blood stained earth from near the coutyard of Atma Singh.
A pair of chappals-Ex.P7/l-2 of the deceased which was found lying near the
spot at the place shown in the site-plan Ex.PT was seized.
'I

Aut0psy on the dead body ofihe deceased was conduced by Dr. Avinash
Sood PW! at· Civil Hospital, Hoshiarpur at 12 noon on 29th June, 1990. The
E doctor found the following ante mortem injuries on the person of the deceased,
which according to him were sufficient in the ordinary course of nature, to
cause his death.

"I. A spindle shaped incised wound with inverted margins measuring
6.3 cm on the nape of neck on its left laterally. Underlying muscles
F and major blood vessels cut. The wound started 2 cm away from
midline towards left the laterally.

2. A continuous wound on the right hand fingers. The wound was
incised in nature with inverted margins and underlying muscles cut
and the bones of all the fingers· exposed as if in gripping a sharp
G weapon:

3. An incised wound with inverted margins size 2 x 1 cm over the left
knee joint superiority. The wound was skin deep".

The further case of the prosecution is that the two accused made an
H extra-judicial confession to Puran Singh-PW8, Lambardar of the village when
MOHAN SINGH v. PREM SINGH [DHARMADHIKARI, J.] 11
they contacted him on 30th June, 1990 and sought his help for their production A
before the police. It is stated that the Lambardar instructed them to contact
him on the next day. The accused contacted him much thereafter on 6th July,
.I 1990 and they were then produced before ASI-Santokh Singh who arrested
them.

It is also the case of the prosecution that on the disclosure statements B
.of the two accused, the alleged weapons used, described as Datar Ex.P6 and
Gandasi Ex.PS, were recovered and seized after digging out earth from the
comer of the tube-well room.

Accused No.2, Deepinder Singh, abjured his guilt and stated that he C
had been falsely implicated. Prem Singh-accused No. I, however, after the
trial, in his examination under Section 313 of the Code of Criminal Procedure
took the following specific defence which reads as under:·

"Atma Singh does not live in the village. The compound of his house
is open. I was sitting on a cot in his compound. Ravinder Singh D
armed with takua, Amarjit Singh, son of Sardara Singh, armed with
a dang, came there and attacked me and caused injuries. I raised
alarm. Neighbours came, and inflicted injuries to Ravinder Singh in
order to rescue me from Ravinder Singh. I went to the Civil
Dispensary, Haryana and got myself medically examined. Doctor
Chaman Lal informed the police. AS! Santosh Singh came to the E
hospital and I informed him .of the occurrence. He arrested me and
took me to the police station, detained till 5.7.1990 and framed me
in the case. Mohan Singh does not reside in village Bassi Umar
Khan. Sardara Singh is inimical to me and the members of my family."

Dr. Chaman Lal-PW5 had medically examined accused Prem Singh on F
28.6.1990 at 9.45 pm and found following four injuries on his person:

"l. An incised wound 3.5 cm x 0.25 cm x muscle deep present on the
inner aspect of the right thumb. It was lying obliquely. Upper end
was 5 cm from the tip of the thumb. Fresh bleeding from the wound
was present. G
2. An abrasion 2 cm in length x linear present on the palmer aspect
of the right hand, 2 cm in front of injury no. I.

3. An abrasion 2 cm in length x linear present on the back of ring
finger lying obliquely and in the middle of the finger of left hand. H
12 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A 4. An abrasion 2 cm x linear lying on the back of ring finger of left
hand 2 cm below the injury no.3".

The trial court believed the eyewitnesses account given by Mohan Singh-
PW6 and Sardara Singh-PW7. It also relied on the evidence of extra-judicial
confession made to Puran Singh-PW&. The trial court, however, doubted the
B · genuineness of the recovery of the weapons. After appreciating the evidence
on record by its judgment dated 6.12.1991 the trial court convicted Prem
Singh-accused No. I under Section 302 !PC and sentenced him to life
imprisonment. Deepinder Singh-accused No.2 was convicted under Section
302 with the aid of Section 34 !PC and was also sentenced to life imprisonment.

c The High Court in appeal, however, acquitted the accused. On the
question of alleged motive, the High Court found that civil litigation was
against Mohan Singh-PW6 and not against his son deceased Ravinder Singh.
In its opinion, the case of the prosecution is highly improbable that-<leceased
alone was attacked, and Mohan Singh against whom the accused had actual
D grudge, was allowed to go unhurt.

