Holding

The prosecution failed to establish the guilt of the accused beyond reasonable doubt, rendering the convictions unsustainable.

Summary

The appellants were convicted for offences under Sections 148, 149 and 302 of the IPC based solely on the testimony of PW‑7, a cousin of the deceased and an interested witness. The Supreme Court held that the burden of proof lies on the prosecution and must be discharged beyond reasonable doubt. It found that PW‑7's evidence was unreliable, uncorroborated, and contradicted by other material witnesses who were not examined. The non‑examination of these witnesses and the lack of corroborative forensic evidence created a fatal lacuna in the prosecution case. Consequently, the Court concluded that the prosecution had not proved the guilt of the accused and set aside the convictions, acquitting the appellants and discharging their bail bonds.

Issues considered

The prosecution must prove the guilt of the accused beyond reasonable doubt.
Whether the sole testimony of an interested eyewitness without any corroboration can sustain a conviction under Sections 148, 149 and 302 IPC.
Whether the failure to examine other material eyewitnesses amounts to a fatal lacuna in the prosecution case.
Whether the credibility of PW‑7 is compromised by his interest and false statements.
Whether the recovery of weapons and blood‑stained clothes can be relied upon without corroboration.

Legislation cited

Indian Penal Code, 1860s. 148, s. 149, s. 302

Subjects

burden of proofeyewitness testimonycorroborationinterest witnessacquittalSections 148, 149, 302 IPCevidence appraisal

Judgment

- SOHAN AND ANR.
v.
STATE OF HARYANA AND ANR.
A

MARCH 2, 2001

[U.C. BANERJEE AND SHIVARAJ V. PATIL, JJ.] B

Criminal Trial :

Criminal jurisprudence-Basic or fundamental principles-E1•idence-
App1~ciation of-Bun/en of proof-Held: Is on the prosecution-Prosecution
has to establish its case beyond all reasonable doubts-Such basic or funda- C
mental principles of criminal jurisprudence should be kept in mind while
appreciating evidence.
Conviction-Based on the sole evidence of one of the eye\vitnesses-
Other eyewitness-Non-examination of-Eyewitness examined was an inter-
ested witness and also inimical to the accused-Effect of-Held: It is unsafe D
to act on the evidence of such eyewitness without any convboration-Non-
examination of other material lvitnesses is a serious lacuna in the prosecution
case-Non-examination ofthe other eyewitness is also fatal-Rener: conviction
set aside.

The appellants-accused were convicted by the trial court hased on E
the sole evidence of one of the eyewitnesses (PW-7) for offences under
Sections 148 and 302 read with Scction149 of the Penal Code, 1860. The
High Court upheld the conviction. Hence this appeal.
According to the prosecution N and his cousin (PW-7) started l"rom
their village to attend court hearing in a civil litigation between themselves F

- and the accused persons. When they were at the outskirts of the village, the
accused persons gave lathi hlows to N, who died on the next day at the
hospital.
On behalf of the accused persons it was contended that PW-7 was
not a trustworthy witness as he had made a false statement regarding the G
parties to 'the civil litigation; that PW-7 was an interested, 'vitness, being a
cousin of the deceased, and inimical to the accused persons; that there was
no corroboration to the evidence of PW-7; and that non-examination of
the other eyewitness was fatal to the prosecution.

Allowing the appeal, the Court H
309
310 SUPREME COURT REPORTS [2001] 2 S.C.R.
A HELD : 1. An accused is presumed to be innocent until he is found
guilty. The burden of proof, that he is guilty, is on the prosecution and that
the prosecution has to establish its case beyond all reasonable doubts. In
other words, the innocence of an accused can be dispelled by the prosecu-
-
tion only on establishing his guilt beyond all reasonable doubts on the basis
of the evidence. In this case, if only the Sessions Judge had reminded
B
himself of the above mentioned basic or fundamental principles of crimi-
nal jurisprudence, direction or his approach and course of his appreciation
of evidence would have been different and thereby perversity in apprecia-
tion of evidence could have been avoided. [315-H; 316-A].

