Sunil Kumar vs State

Brijesh Sethi, J

The appellant has filed the present appeal under section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C') against the impugned judgment and order on sentence both dated 20th May, 1994, in Session Case No. 55/1994, arising out of FIR No.69/1993, registered at Police Station - Jahangir Puri.; whereby the learned Trial Court has convicted the accused Sunil Kumar (hereinafter referred to as the 'appellant') for rigorous imprisonment for life.

Before going into the merits of the present appeal, it is relevant to recapitulate the brief facts of the present case as mentioned in the impugned judgment and the same are as follows:

" 2. The substance of the prosecution case is that on receipt of D.D. No. 21 dated 18.3.1993, the Investigating Officer alongwith his staff went to Hindu Rao Hospital where MLC pertaining to one Amar Singh, son of Sher Sigh was obtained through ASI Kanti Prasad. Thereafter, statement of one Ranbir Singh was recorded and on the basis of which formal FIR was registered. According to the said statement of Ranbir Singh, he was a resident of Sant Nagar near village Burari where Amar Singh son of Sher Singh, was also residing for the last 12/13 years and whom he know very well. Said Amar Singh had to take back a sum of Rs. 5000/- from Sunil Kumar, resident of A-386, Jahangir Puri and for this purpose Amar Singh had visited him 3 or 4 times. However, Sunil had been evading the payment. It was on March, 18, 1993 at about 7 P.M. that he along with Amar Singh and Gopi Ram went to the house of Sunil to take back the amount. Sunil Kumar made them sit in the house. Sometime later Kishan @ Laddoo son of Babu Lal also arrived in the the house of Sunil. All of them knew each other since earlier. Sunil sent for liquor to drink which was consumed and Sunil asked to play cards and they started playing cards. During playing the cards, Amar asked Sunil for his money, which resulted into altercation between the two. Thereafter, he alongwith Amar and Gopi came out of the house of Sunil and started for their house at about 11 P.M. When they reached infront of House No. A-600 of the main road of Jahangir Puri from behind Laddu and Sunil came on a motor-cycle no. DL-3S-80466 Yamaha of silver colour. Laddu stopped the motor-cycle near them at about 11.05 P.M. and both of them got down. Sunil thereafter asked Amar to stop and where he was going and that he will settle (sic) the score of money on that day because he comes daily to demand back his money, due to which, he is denigrated in the mohalla. He told Laddu that he had been stopped for the said work and his work is to be done completely. At this Laddu told Sunil as to what he was seeing, he be caught. At this, Sunil caught hold of Amar from behind and Kishan @ Laddu took out a knife (sic) from his pant and gave blow on his stomach. When he and Gopi tried to save and raised noise and Amar fell down on the pavement, Laddu also gave a blow on him which landed on this chadder which he tried ward (sic) of the knife blow with his left hand, due to this, his left palm was cut. Thereafter, both of them fled from the spot on their motor- cycle. Due to knife blow, intestine of Amar came out. He and Gopi, both removed Amar in injured condition in a three wheeler. On way one constable Ashok Kumar met, who accompanied and got Amar admitted in Hindu Rao Hospital. But there Amar was declared as brought dead.

After recording the formal FIR, case was investigated and only Sunil accused was arrested. After completion of investigation, challan was filed against him. After committed to the court of Sessions, he was formally charged for the offences under section 302 read with section 34 IPC., and under section 324 read with section 34 IPC. He pleaded not guilty to the charge and claimed trial. Needless to say that he was charged alongwith Kishan @ Laddu being the proclaimed offender."

Initially a charge under Section 302/34 IPC was framed against the appellant on 18.08.1993. On 22.10.1993 further a charge under Section 324/34 IPC was added against the appellant to which appellant had pleaded not guilty and claimed trial. Kishan @ Laddu was declared proclaimed offender. The prosecution in support of its case had examined 18 witnesses, out of which PW-11 Gopi Nath and PW-16 Ranbir Singh are star witnesses. PW-11 Gopi Nath did not support the prosecution case. Statement of accused was recorded and after hearing arguments, Learned Additional Session Judge, Delhi vide impugned judgment dated 20th May, 1994, convicted appellant Sunil Kumar for the offence punishable under section 302/34 IPC and Section 324/34 IPC and vide order of the same date i.e. 20th May, 1994, he was sentenced to undergo imprisonment for life and a fine of Rs.3000/- under Section 302/34 I.P.C. and in default of fine to undergo R.I. for a period of one year, and for the offence under Section 324 read with Section 34 I.P.C., he was sentenced to one year of rigorous imprisonment and a fine of Rs.500/- and in default of payment of fine rigorous imprisonment for one month. All the sentences were ordered to be run concurrently.