The High Court found that the entries in the OPD register of the Hospital,
where the dead body is alleged to have been c:arried by the two alleged
eyewitnesses, contains interpolation. There was a subsequent insertion of
entry of dead. body of the deceased in the register. The said tampering with
E the hospital record indicates that false evidence was created to prove the
presence of the two alleged eyewitnesses at the time of the incident. The
High Court also found that evidence of recovery of the alleged weapons
made on 6th'July, 1990 was a fabrication as was also found by the trial court.

The High Court totally discarded the alleged extra-judicial confessions
F made to Puran Singh-PW&. It is held that there was no possibility of the
accused reposing any confidence in Puran Singh, the Lambardar of the village
and confessing their involvement before him. The conduct of Puran Singh is
also unnatural.. On such alleged confession he instructed them to contact him
the next day but the accused contacted him on 6th July, 1990 on which date
G they were fonnally arrested. The High Court observed that Puran Singh is
Lambardar of the village and being in close contact with the police has been
set up as a witness to prove a false extra judicial confession.

The High Court came to the conclusion that there is unexplained delay
in lodging the FIR. The High Court found that the FIR was ante-timed. Kapur
H Singh, Head Constable in that regard was disbelieved. His explanation that
MOHAN SINGH v. PREM SINGH [DHARMADHIKARI, .I.] 13
he left police station,. Haryana on motorcycle at 12.00 in the mid-night but A
could not carry the report to the judicial magistrate same night because his
motorcycle developed some problem on the way, has been disbelieved. The
explanation for further delay, by stating that the magistrate was asleep has
,' also been found by the High Court to be false. The conduct of Police Constable
is held to be contrary to the provisions of the Punjab Police Manual which B
contains instructions how FIRs are to be promptly recorded and reported to
the Magistrate.

The High Court also came to the conclusion that the two eye-witnesses
Mohan Singh PW6 and Sardara Singh-PW? have been falsely set up to depose
that they had actually witnessed the assault made by the accused. The High C
Court has recorded more than one reason to reject the testimony of the
alleged eyewitnesses. It is observed that if one of the accused had a serious
grudge against Mohan Singh-PW6 who was present on the spot, instead of
attacking him, there was no cause to open attack on his son, the deceased.
According to the High Court, the conduct of the alleged eyewitnesses is
highly unnatural so also of the deceased. When suddenly attacked the deceased D
did not turn towards the eyewitnesses for help. The two eyewitnesses did not
intervene, render any help or raise a hue and cry to attrac\ the villagers. If
the incident took place near the village in the courtyard of Atma Singh,
independent witnesses could have been examined from the village. The version
of the eyewitnesses that they had carried the deceased in injured condition to E
the hospital has been disbelieved because there was no recovery and seizure
of any blood stained clothes of the eyewitnesses. The investigating party also
did not collect any blood stained earth from the place where the accused are
alleged to have first opened the attack and inflicted injuries on the deceased.

Keeping all the above evidence and circumstances in view, the H.igh F
Court acquitted both the accused.

We have heard learned counsel appearing for the complainant-Mohan
Singh and learned counsel appearing for the State of Punjab. On behalf of the
/
.:...f
..... appellant, the judgment of acquittal passed by the High Court has been assailed
•V and criticized severely on several grounds. It is argued that as the deceased G
was walking ahead of the eyewitnesses, it was not possible for the accused
to have opened attack on the eyewitnesses. It is submitted that after receiving
a blow the deceased, as a natural response ran away for his life. It was not
necessary for him to have turned for help towards the eyewitnesses. For non-
recovery of blood stained earth from the place where the attack was first H
14 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A opened, it is submitted that the place might have been trampled by cattle to
leave no trace of blood. So far as non-examination of indep.endent witne~ses
is concerned, it is stated that it is only after the attack was over that the
villagers rushed to the spot on hearing an alarm raised by the eyewitness. The
learned counsel also severely criticized the reasoning of the High Court that
B the chappals of the deceased were found near the courtyard of Atma Singh
when they would have been left by the deceased at the place where he was
first attacked. On the question of unexplained delay in reporting the FIR to
the Magistrate, it is submitted that the explanation given by the Head Constable,
Kapur Singh that his vehicle had developed plug spark problem, on the way
to Magistrate, ought to have been believed. On the other reasoning of the
C High Court that as the deceased had died immediately after the assault, there
was no reason to carry his body to the hospital, it is urged that it was natural
for the father to have carried the body to the hospital, as he would not have
known that there could have been no chance of revival of life of his son. It
is also argued that it was not necessary for the: prosecution to explain the
injuries found on the person of the accused Prem Singh as they were very
D minor or superficial injuries and according to doctor would have been even
self-inflicted.