c 2. The prosecution case entirely rested on the sole evidence of PW-7,
who was not only interested, being the cousin of the deceased, and was
inimical too to the accused in view of the civil litigation. It was unsafe to act

D
on his evidence "ithout any corroboration. Although there were material
"itnesses available to corroborate, their non-examination or "ithholding
their evidence was a serious lacuna in the prosecution case. Non-examina-
,. .
tion of the other eyefiltness whose name was mentioned in the FIR and who
had \vitnessed the occurrence according to PW-7, was also Catal.[317-G]

3.1. The credibility or PW-7 and truthfulness of his evidence in the
circumstances needed to be scrutinized filth great care and caution;, His
evidence does not inspire confidence. [318-E]
E
3.2. The Sessions Court as well as the High Court have concurrently

F
and manifestly erred in convicting and sentencing the accused. In a case
like this interference filth the impugned judgment and order is called for
to do substantial justice. [318-H; 319-A]
-
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 247
of 1991.

From the Judgment and Order dated 25.9.1986 of the High Court of
Pnnjab & Haryana at Chandigarh in Cr!. Appeal No. 454-DB of 1985.
G WITH

Civil Appeal No. 731 of 1991

Sushi! Kumar, Jaspal Singh, Ms. Gauri K. Das, Ms. Gitanjali Malviya, ;,. ~
Ravi Wadhwa, Ms. Rani Jethmalani, R.C. Kohli, Maninder Singh, A.
H Mariarput11am, Ms. Aruna Mathur, Neera_j Kumar Jain, Mahabir Singh and
..
SOHAN v. STATE OF HARYANA [SHIVARAJ PATIL, J.] 311
Jrfan Ahmed for the appearing parties. A
The Judgment of the Court was delivered by

SHIVARAJ V. PATIL, J. These appeals are directed against the
judgment and order of the High Court of Punjab & Haryana made in Criminal
Appeal No. 454-DB of 1985. B
These appellants were accused nos. I to 6 before the Sessions Court.
A-I is the father of A-2. A-3 is the father of A-4 to A-6. A-I and A-3 are
. brothers by birth.

The prosecution case as unfolded by PW-7 at the trial is that on
11.2.1985 the deceased Daya Nand and PW-7 Hoshiar Singh had started from c
their village in order to reach Bhiwani to attend court hearing in the appeal.
When they were at the outski1ts of tlte village, the six accused emerged from
behind stones. Randhir (A-2) and Kartar (A-5) were armed with pharsis and
... " rest of them with lathis. They surrounded the deceased and PW-7 saying "In
Ko Aaj Yahin zarnin dai do aur khata kar do". Looking to the danger, the D
deceased and PW-7 ran into the nearby house of Nanak, the door of which
was open. The accused chased them. PW-7 ran ahead deeper into the house
and reached a point where there is a Neem tree and which is at higher level.
He looked back and saw Daya Nand had scaled a dauli (a small wall). He
was overtaken by Randhir who had also jumped over the dauli. Randhir gave
... a pharsi blow on Daya Naud. At that stage, accused Partap reached there and
E
he also gave three lathi blows to Daya Nand in the back. Sohan, Ramanand
and Rajinder also anived there and each of them gave one lathi blow to Daya
Nand. Sumer, son of Nanak, tl1e owner of the house having come out of the
house also saw this occtlffence. After dealing with Daya Nand, the accused
proceeded to chase PW-7 but he ran away to his house. After reaching home, F
he n=ated, as to what happened, to his brother Dani Ram and cousin Tara
Chand who were sitting at the entrance of the house and brought them to the
spot of occurrence. They found Daya Naud lying unconscious and the accused
had run away. They took Daya Nand to his house. From there, they brought
him to Primary Health Centre at Gopi at about 8.00 or 8. 15 A.M. G
According to PW-I, Dr. Dilbagh Singh, lncharge of the Gopi Primary
Health Centre, Daya Nand was brought to hospital at 8.30 A.M. His condition
was serious as he was having multiple injuries; after giving emergency
treatment, referred him to General Hospital, Bhiwani giving a ruqa to Pulice
Station, Badhra. H
312 SUPREME COURT REPORTS [2001] 2 S.C.R.
A PW-2, Dr. RN. Swami, attended Daya Nand at General Hospital,
Bhiwani. He sent ruqa at IO. I 0 A.M. to the Incharge, Police Post, General
Hospital, Bhiwani and proceeded with medical examination. He found 12
injuries on Daya Nand. In response to the ruqa sent by PW-2, Sub-Inspector,
Udey Chand (PW-9), Incharge, Police Post, General Hospital, Bhiwani
B reached the emergency ward at 10.20 A.M. to find out if Daya Nand was
in a fit condition to make statement. The doctor gave opinion that Daya Nand
was unfit to make a statement. PW-9 has stated that a man who was present
by the side of Daya Nand told him that PW-7 had gone to bring medicine. t'
PW-9, Udey Chand could meet PW-7 at about 12.15 P.M. and recorded his
statement as per Ex. PK/I which constituted F.l.R. in the case. With his
c endorsement PK/2, PW-9 gave ruqa Ex. P.C. along with his application made
to the doctor and copy of M.L.R. with a direction to carry to the Police
Station Badhra for the registration of the case.