Learned counsel for the appellant has challenged the impugned judgment on several points but his main thrust of arguments was firstly, on the point that learned Trial Court has erred in convicting the appellant as out of alleged two eye witnesses, PW-

11 Gopi Nath who is brother-in-law of the deceased Amar Singh has resiled from his statement and deposed that nothing happened in his presence and has not supported the prosecution case and another eye-witness, PW-16 Ranbir Singh has given a different version in his deposition as PW-3 before the Court regarding the same incident, in the trial of co-accused Kishan @ Laddu and secondly, on the point that since co-accused Kishan @ Laddu was acquitted for the offences under Section 302/34 IPC as well as Section under 324/34 IPC, therefore, the appellant cannot be convicted for the said offence. Learned counsel for the appellant has further submitted that co-accused Kishan @ Laddu was declared proclaimed offender and was arrested later on and was tried separately vide case bearing no. Sessions Case No. 85/95 titled State v. Kishan Lal. In the said case, Ranbir Singh was examined as PW-3 but he did not identify Kishan @ Laddu as being the assailant who had caused stab injuries to deceased Amar Singh and he further deposed that he did not know the name of the person who had given knife blow to the deceased. Since there was no other evidence against Kishan @ Laddu, he was acquitted by the Ld. Trial Court vide Judgment dated 22nd May, 1997.

Learned counsel for the appellant has lastly argued that in view of the subsequent development i.e. acquittal of Kishan @ Laddu vide Judgment dated 22nd May, 1997 and coupled with the fact that there was no independent charge under Section 302 IPC either against the appellant Sunil Kumar or against his co-assailant Kishan @ Laddu. Both were charged under Section 302/34 IPC as well as under Section 324/34 IPC. He has further argued that the element of sharing the common intention by appellant Sunil Kumar and his co-assailant was the core of the charge. Since co-accused i.e. Kishan @ Laddu has been acquitted, appellant Sunil Kumar cannot be convicted for the offences under Section 302/34 IPC and 324/34 IPC. He has, thus, argued that conviction of the appellant is bad in law as held by the Hon'ble Supreme Court in catena of its judgments. Learned counsel for the appellant has, therefore, argued that learned Trial Court erred in convicting the appellant by totally ignoring the evidence appearing on record and also by not applying its mind to the fundamental principles of law.

Per contra, learned Additional Public Prosecutor for the State has submitted that there is no infirmity in the impugned judgment passed by the learned Trial Court and no interference is called by this Court. It was argued that the prosecution has proved commission of the offence with the help of statement of witnesses. It is further submitted that PW-16 Shri Ranbir is an eye witnesses to the incident and has seen the appellant committing the offence and keeping in view his consistent and cogent testimony, the learned Trial Court has rightly convicted the appellant. It is further submitted that since there are no contradictions or discrepancies in the statement of PW-16, the prosecution has proved its case beyond reasonable doubt.

We have considered the rival contentions and gone through the evidence appearing on record. A careful examination of the evidence appearing on record reveals that there are major contradictions in the testimonies of material witnesses which renders the prosecution version doubtful. Perusal of the record reveals that the prosecution case was primarily based upon the testimony of PW-16 Shri Ranbir Singh, who is one of the eye-witness to the incident. It may be noted that the other eye-witness PW-11 Gopi Nath has not supported the prosecution version and has categorically stated that nothing had happened in his presence. This Court would first examine the trustworthiness of the testimony of PW-16 Ranbir Singh in this case. His examination-in-chief dated 24.03.1994 before the Court is being reproduced hereunder for appreciating the arguments advanced by the learned counsel for the appellant and learned Additional Public Prosecutor for the State and it runs as follows:-

"PW-16 Sh. Ranbir Singh S/o. Sh. Dariao Singh, aged 31 years, Three-wheeler Driver, R/o. Gali Mandir Wali, Sant Nagar, Burari, Delhi.

on S.A.