On behalf of complainant in the appeal, th·e learned counsel laid much
emphasis on the statement of accused Prem Singh in his examination under
E Section 313 Cr.P.C. wherein he admitted the incident to have taken place in
the compound of Atma Singh. It is argued that the accused took a false plea
that the deceased and one Amarjeet Singh s/o PW7 Sardara Singh had attacked
him whereupon the villagers rushed to his help and caused injuries to the
deceased. On behalf of the complainant, learned counsel further argues that
the High Court having rejected the defence vers.ion of accused Prem Singh
F made by him in his statement under Section 313 of the Code of Criminal
Procedure, ought to have held that story of assault by villagers was false. On
his own defence plea the accused Mohan Singh had exceeded the right of •
private defence making him liable to be convicted and sentenced under Section
304 !PC.

G As against accused No.2, Deepinder Singh, it is argued that since he
accompanied acc'tised No. l Prem Singh and participated with him in assaulting
the deceased he should have been convicted under Section 302 or 304 with
the aid of Section 34, !PC.

We have heard learned counsel appearing for Deepinder Singh. It is
H
MOHAN SINGH v. PREM SINGH [DHARMADHIKARI, J.] 15
argued that there was no motive nor is there evidence against him for his A
conviction with the aid of Section 34, IPC. Accused No.2 Decpinder Singh
has been attributed to have caused one injury which is found to be only skin
deep. He did not cause any injury on any vital part of the body of the
deceased.

The evidence of extra-judicial confession and recovery of weapons was B
rightly rejected by the High Court. There was no other evidenGe to twld that
Deepinder Singh had common intention with the co-accused Prem Singh to
commit murder. It is submitted that accused No.2 has rightly been acquitted
on justifiable reasons. He has by this time already suffered imprisonment for
six months during trial and after his conviction. c
Having gone through the evidence on record and considering the
submissions made by the learned counsel, we have come to the conclusion
that there is no case made out for this Court to interfere with the judgment
of acquittal passed by the High Court. At some places, in the impugned
judgment of acquittal the reasoning of the High Court may not be sound but D
on weighing the total evidence on record, in our considered opinion, the High
Court committed no error in acquitting both the accused. There are several
infirmities in the prosecution case. The evidence of alleged eyewitnesses
does not inspire confidence. At about 8'0 clock in the night, their version is
that they were following the deceased on way to the village. Their subsequent E
conduct in not intervening in the attack or rushing to the village for help is
unnatural. Their testimony has rightly been found unreliable. The entry in the
register of the Out Patient Department of the hospital, has been found to have
been tampered which supports the defence case that only in order to prove
the presence of the two eye witnesses, interpolations were made in the hospital
records. The delay in recording of FIR has been explained on lame excuses F
such as the Head Constable carrying report to the magistrate was held up
because of the break down of his motorcycle and the magistrate was asleep
when he contacted him at his residence. These circumstances clearly indicate
that there was no prompt lodging of the report of the incident by the two
witnesses PW6 ·and PW7. Hence their presence at alleged date and time of G
incident is highly doubtful.

The prosecution is guilty of fabricating false evidence of extra judicial
confession and recovery of the weapons used by the accused. So far as
Deepinder Singh, accused No.2 is concerned, he has been falsely implicated.
He had no motive of committing murder of the deceased. He is alleged to H
16 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A have caused one simple injury to the deceased. There is no evidence why he
should join the co-accused in openjng a brutal attack on the deceased. The
defence plea taken by him that he was falsely implicated because of some
pending civil dispute with PW7, Sardara Singh concerning use of path, appears
to be plausible.

B To seek conviction of accused No. I Prem Singh much emphasis has
been laid on his inculpatory statement given under Section 313 of the Code
of Criminal Procedure. This argument advanced on behalf of the complainant
deserves some serious consideration.

By a careful reading of the statement of accused Nol-Prem Singh,
C (rel?roduced above) which is recorded durin~ his examination under Section
313 of Cr.P.C. his defence plea has to be appreciated. According to him,
when he was sitting on a cot in the open compound of Atma Singh, deceased
armed with Takua and Amar Singh (son of Sardara Singh-PW?) armed with
a Dang came there and attacked him causing him injuries. On his raising
D alarm neighbours rushed and inflicted injuries to the deceased to save the
accused. Thereafter, Prem Singh went to the Civil Dispensary, Haryana and
got himself examined by Dr. Chaman Lal. In the above statement of accused-
Prem Sir.gh given under Section 313, the inculpatory part is his admission of
an incident of assault on the deceased in his presence in the compound of the
house of Atma Singh. The accused has categorically denied to have attacked
E the deceased or caused him any injuries. His specific defence plea is that in
order to save him, villagers from the neighbour rushed and assaulted the
deceased.

