Full Judgment Text
2023 INSC 905
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.421 OF 2011
DHARMA @ DHARAM SINGH & ANR. ... APPELLANT(S)
VS.
STATE OF HARYANA ... RESPONDENT(S)
J U D G M E N T
Abhay S.Oka, J.
Heard the learned counsel appearing for the parties.
2. This is an appeal against the order of conviction
of the appellants who are accused Nos.1 and 2. The
appellants were convicted by the Trial Court for the
offence punishable under Section 302 read with 34 of the
Indian Penal Code (for short "IPC"). The allegation
against them was of intentionally committing murder of
one Sarabjit Singh who was the Sarpanch of the concerned
rd
village. The incident is of 23 June, 1992. The order
Signature Not Verified
of conviction by the Trial Court has been affirmed by the
Digitally signed by
Anita Malhotra
Date: 2023.10.12
16:49:06 IST
Reason:
impugned judgment of the High Court. We may note here
Criminal Appeal No.421 of 2011 Page 1 of 5
th
that this Court by the order dated 9 July, 2012 enlarged
the appellants on bail by noting that they have already
undergone incarceration for a period of about eight
years.
3. As the Advocate-on-Record of the appellants was
elevated as a Judge of a High court, notice for making
alternative arrangement was issued to both the
appellants. Notice was served to the second appellant,
but could not be served to the first appellant for want
of complete address. Therefore, the appeal as far as the
first appellant is concerned has been dismissed for non-
prosecution. This being an appeal against conviction,
the case of the first appellant on merits has to be
examined. Therefore, the order dismissing the appeal qua
appellant No.1 is recalled. We requested the learned
counsel appearing for the second appellant to assist us
for dealing with the appeal of the first appellant. He
has readily agreed.
4. PW-2-Sukhi and PW-3-Rattan Singh are the only two
alleged eye witnesses. As far as PW-3 is concerned, he
did not support the prosecution and therefore, he was
declared as hostile.
Criminal Appeal No.421 of 2011 Page 2 of 5
5. So far as the version of PW-2 who is the first
informant is concerned, he stated that he along with the
deceased had gone to a place known as Chainsa. On the
return journey, they got down from the bus at Mohna. The
incident occurred around 8.00 to 8.30 p.m., when they
were near a tubewell. According to him, four persons
emerged out of bushes. One of them abused the deceased.
The first appellant fired a shot at the deceased. The
appellants dragged the deceased towards the field on the
left side and thereafter, fired two shots. The witness
further stated that he cannot tell the name of the
persons who had fired shot at the deceased.
6. Assuming that PW-2 really knew the appellants
before the incident and he had seen the appellants while
firing shots at the deceased, we find that PW-2 did not
identify the accused who were present in the Court as the
accused who killed the deceased. In fact, the
examination-in-chief of the PW-2 shows that the witness
has not identified the accused who were present in the
Court as there is no such statement in the examination-
in-chief. A witness who claims to be an eye witness must
be in a position to identify the accused in the Court.
Criminal Appeal No.421 of 2011 Page 3 of 5
7. With a view to ascertain whether Annexure P-4 is
the correct reproduction of the deposition of PW-2, we
have perused the original deposition of PW-2 from the
record of the Trial Court and we find that even the
original deposition does not record that the PW-2
identified the accused in the Court.
8. Assuming that PW-2 had seen the appellants firing
shots at the deceased, unless the said eye witness
identifies the accused as Dharma and Parkash, the
prosecution cannot establish that the accused who were
prosecuted were guilty of the offence. As stated
earlier, the only other eye witness PW-3 was declared as
hostile.
9. Therefore, this is a case where the eye witness has
not identified both the accused in the Court. In the
circumstances, the appellants could not have been
convicted in the absence of their identification by the
eye witness before the Court.
10. Hence, the appeal is allowed. The impugned
th
judgment dated 30 May, 2008 passed by the Division Bench
rd
of the High Court and dated 23 October, 1998 passed by
the Sessions Judge, Faridabad, Haryana are hereby quashed
and set aside and the appellants are acquitted for the
offences alleged against them.
Criminal Appeal No.421 of 2011 Page 4 of 5
11. As both of them have been enlarged on bail, their
bail bonds stand cancelled.
..........................J.
(ABHAY S.OKA)
..........................J.
(PANKAJ MITHAL)
NEW DELHI;
October 05, 2023.
Criminal Appeal No.421 of 2011 Page 5 of 5