I know Amar Singh who was my friend. He was residing in Sant Nagar in Gali Batra Wali. I knew him for the last 12-13 yrs. I know the accused present in the court who is Sunil Kumar.

The accused had taken a sum of Rs. 5,000/- from Amar Singh. Amar Singh was demanding back his money from the accused time and again. I also accompanied Shri Amar Singh on many occasion for demanding the money back, but the accused was avoiding the payment on one pretext or the other. On 18th March, 1993 at about 7.00 P.M. I along with Amar Singh and Gopi Ram went to the house of the accused Sunil Kumar at Jahangirpuri. The accused was available at his house. We had talks with him for some time and thereafter, the accused brought liquor and we consumed the same along with Laddu who also came there. Thereafter, we started playing cards. While playing, Amar Singh demanded his money from the accused Sunil Kumar and some altercation took place between Amar Singh (sic) and the accused for some time on the money. Thereafter, I and Gopi brought Amar Singh from his house and we proceeded towards our own houses. We started from the house of the accused at 11 P.M. and while we were in A-Block, the accused came along with Laddu who was driving the motor cycle, on the motor cycle and abused and asked Amar that he will settle his account on that very date. Accused Sunil caught hold of Amar Singh and the accused Laddu got the motor cycle on stand. The accused asked Laddu that he should come and settle the matter with Amar Singh. Laddu took out a knife from his pocket and gave blow on the person of Amar Singh injuring his stomach on the right side. I immediately rushed for the rescue of Amar Singh, who fell down. Laddu also gave blow of knife on me which hit me on my Chaddar (Lohi) which I had on that day. There were cut marks on the Chaddar of the knife. The knife also hit me on the left palm on the hand, when I tried to save Amar Singh. I also raised hue and cry. The intestines of Amar Singh had come out of his stomach on account of the knife blows by the Laddu. Both the accused fled away on the motor cycle which was driven by the accused Sunil Kumar. In the meanwhile, a three- wheeler scooter came there and we gave signal to stop the same and took the injured in the scooter. On the way, a Constable also met us and we narrated the matter to him and he also accompanied us to Bara Hindu Rao Hospital. The injured was admitted in the said hospital and I was also medically examined from the said hospital. The Doctor had declared the injured Amar Singh as brought dead.

The police reached there after about one and half or two hours. The police recorded my statement in the hospital and the same is Ex.PW16/A which bears my signatures at Point A. My Lohi (Chaddar) was seized by the police and sealed in a parcel and taken into possession by me of Ex.PW12/A which bears my signatures. I can identify my Lohi. (At this stage, sealed parcel with the seal of court is permitted to be opened). Lohi is Ex.P2 which is having a cut mark. The police had also recorded my statement in the hospital when I identified the dead body of Amar Singh. The same is Ex.PW16/B, which bears my signatures at Point A. I have seen the Motor Cycle which is the same on which the accused had come and fled away from the spot. Motor Cycle is Ex.P.1. The accused Laddu is not present in the court today. I can identify him if he is shown to me. (Accused Laddu is P.O.) Subsequently, I had pointed the place of occurrence to the police personnel, who had inspected the spot. Chaddar Ex.P2 belongs to me, and I had covered my body with it. (Emphasis supplied)

The statement of PW-16 Ranbir Singh reveals that he has specifically named Kishan @ Laddu and categorically deposed that he had stabbed deceased Amar Singh whereas appellant Sunil Kumar had caught hold of the deceased. Co-accused Kishan @ Laddu was declared proclaimed offender and later, when he was arrested, a separate trial vide Sessions Case No. 85/1995 was conducted against him. He was, however, acquitted by the Learned Trial Court vide Judgment dated 22nd May, 1997. PW Ranbir Singh and PW Gopi Nath, the alleged eye-witnesses, were also examined by the prosecution in Sessions Case No. 85/1995 as PW-3 and PW-13 respectively. Deposition of PW-3 Ranbir Singh dated 06.01.1997 before the Court in Sessions Case No. 85/95 runs as follows:-