The statement made in defence by accusedl under Section 313, Cr.P.C.
F can certainly. be taken aid of to lend credence to the evidence led by the .
prosecution, but only a part of such statement under Section 313 of the Code
of Criminal Procedure cannot be made the sole basis of his conviction. The
law on the subject is almost settled that statement under Section 313 Cr.P.C. ,
of the accused can either be relied in whole or in part. It may also be possible
to rely· on the inculpatory part of his statement if the exculpatory part in ·
G found to be false on the basis of the evidence led by the prosecution See
Nishi Kant Jha v. State of Bihar, AIR (1969) SC 422.

"In this case the exculpatory part of the statement in Ex. 6 is not only
inherently improbable but is contradicted by the other evidence.
According to this statement, the injury which the appellant received
H was caused by the appellant's attempt to catch hold of the hand of
MOHAN SINGH v. PREM SINGH [DHARMADHIKARI, .I.] 17

Lal Mohan Sharma to prevent the attack on the victim. This was A
contradicted by the statement of the accused himself under S. 342
Cr.P.C. to the effect that he had received the injury in a scuffle with
a herdsman. The injury found on his body when he was examined by
the doctor on 13th October 1961 negatives both these versions. Neither
of these versions accounts for the profuse bleeding which led to his
washing his clothes and having a bath in the river Patro, the amount B
of bleeding and the washing of the blood-stains being so considerable
as to attract the attention of Ram Kishore Pandey, PW 17 and asking
him about the cause thereof. The bleeding was not a simple one as
his clothes all got stained with blood as also his books, his exercise
book and his belt and shoes. More than that the knife which was C
discovered on his person was found to have been stained with blood
according to the report of the Chemical Examiner. According to the
post mortem report this knife could have been the cause of the injuries
on the victim. In circumstances like these there being enough evidence
to reject the exculpato1y part of the statement of the appellant in Ex. 6
the High Court had acted rightly in accepting the incu/pat01y part D
and piercing the same with the other evidence to come to the
conclusion that the appellant was the person responsible for the
crime.

[underlining for emphasis]
E
In the case in hand, we have agreed with the conclusion of the High
Court that the prosecution has failed to prove the genesis of the crime and
the nature of the incident. The version of the alleged eye-witnesses, the
evidence of extra judicial confession and recoveries of weapons have been
found to be untrustworthy.
F
The statement of accused No. I - Prem Singh recorded in his examination
under Section 313 of Cr.P.C. constitutes his defence plea. He stated that he
'../ was attacked by the deceased along with his associate whereupon the villagers
rushed and caused injuries to the deceased. The evidence led by the prosecution
having been rejected by this Court, the defence set up by accused-Prem G
Singh cannot be discarded as wholly improbable.

The statement of accused under Section 3 I 3 of Cr.P.C. is not a
substantive piece of evidence. It can be used for appreciating evidence led by
the prosecution to accept or reject it. It is, however, not a substitute for the
evidence of the persecution. As held in the case of Nishi Kant (Supra) by this H
18 SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A Court, if the exculpatory part of his statement is found to be false and the
evidence led by the prosecution is reliable, the inculpatory pa1t of his statement
can be taken aid of to lend assurance to the evidence of the prosecution. If
the prosecution evidence does not inspire confidence to sustain the conviction
of the accused, the inculpatory part of his statement under Section 313 of
Cr.P.C. cannot be made the sole basis of his conviction.
B
In the present case, the exculpatory part of statement of the accused
under Section 313 of Cr.P.C. in which he stated that he was attacked by the
deceased and his associate, whereupon the villagers rushed for his help and
inflicted injuries on the deceased, cannot be outright rejected as false. The
C inclupatory part of his statement under Section 313 of Cr.P.C., therefore, to
the extent of admission of his presence in the compound of Atma Singh when
the deceased was attacked, cannot form sole basis of his conviction.

The alternative submission made by the learned counsel on behalf of
the complainant that on basis of the statement of the accused-Prem Singh
D under Section 313 of Cr.P.C., is liable to be convicted for exceeding his right
of private defence under Section 304 of !PC.,. cannot be accepted for the
reasons mentioned above.

So far as case against the co-accused-Deepindcr Singh is concerned,
since we have not relied on the evidence of the prosecution that the two co-
E accused had made a joint assault on the deceased, he cannot be convicted
under Section 302 with the aid of Section 34 !PC for his alleged common
intention with the co-accused Prem Singh.

We thus, find no ground to interfere with the verdict of acquittal passed
by the High Court in favour of both the accused. In the result, we dismiss.
F both the appeals. Bail-bonds furnished by the respondent-accused are
discharged.

N.J. Appeals dismissed.

I'