Daya Nand died at 12.10 A.M. on 12.2.1985. PW-2, Dr. Gupta
D intimated this fact to the Incharge, Police Post of the Hospital, Bhiwani. The
dead body was subjected to post-mortem examination by Dr. R.G. Jindal
(PW-4). The accused Randhir surrendered to the court on 14.2.1985. The
remaining accused were also arrested on 15.2.1985. Thereafter recoveries
were made at the instance of the accused as per the details given in the
judgment of the Sessions Judge in paragraphs 20-27.
E ...
In support of the case, the prosecution examined 12 witnesses including
PW-6 Amir Chand, Draftsman and PW- I 0 Deep Chand, the Headmaster of
Government High School, Dalawas.

F The learned Sessions Judge relying on the evidence of sole eyewitness
PW-7 - Hoshiar Singh convicted all the accused for the offences under
Sections 148 and 302 read with Section 149 of !PC.

It is unfortunate that the approach and appreciation adopted by the
Sessions Court was manifestly erroneous and contrary to the well-settled
G principles of Jaw. It may be said that the approach of the learned Sessions
Judge has been one-sided. Lapses, omissions and contradictions in the
prosecution. case were either condoned or lightly brushed aside or were
supported without any justification against the probabilities appearing in the
case which is dearly demonstrated hereinbelow. It should be remembered that
H PW-7 - Hoshiar Singh is the cousin of the deceased Daya Nand. Admittedly,
SOHAN v. STATE OF HARYANA [SHIVARAJ PATIL, J.] 313

- there was civil litigation between the accused on the one side and deceased
Daya Nand and himself and others on the other side. The alleged motive for
the commission of offence is the very civil litigation. The suit for permanent
A

injunction in respect of land in dispute was filed on 11.3.1982 by accused
Sohan in which temporary injunction order was granted against the deceased
and PW-7 and others which was confirmed later after hearing both the parties.
B
'lbereafter the suit itself was decreed on 20.12.1983. The deceased Daya
Nand and PW-7 had filed appeal against the decree in the Court of Addi.
District Judge, Bhiwani on 23.1.1984. PW-7 had however admitted that
accused Sohan was in exclusive possession of the said land. These facts are
established by documents Ex. DNI to DN!O. PW-7 in the F.l.R. as well as
before the court had claimed that civil suit with regard to the joint land was c
instituted by him and Daya Nand against other co-sharers Sohan and others
and that the same was dismissed. This was incorrect and belied by Ex.
DA/I to DN!O. When it was pointed out that PW-7 was not trustworthy as
"' "" hd had made false statement against the records being himself party to the
proceedings, the learned Sessions Judge in para 35 of the judgment, dealing D
with the same has stated thus :-

"The criticism is factually coITect but it does not make any' dent in
the prosecution case. Hoshiar Singh is an illiterate witness and is not
expected to know the background details of litigation. Suffice it to say
that it is a common case of the parties that there was litigation over E
the land. In other words, there was bad blood between them and that
is enough for o~purpose."
1