"PW-3 Ranbir Singh s/o. Darayo Singh, aged 35 years, Business, r/o. Sant Nagar Gali Mandir Wali near Burari. Delhi on S.A. I knew the deceased Amar Singh as he used to reside in my neighbourhood. I do not know the accused Kishan Lal present in court today. But I knew the other co-accused Sunil Kumar who has been convicted in this case. Accused Sunil Kumar used to live in Jahangir Puri. Deceased Amar Singh was to take Rs. 5,000/- from accused Sunil Kumar. Which he had given him as loan amount. On 18.03.1993, it was 7.00 p.m., I alongwith deceased Amar Singh and Gopi Ram had gone to the house of accused Sunil Kumar to take back the amount of Rs. 5,000/- from him, at the instance of deceased Amar Singh. When we reached Jahangirpuri accused Sunil Kumar met us there in his house. He then arranged for whisky at his house and we all started taking drinks there and thereafter we started playing cards. When we were drinking, one another person had also come there. The said man had come after about half an hour when we were consuming drink. The deceased Amar Singh demanded the loan amount from Sunil Kumar. Hot words were exchanged between the deceased Amar Singh and accused Sunil Kumar. At about 10.30 or 11.00 p.m. we came out from the house. When we had covered a few distance, the accused Sunil Kumar called back the accused deceased Amar Singh. At that time he was accompanied by someone else. The accused Sunil Kumar and the said person had come on a motor cycle. I do not remember the number of the motor cycle. Accused Sunil then caught hold of deceased Amar Singh and stated that he would spare his account and the another person who accompanied accused Sunil gave a knife blow to Amar Singh on his chest. When I was helping deceased Amar Singh from accused Sunil and other person, I also sustained injury on my palm of the left hand, inflicted by the co-accused of Sunil with the knife. Deceased Amar Singh fell down having received the knife blow and thereafter we removed deceased Amar Singh to Hindu Rao Hospital on a three-wheeler scooter and at that time I was accompanied by Gopi Ram and one police official who had met us there on our way to Hindu Rao Hospital. The doctor there declared the deceased Amar Singh to be dead. Police reached the hospital and I was interrogated and my statement was recorded and I identify my signature on my statement Ex.PW2/A (already exhibited as Ex.PW16/A) and my signatures appears at point 'A'. I was also medically examined at the hospital. I do not know what was the name of the person who had given knife blow to the deceased. (At this stage learned Addl. PP request to cross-examine the witness as he is suppressing the truth and is resiling from his previous statement. Heard. Allowed).

XXXX by Learned Addl. PP. I have studied upto 5th class. I know Hindi. Police had recorded my statement on my dictation and thereafter I had put my signatures on Ex.PW2/A. That statement was read over to me by the police. It is incorrect to suggest that when we had come out of the house of Sunil, Sunil was accompanied by one person with the name of Laddoo who had come to us. I have not stated the facts in my statement. Confronted with portion A to A of his statement Ex.PW2/A where this fact has been recorded. It is incorrect to suggest that I have stated the number of motor cycle on which accused Sunil and Laddo had come there as DL-3S-BO 446, confronted with portion B to B of his statement Ex.PW2/A where it is so recorded. It is correct that accused Sunil has stated in sarcastical manner that he would spare his accounts as he had been coming there regularly to demand the amount of Rs. 5,000/-. I cannot say that the accused present in the court today was the said person known as Laddoo who was accompanying the accused Sunil Kumar and had caused knife blow on the person of deceased Amar Singh. It is correct that after receiving the knife blow, the intestines of the deceased Amar Singh had come out. I had sustained 3-4 knife blow at the hands of the other person accompanying accused Sunil Kumar and it is also correct that my 'chader' which I was wearing bore cut marks of the knife. It is incorrect to suggest that knife blows are given to me by the accused present in the court today. It is incorrect to suggest the name of the accused present in the court is Kishan Lal @ Laddoo. It is incorrect to suggest that I had specifically mentioned the name of Laddoo in my statement Ex.PW2/A who had given the knife blows to me and also to Amar Singh. Confronted with portion C to C of his statement where this fact has been recorded. It is correct that after the incident of stabbing had taken place we raised alarm and thereafter accused Sunil and the other accused accompanying him ran away from there.

Police has seized my chader which I was wearing at the time of incident and which was having cut marks and I can identify. I had also participated in the inquest proceeding of deceased Amar Singh and I had also identified the dead body of Amar Singh. I Identify mysignature on the inquest proceeding Ex.PW2/B (already exhibited as Ex.PW15/C at point 'A') and my statement with regard to the inquest proceeding was also recorded which is Ex.PW2/C (already exhibited as PW16/B and I identify my signature at point 'A').

