Jagdish and Another vs The State of Haryana

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, 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 husband PW-8 and ‘P’ 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 went to the police station at 3.00 A.M, a kilometer away, to lodge the F.I.R. while her husband and ‘P’ 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 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 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 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]

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 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 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, 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 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 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 – 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, (1974) 4 SCC 603 : [1974] 3 SCR 863 – referred to.