According to the learned Sessions Judge, it was enough for the purpose
of establishing motive of the accused to commit the crime but failed to F
objectively consider why it was n6t enough to disbelieve the evidence of PW-
• .A. 7 in view of the fact that he was both interested and partisan that too in the
absence of any coIToboration. ·.. ·

As'to the contention that PW-7, Hoshiar Singh, was most unlikely to
accompany the deceased to Bhiwani on the date of occurrence on the ground
G
that looking to Ex. DN5 to DN10, the order passed in the appeal, the
presence of PW-7 was not there and in the appeal his presence was not
- ~ required on 11.2.1985, the learned Sessions Judge observed that there was
no bar for PW-7 from attending the court and that he was illiterate person
and did not know what proceedings _were to take place. That learned Sessions H
314 SUPREME COURT REPORTS [2001] 2 S.C.R.
A Judge added on his own "Even otherwise also, the parties do attend even on
dates which are not for final hearing". On behalf of the accused, efforts were
made to show that neither the deceased Daya Nand nor PW-7 HoshiM Singh
-
on the date of occun-ence at the time mentioned were going from their village
to Bhiwani, referring to various circumstances, one of the circumstance being
B neither any money nor any documents were recovered from the dead body
of Daya Nand. The learned Sessions Judge has strongly observed thus :-

"It is not disputed that injured Daya Nand was first canied home. If
i:te had any documents or money on his person, the same might have
been removed by the members of his family. There was no point in
c sending a dying man to the Hospital with money or documents in his
pocket. The wiser course would be to remove them."

The case of the accused that it was a blind murder, must have taken
place at night time was brnshed aside without any deeper consideration.

D When it was found that there was conflict in the evidence of PWs 6
& 7, the learned Sessions Judge prefe!l"ed to believe PW-7, a partisan, rather
than the PW-6, the Draftsman, a Government servant. The learned Sessions
Judge has dubbed him as a dishonest witness. If that be so, we fail to
understand as to why the prosecution did not treat him as hostile.
E When the contradiction in the evidence of PW-II - Sub Inspector
Krishan Lal was pointed out with reference to sending of rnqa of the doctor
along witl1 the M.L.R., the learned Sessions Jud(e has stated thus:-

"This discrepancy is there, but it is wholly immaterial. It appears that
F the memory of the S.l. was failing him on this point."

Similarly when it was contended that there was delay in the F.I.R., the
learned Sessions Judge has stated that Daya Nand was in a serious condition;
everybody including PW-7 were interested to save life of the deceased
although the Sub Inspector of Police went to hospital at I 0.20 AM, he could
G not meet PW-7 till 12.20. It is stated that PW-7 bad gone to buy medicines
and as such he was not available. The presence of PW-7 in the hospital was
not spoken to by the doctor on duty and even his name was not mentioned
as a person accompanying the deceased to the hospital. With all this, the
learned Sessions Judge says that the delay in F.I.R. is never vital per se when
H the evidence otherwise inspires confidence. It is strange as to how such
SORAN v. STATE OF HARYANA [SH!VARAJ PATIL, J.] 315

, evidence of PW-7 alone without auy corroboration could be said to inspire A
ccnfidence.
;
Again when contradiction in the statement of AS! Kaura Ram was
shown with regard to leaving police station for starting investigation, the
learned Sessions Judge has stated thus:-
B
"Surely, the statement of A.S.I. Kaura Ram does not tally with the
record. But for whatever reason this lacuna may be, it does not go
to the root of the matter even if we exclude the presence of Kaura
Ram from the scene on 11.2.1985, the prosecution case will remain
unaffected."
c
The learned Sessions Jndge did not appreciate the evidence objectively.
He failed to see that all the male members 3of the two families of the accused
were involved because of enmity on account of land dispute. The evidence
of PW-7, the sole eye-witness without any corroboration ought to have been
- ~ scmtinized with great caution who has given the graphic details as to the
D
injuries caused by each accused when he himself W«S frightened and was
mnning away.