It is correct that my statement was recorded earlier in this court in this case, on 24.03.1994, that was given before the court of Smt. Aruna Suresh, Addl. Sessions Judge, Delhi. I do not remember if in the earlier statement before the court I had given the name of the other person as Laddoo. It is incorrect to suggest that I am deposing falsely to save the accused present in the court today as I had been won over by him. The chaddar is Ex.P1 it belongs me and at the time of wearing.

XXXXX by Shri Vipin Chander, Adv. counsel for the accused.

Nil. opportunity given.

(Emphasis supplied)

Thus, the witness PW-3 Ranbir Singh in Sessions Case No. 85/1995 has totally resiled from his earlier statement so far as identity of co-accused Kishan @ Laddu is concerned, and has showed his ignorance about his role. However, it may be noted that in Ex.PW2/A (already exhibited as Ex.PW16/A) , i.e. the statement given by PW-3 Ranbir Singh to the police which was duly signed by him and on the basis of which FIR was registered, he has specifically named Kishan @ Laddu. The translated version of the said statement Ex.PW16/A runs as under;

Statement of Ranbir Singh S/o. Dario Singh R/o. Gali Mandir Wali, Sant Nagar, Burari, Delhi, aged 32 years.

It is submitted that I am residing at abovementioned address and am resident of PS Baroda, Tehsil Gawahan, Sonipat, Haryana. Amar Singh S/o. Sher Singh was R/o. District Katwa, Jammu & Kashmir, Tehsil Ballore, Village Ull and was residing with his family at Gali Batra Wali, Sant Nagar, Burari for the last12-13 years. I know him very well. Amar Singh had to take an amount of Rs. 5000/- from Sunil Kumar R/o. A-386, Jahangir Puri, Delhi. Amar Singh used to visit Sunil Kumar frequently for the return of his money. I had also accompanied Amar Singh 3-4 times, but Sunil Kumar used to avoid the payment on one pretext or the other. On 18.03.1993 at 7 PM I along with Amar Singh and Gopi Nath had gone to the residence of Sunil Kumar in Jahangir Puri for return of Amar Singh's money. Sunil Kumar asked us to sit down in his home. After some time Kishan @ Laddu S/o. Babu Lal R/o. Moti Nagar also came at the house of Sunil Kumar. We already knew each other. Sunil had arranged for liquor which was consumed by all of us. Sunil asked us to play cards. Thereafter we all started playing cards. While playing cards, Amar asked Sunil for his money due to which an argument ensued between them. All three of us i.e. myself, Amar and Gopi, left the house of Sunil at about 11 PM and proceeded towards our house. When we reached house no. A-600, A Block, Main Road, Jahangir Puri, at about 11.05 PM, at that time Laddu and Sunil came on a silver colored Motor-cycle DL 3SB 0446 from behind and Ladoo stopped his motor-cycle near us. Both of them got down and Sunil asked Amar to stop and said where are you going. Today I would settle your account, because you keep asking for the money every day as a result of which I am humiliated in my locality and thereafter Sunil told Laddu that I have stopped you for this purpose only and he should be finished today. Laddu asked Sunil what are you waiting for, catch hold of this "haramzada". Thereafter, Sunil caught hold of Amar from behind and Kishan @ Laddu took out knife from his pant and stabbed Amar Singh on his stomach. Amar fell down on the footpath after getting stabbed and Laddu also gave knife blows to me. Gopi & I tried to save Amar and also raised hue and cry. He (Laddu) gave three knife blows on my 'chaddar' and I then stopped the knife blows with my hand as a result of which I sustained injuries on my left wrist. Thereafter, Laddu and Sunil ran away from the spot on their motor-cycle. Due to knife blows to Amar his intestine had come out. Gopi and I had taken Amar in an injured condition in three-wheeler to the hospital.On our way to the hospital, we had met one constable named Ashok and we asked him to accompany us to the hospital to admit Amar Singh and we admitted him in Hindu Rao Hospital. Doctor declared him brought dead. I had also got myself medically examined. With the intention of killing Amar, Kishan @ Ladoo and Sunil Kumar had stabbed Amar with knife and murdered him and also injured me. Legal proceedings be initiated against both of them. The statement written by you has been read over to me and is correct. (Emphasis supplied.)

