2010(1) LAW HERALD (P&H) 171 (SC)
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Aftab Alam
The Hon’ble Dr. Justice B.S. Chauhan
Criminal Appeal Nos. 133-134 of 2009
Hari Kishan
v.
State of Haryana
{Decided on 06/01/2010}
For the Appellant : Mr. J.L. Gupta, Sr. Advocate, Ms. Nidhi Gupta, Ms. S. Janani, Advocates.
For the Respondent : Mr. Alok Sangwan, Mr. Devashish Bharuka, Mr. Lokinder Singh, Mr. Rishad Choudhary Advocates.
Indian Penal Code, 1860, S.302 and 323--Arms Act, Section 25--Murder--Acquittal--Appellant gave knife blow on the left side of chest of victim-Death was caused due to shock and hemorrhage as a result of injury no. 1 which was ante-mortem in nature-conviction of the appellant solely on the testimony of PW-2 whose credibility as an eye-witness based on the assumption that he had received injuries in the same occurrence in which victim was killed--Trial Court convicted and sentenced appellant to imprisonment for life and further convicted 3 co-accused under Section 323 for causing simple injuries to PW-2 and victim’s uncle but acquitted 2 co-accused on doubt of their presence with appellant--High Court affirmed the orders of the trial Court--Appeal--According to the medical evidence, injuries on PW-2 were caused on the evening previous to the morning of June 24, when victim was killed in the alleged occurrence--Highly unsafe to uphold and sustain the appellant’s conviction for the offence of murder--Judgments of the High Court and trial Court, set aside.
ON FACTS;
In the face of the medical evidence and the admitted position that an incident between the two sides had taken place on the evening of June 23, 1995 it is difficult to accept that the injuries found on the person of Harkesh were received by him in the morning of June 24. From this, either of two inferences would logically follow. One, Harkesh was not present at the occurrence in which Dinesh was killed in the morning of June 24; or the other, the occurrence in which Dinesh was killed did not take place in the morning of June 24 and he was not killed in the manner as suggested by the prosecution. Both the inferences are equally damaging to the prosecution case.
Substantial part of the prosecution story has been disbelieved and the conviction of the appellant rests solely on the testimony of Harkesh (PW-2) who does not seem to have particular respect for truth as observed by the trial court. His credibility as an eye witness lay only in that the trial court and the High Court assumed that he had received injuries in the same occurrence in which Dinesh was killed. As shown above that assumption does not appear to be very sound and is not borne out by the evidences on record. In such a situation, we find it highly unsafe to uphold and sustain the appellant’s conviction for the offence of murder. (Paras 26 , 29 & 30)