The trial court partly believed the recovery of weapons and clothes but
the H; gh Court totally disbelieved tl1e recovery. This was also strong circum-
stance against the prosecution. E
" Reacting to the submission that non-examination of another eye-wiL'1ess
Sumer the learned Sessions Judge has stated thns :-

"But Snmer was given up as having been won over by the accused.
And the phenomenon of such winning over is not unknown to the
F
courts. In any event, Sumer' s non-examination does not wash away
_..,. the remaining evidence."

This approach of the learned Sessions Judge is unusual and strange.
The learned Sessions Judge failed to objectively assess and analyse the
evidence and circumstances consistent with crystalised judicial view and tl1at G
it was unsafe to act on the sole evidence of PW-7 in the circumstances.
J

An accused is presumed to be innocent until he is found guilty. The

- ,. burden of proof; that he is guilty, is on the prosecution and that the
prosecution has to establish its case beyond a\l reasonable doubts. In other
words, the innocence of an accused can be dispelled by the prosecution only H
·l

316 SUPREME COURT REPORTS (2001] 2 S.CR.
A on establishing his guilt beyond aU reasonable doubts on the basis of
evidence. In this case, if only the Sessions Judge had reminded himself of
the above-mentioned basic or fundamental principles of criminal jurispru-
dence, direction of his approach and course of his appreciation of evidence
would have been different and thereby perversity in appreciation of evidence
could have been avoided.
B
It is equally unfortunate that the High court did not seriously and
objectively re-appreciate the evidence placed ou record as the first appellate
court, but has simply appended its seal of approval to the judgment of the
Sessions court. When it was pointed out that PW-7 was not a truthful witness
C inasmuch as he gave false statement with regard to the very litigation between
the parties, the High Court observed tliat whatever may be the situation that
a case was fixed in tl1e appeal on 112.1985 and to attend the proceedings
in the appellate court, someone had to go to the court. We fail to understand
as to how someone had to essentially go to attend the court in appeal. The .. .
D High Court proceeded to say that PW-7 had no reason to falsely implicate
the accused 4 to 6 unless they were there. The observation of the High Court
is that :-

"The manner in which Daya Naud deceased and Hoshiar Singh PW-
7 were chased also shows that the accused were suflicient in number.
E The number and type of injuries on the dead body of Daya Nand
deceased also suggests that the number of assailants was quite big.
These circumstances lend assurance to the truthful nature of this
version.''

F We are unable to understand as to how chasing deceased Daya Nand
and PW-7 showed that the accused were sufficient in numbers and similarly
how the number and types of injuries on the deceased suggested that the ,;.._ .,
munber of assailants was quite big. If this is accepted, the number of accused
could be more than six. Co1nmenting on the non-examination of another eye-
witness Sumer, the High Court has stated thus :-
G
"As the land dispute between Daya Nand and his collateral on the one
side and Sohan Lal accused on the other had resulted into this
incident, Sumer, his father and other people in the village may not
have liked siding with anybody. These days it is commonly seen that
H in such disputes, people nmmally abstain themselves from involving
SOHAN v. STATE OF HARYANA [SHIVARAJ PATIL, J.] 317
into the affairs of others by taking stand in favour or against any of A
the parties."

In the absence of any explanation by the prosecution as to the non-
examination of the Sumer, this sort of conjecture by the High Court was
neither warranted nor sustainable. The High Court has made further guess
work by stating that:- B

"There may be other reasons for Sumer to stay away from the witness
box which may not be envisaged by us."

In regard to non-examination of Dani Ram, the brother of PW-7 and
Tara Chand, the cousin of PW-7, the High Court has stated that their
c
appearance or non-appearance could hardly improve matters in favour of the
accused.

It was pointed out that when Daya Nand was taken to Bhiwani hospital,
Tara Chand was with him at the time of his medical examination and if PW- D
7 was with the deceosed at that time, his presence would have been recorded
by the doctor. The doctor stated that Tara Chand was there. PW-7 himself
had stated that Tara Chand had accompanied him when he took Daya Nand,
the deceased, to the hospital. This was another reason why Tara Chand shonld
have been examined. Non-mentioning the name of PW-7 as accompanying
the deceased to the hospital also raises the doubt as to his presence in the
E
hospital.

