Supreme Court: In an appeal filed against the conviction and sentence of the appellant, the three judges bench of M.C Mahajan, Chandrasekhara Aiyar* and N.H. Bhagwati, JJ., opined that the evidence provided by the two eye witnesses was so shifty and treacherous that no one could be hanged on its strength. The Supreme Court further opined that the testimony of the witnesses who contradicted themselves in this manner, not in respect of immaterial particulars, but with regard to the very commission of the offence and who gave one version at one stage and wholly different at another stage could command no credit whatever. Accordingly, the Supreme Court allowed the present appeal and set aside the conviction and sentence of the appellant.
In the instant case, the deceased was a Harijan by caste and a few weeks before the occurrence of the murder, there was dispute between the deceased and the appellant regarding the rights of Harijan to drink water from Bania well. On 17-3-1951, when the deceased was going to the railway station from his village, he was set upon by five Jats, where the appellant and Bhagwana were armed with guns and the rest three had lathis. The appellant and Bhagwana fired at the deceased, after which he fell down fatally injured. The two individuals who witnessed the incident, went to the village and informed others including daughter of the deceased. Thereafter, one of the witnesses went to the police station and gave a report.
The Magistrate discharged the three assailants who had lathis in their hand, however, the appellant along with Bhagwana were convicted of an offence and were sentenced to death by Additional Sessions Judge, Rohtak. Subsequently, an appeal was filed in the High Court, wherein Bhagwana was acquitted but the appellant was convicted and his sentence was confirmed. Thus, the appellant filed the present appeal.
Analysis, Law, and Decision
The Supreme Court opined that undoubtedly, there were two gunshot wounds on the deceased, but it was not clear that those wounds were the result of two separate shots. As per the medical witness, the first wound on the back of the deceased’s neck was fatal and the second injury was elongated, charred, gunshot wound on the right shoulder was probably due to the sliding of the bullet. Further, no second bullet was recovered from the spot, and this rendered it probable that the two injuries were caused by only one gunshot wound.
The Supreme Court opined that the eyewitnesses had stated that both of them fired at the deceased and only one gunshot wound was proved fatal and there was nothing in the evidence to show that it was caused the appellant and not Bhagwana, thus, the appellant could not be convicted of murder, when Bhagwana had been acquitted unless the joint criminal liability provided under Section 34 of the Penal Code, 1860 (‘IPC’) was invoked.
The Supreme Court opined that in the present case, there was no charge against them was made under Section 34 of IPC was made. The charge against them was under Section 302 and Section 149 of the IPC, because there were five persons involved in the crime and since three were discharged and only, two survived to face the trial. The Supreme Court opined that there was a distinction between Section 34 and 149 of the IPC in their applicability and Section 34 required proof of common intention, while Section 149 stated the need for a common object. Though a common intention might be inferred from conduct and circumstances, because it was not always capable of positive proof, still it must be gathered with certainty and it must also be found that the common intention was to perpetrate the crime actually committed.
The Supreme Court opined that if it was assumed that there were two separate gunshot wounds fired, it was not possible to know which of them was responsible for the fatal injury. The appellant’s conviction rested on the two eye-witnesses, who later on swore in their affidavits before a Magistrate that they did not witness the murder of the deceased and the accused were innocent and their previous statements were due to pressure from the brotherhood of their community. The eye-witnesses stated that the twinges of conscience pricked them and as innocent people should not be hanged and they came forward with the truth in their affidavits. The Supreme Court opined that the vacillation displayed by the two witnesses were taken into account by the High Court to acquit Bhagwana and the only reason any regard was not paid to the appellant was because of his previous quarrel with the deceased.
The Supreme Court opined that the evidence provided by the two eye-witnesses was so shifty and treacherous that no one could be hanged on its strength. The Supreme Court further opined that the testimony of the witnesses who contradicted themselves in this manner not in respect of immaterial particulars, but with regard to the very commission of the offence and who gave one version at one stage and wholly different at another stage could command no credit whatever.
Accordingly, the Supreme Court allowed the present appeal and set aside the conviction and sentence of the appellant.
[Chattar Singh v. State of Punjab, (1952) 2 SCC 189, decided on 23-10-1952]
Note: Credibility of witnesses under the Evidence Act, 1872
Section 155 of the Evidence Act, 1872 provides the ways in which the credit of a witness may be impeached by the adverse party or with the consent of the Court, by the party who calls him. The credit of the witness may be impeached by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of the credit or by a proof that the witness has been bribed or has accepted the offer of a bribe, or has received any corrupt inducement to give his evidence. Section 155(3) of the Evidence Act, 1872 also provides that a proof of former statements is inconsistent with any part of his evidence which is liable to be contradicted.
*Judgment authored by- Justice Chandrasekhara Aiyar
Advocates who appeared in this case :
For the Appellant: J.G. Sethi, Senior Advocate (R.L. Kohli, Advocate, with him);
For the Respondents: Gopal Singh, Advocate