LexHARI KISHAN versus STATE OF HARYANA
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A B [2010] 1 S.C.R. 134 HARi KISHAN v. STATE OF HARYANA (Criminal Appeal Nos.133-134 of 2009) JANUARY 6, 2010 [AFTAB ALAM AND DR. B.S. CHAUHAN, JJ.) Penal Code, 1860: c ss.302 and 324 - Conviction of one of the seven accused ulss 302 and 324 and three others uls 323 - Testimony of the witness who claimed to have received injuries in the same incident in which deceased was killed - Held: Trial court has observed about the witness that he did 0 not seem to have particular respect for truth and that he had mixed up falsehood with truth - Assumption drawn by trial court and High Court that the witness had received injuries in the occurrence is not borne out by evidence on record - A substantial part of prosecution story has been disbelieved by trial court - Presence of three of the accused and two other E eye witnesses at the place of occurrence was doubted by trial court - Medical evidence at clear variance with ocular vision - In such a situation, it would be highly unsafe to uphold and sustain appellant's conviction - Accordingly, he is acquitted giving him benefit of doubt - Evidence - Credibility of eye F witness - Medical evidence at variance with ocular vision - Effect. The appellant along with six others was prosecuted for commission of offences punishable ulss 148, G 302,324,323 read with s.149 and s.506 IPC. The prosecution case, based on the statement made by PW- 2 to the police in the hospital where he had taken the dead body of his younger brother 'D' (deceased) at 7.20 A.M. on 24.6.1995, was that at about 6.15 A.M. the H 134 HARi KISHAN v. STATE OF HARYANA 135 appellant and other accused attacked 'D'; two of the A accused gave lathi blows on his back and as he fell down, the appellant gave a knife blow on left side of his chest; that accused 'R' also gave knife blows to him. PW- 2 further stated that when he and his uncle tried to save 'D', accused 'R' gave a knife blow. on his left hand thumb B and two other accused gave him 4-5 lathi blows. His uncle was also stated to have received a lathi blow on his head. As to the cause of the incident, PW-2 stated that as his other brother, PW-6, who had been elected as Village Sarpanch, did not pay any heed to unreasonable c demands of accused persons, an altercation took place between both the sides the previous evening, but the matter was then patched up. The post-mortem examination of the body of 'D', which was conducted at 12.45 p.m. on 24.6.1995, indicated one stab wound on the 0 left side of the chest as the cause of death, and the 3. other injuries as post-mortem in nature. The trial court convicted and sentenced the appellant u/ss 302 and 324 IPC. Three other accused were convicted and sentenced u/s 323 IPC. The remaining three were acquitted of all the E charges. By a separate judgment, the appellant was also convicted u/s 25 of the Arms Act and was sentenced to the period already undergone. The High Court upheld the judgments of the trial court. Aggrieved, the appellant filed Crl. Appeal No.133/2009 challenging his conviction and sentence u/ss 302 and 324 IPC and Crl. Appeal No.134/ F 2009 challenging his conviction u/s 25 Arms Act. Allowing Crl.A.No.133/2009, and dismissing Crl.A.No.134/2009 as not pressed, the Court ·HELD: 1.1. The trial court doubted the presence of . PW-4 and PW-6 at the place of occurrence and did not accept their testimonies as eye witnesses. According to G the prosecution, the occurrence in which the deceased was killed took place shortly after 6.15 in the morning of H 136 SUPREME COURT REPORTS [2010] 1 S.C.R. A June 24, 1995. PW-2 was medically examined at 7.10 and his companion at 7.15 am, that is to say, within an hour when the wounds/injuries on their person would be very fresh. But, according to the medical evidence, injuries on PW-2 were caused on the evening previous to the B morning of June 24. This takes away the basis on which he was accepted by the trial court and the High Court as an eyewitness notwithstanding his proclivity to mix up falsehood with truth. A substantial part of the prosecution story has been disbelieved and the conviction of the c appellant rests solely on the testimony of PW-2 who, as observed by the trial court, does not seem to have particular respect for truth and had mixed up falsehood with truth. His credibility as an eye witness lay only in that the trial court and the High Court assumed that he had 0 rec
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