In the above statement, Ranbir Singh has categorically stated that Kishan @ Laddu had stabbed the deceased. Thus, this witness has not only resiled from his statement Ex.PW16/A, but also from his deposition given in Court in Sessions Case No. 55/1994 as PW-16 on 24.03.1994. In the opinion of this Court, it will be highly unsafe to rely upon the statement of Ranbir Singh to hold the appellant guilty for the offences charged as the contradictions appearing in the statements go to the root of the matter and renders the prosecution version unbelievable.

Let us now examine the statement of the other eye witness to the incident i.e. PW-11 Gopi Nath. He has not supported the prosecution case at all. His deposition dated 13.01.1994 before the learned Trial Court in Sessions Case No. 55/1994 runs as follows;

Statement of PW-11 Gopi Nath S/o. Ghansham Dass, aged 32 years, driver R/o. H-3/62, Sultanpuri, Delhi.

'Deceased Amar Singh was my brother in law (Sandoo). He was residing in Sant Nagar Burari. On 19-3-1993 I came to know that my brother-in-law Amar Singh has been murdered. Ranbir was friend of Amar Singh and he along with constable came to my residence. Nothing happened in my presence. (At this stage Ld. APP requests to cross-examine the witness as he is suppressing the truth).

The witness was, thus, declared hostile and was thoroughly cross-examined by learned Addl. Public Prosecutor for the State. However, in his cross-examination he has denied the fact that on 18.03.1993. He had gone to meet Amar Singh and consequently denied the factum that appellant had caught hold of the deceased Amar Singh and co-accused Kishan @ Laddu had stabbed him with knife.

Statement of Gopi Nath was also recorded on 25.02.1997 as PW-13 in Sessions Case No. 85/1995 titled State v. Kishan Lal, when co-accused Kishan @ Laddu, who was declared a proclaimed offender was arrested and a separate trial was conducted against him. The said statement runs as follows;

"PW-13 Gopi Nath Sharma s/o. Ghansham Sharma, aged 45 years, Service, r/o. H-3/62, Sultanpuri, Delhi on S.A.

'The deceased was my Sadu. His name was Amar Singh. I do not know about the incident. When this incident had taken place, I was out of Delhi. When I returned to Delhi about three years back, the date I do not remember. I was informed by my servant, that my Sadu Amar Singh had expired. I immediately left my vehicle there and went to my house and I was informed by my wife who had identified the dead body of Amar Singh about his death. Next day I also joined the investigation with the police. I do not know anything about this case. The police and one Ranbir Singh had told me that Amar Singh has been murdered by Kishan Lal. (At this stage, Ld. Addl. PP requests to cross-examine the witness as he is suppressing the truth and is resiling from the previous statement. Heard. Allowed.)

In the above statement also PW-13 Gopi Nath was declared hostile and thoroughly cross-examined by learned Addl. Public Prosecutor for the State. However, in his cross-examination, he has denied the whole incident and also denied the fact that appellant Sunil had caught hold of deceased Amar Singh and co-accused Kishan @ Laddu had stabbed him.

Perusal of the above statements of both the eye-witness reveals that prosecution version is full of contradictions.

The question which now arises for consideration is whether deposition of PW-16 Ranbir Singh is of such a nature that conviction can be based upon his statement. No doubt conviction can also be based upon the sole testimony of an eye-witness provided his deposition should be such that it can be accepted by the Court without any hesitation i.e. it should be of sterling quality. The Hon'ble Supreme Court in Rai Sandeep @ Deepu v. State of NCT of Delhi, 2012 (8) SCC 21 in para no. 22 has observed as to who is a sterling witness and on whose deposition the Court can rely upon. The relevant para runs as follows;

"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness."

As discussed earlier, the statement of PW 16 Ranbir Singh is full of contradictions. He has given different version of the same incident in two different cases i.e. Sessions Case No. 55/1994 and Sessions Case No. 85/1995. In his first statement dated 24.03.1994, he has deposed that accused Sunil had caught hold of the hand of the deceased and accused Kishan @ Laddu had stabbed him. However, in his later statement as PW-3 dated 06.01.1997 he has resiled from the above fact and failed to name and identify Kishan @ Laddu in the Court who according to his earlier statement had stabbed the deceased. Thus, it cannot be said that statement of this witness is of sterling quality and on the basis of his deposition alone, appellant can be convicted for the offence charged.