The High Court has disbelieved the recovery of the· clothes and
weapons of the offences. With all this, the High Court affirms the judgment
of conviction of the Sessions Court acting on the evidence of PW-7 alone. F

We may add that the prosecution case entirely rested on the sole
evidence of PW-7, who was not only interested being the cousin of the
deceased and was inimical too to the accused in view of the civil litigation
referred to above. It was unsafe to . act on his evidence without any
corroboration. Although there were material witnesses available to corrobo- G
rate, their non-exaqiination or withholding their evidence was a serious
lacwia in the prosecution case. Non-examination of another eye-witness,
Sumer, whose name was mentioned in the FIR and who had witnessed the
occurrence accordi~g_to PW-7, was also fatal. PW-7 stated that he himself,
his brother Dani Ram and his cousin Tara Chand went to the place of H
1

318 SUPREME COURT REPORTS (2001] 2 S.C.R.
A occurrence and lifted Daya Nand to his house and their clothes got
bloodstained. The bloodstained clothes were neither produced nor seized.
Failure to do so raises a serious doubt as to the version of PW-7. Dani Ram
and Tara Chand were also not examined. PW-7 stated that irurnediately after
ihe occurrence he ran towards his house; in front of his house Dani Ram
B and Tara ChaIJd were sitting, he informed them and narrated about the
incident and thereafter all three of them went to the place of occurrence
and brought the deceased Daya Nand to his house. If only Dani Ram and
Tara Chand were examined they wonld have corroborated the evidence of
PW-7. This again shakes the prosecution case. The High Court disbelieved
the recovery of both weapons and clothes. Jn all cases recovery by itself
c may not be material. But in this case in the absence of corroboration to
the evidence of PW-7, the recovery aspect assumed importance. The civil
litigation was started in 1982; the suit was decreed in favour of Sohan,
accused no. 1 in 1993; the appeal filed by the deceased and PW-7 was
pending on the date of occurrence; there was no immediate provocation or
D cause for committing the offence on 11.2.1985.

The credibility of PW-7 and truthfulness of his evidence in the
circumstances needed to be sc1utinized with great care and caution. His
evidence does not inspire confidence for the reasons that (a) though he was
E a party to the civil suit as a defendant along with deceased Daya Nand,
he falsely stated that it was deceased Daya Nand who filed the suit, when
as a matter of fact it was the accused no. 1 Sohan, who had filed the suit.
(b) He had made a wrong statement as to the possession of the disputed
land but he was forced to admit the possession of accused Sohan in the
cross-examination. (c) He stated, "When the Draftsman came to the spot
F
I was not there". PW-6, the draftsman clearly stated in his evidence that
he prepared the site plan Exh. PN on tho pointing out of PW-7 and Sumer "'-->-·
(not examined by the prosecution). (d) He stated, "We had picked up Daya
Nand from the spot on our hands. Our clothes had got blood stained in
this process". He further stated, "I had not shown my blood stained clothes
G to the police. I had changed my clothes before leaving for Bhiwani."

In the light of what is stated above, after deeper consideration, detailed
examination of evidence and probabilities of the case, in the light of the ...
arguments advanced by the learned counsel on either side, we have no
H hesitation in holding that the Sessions Court as well as the High Court have
SOHAN v. STATE OF HARYANA [SHNARAJ PATIL, J.] 319
concurrently and manifestly erred in convicting and sentencing the accused. A
, In a case like this it is our duty to interfere with the impugned judgment and
order to do substantial justice.

Under these circmnstances and in view of the discussion made above,
we have no hesitation in holding that the prosecution has failed to establish
the guilt of the accused beyond reasonable doubt. Hence we set aside the B
judgment and order of the Sessions Court as affirmed by the High Court.
Accordingly, these appeals are allowed and the accused are acquitted and their
bail bonds shall stand discharged.

V.S.S. Appeals allowed.
c