Besides the above contradictions and discrepancies in prosecution version, there is another reason for which the appellant cannot be convicted for the offences charged. Perusal of the record reveals that prosecution has filed a chargesheet under Section 302/324/34 IPC against appellant Sunil as well as other co-accused Kishan @ Laddu. Accused Sunil was first sent for trial since co-accused Kishan @ Laddu was declared proclaimed offender. Let us see the charge framed by learned trial Court against appellant Sunil on 18th March, 1993 and additional charge on 22nd October, 1993. The same runs as follows:-

'IN THE COURT OF MS ARUNA SURESH:ADDL SESSIONS JUDGE: DELHI

S.C. No. 22/93

State

v.

Sunil Kumar

CHARGE.

I, Aruna Suresh, Addl Sessions Judge, Tis Hazari Courts, Delhi, do hereby charge you Sunil Kumar son of Shri Ramesh Chand, aged 28 years, r/o A-386, Jahangirpuri, presently H. No. 390, Pocket H-3, Sector 16, Janta Flats, Rohini, New Delhi, as follows:-

That on 18.03.93, at about l1-05 P.M. at A Block, Main Road, near Patri near house No.A-600,Jahangirpuri,Delhi within the jurisdiction of P.S, -Jahangirpuri, you along with your co-accused Krishan alias Laddoo son of Sh. Babu Lal r/o B-11, Nihal Vihar, who is P.O., you both in furtherance of common intention committed murder by causing death of Amar Singh and thereby committed an offence u/s 302 IPC read with sec.34 IPC and within the cognizance of this Court.

And I hereby direct that you be tried by this Court on the aforesaid charge.

Addl. Sessions Judge, Delhi

18.03.1993

The charge has been read over and explained to the accused and he is questioned as under:-

Q. Do you plead guilty or claim trial?

Ans. I plead not guilty and claim trial.

RO&AC

18.03.1993 Addl. Sessions Judge, Delhi

ADDED CHARGE

STATE VS. SUNIL KUMAR

I, Aruna Suresh, Addl. Sessions Judge, Delhi, charge you (Sunil Kumar son of Sh. Ramesh Chand) R/o 386, Jahangir Puri) as follows:-

That on 18/3/93, at about l1-05 PM at A Block, main road near Patrinear House No. A-600, Jahangirpuri, Delhi within the jurisdiction of Police Station, Jahangirpuri (sic), you along with your co-accused Krishan @ Laddoo son of Sh.Babu Lal r/o B-11, Nihal Vihar, who is Proclaimed Offender, you both in-furtherance of common intention voluntarily caused simple injuries with sharp object i.e. knife to Sh. Ranbir Singh and thereby committed an offence punishable under Section 324 read with Section 34-IPC and within the cognizance of this Court.

I hereby direct that you be tried by this Court for the above-said offence.

RO&AC ASJ:Delhi

22/10/1993

Charge is read over and explained to the accused to which he is questioned as follows:-

Q. Do you plead guilty or claim trial?

A. I plead not guilty and claim trial.

Q. Do you want to recall PW-1? A.. No.

RO&AC

22-10-1993

ASJ: Delhi

Perusal of the above charge (including the added charge) reveals that appellant was charged for the offences under Section 302 read with Section 34 IPC and Section 324 read with Section 34 IPC and no substantive charge under Section 302 IPC was framed against him.

Let us now examine the charge framed against co-accused Kishan @ Laddu who was arrested later in time and was acquitted for the offence charged in Sessions Case No. 85/1995. The charge framed by the learned Trial Court dated 9th January, 1996 runs as follows:-

'IN THE COURT OF SHRI V.K. MALHOTRA:

ADDL SESSION JUDGE; DELHI

SC no. 22/93 St. v/s Kishan Lal

CHARGE

I, V.K.Malhotra, Addl. Sessions Judge, Tis Hazari Courts, Delhi, do hereby charge you Kishan Lal s/o Sh. Babu Lal, as follows:-

That on 18.3.93, at about l1-05 P.M. at A Block main road near Patri near H. No. A-600, Jahangirpuri within the jurisdiction of PS Jahangirpuri you along with your co-accused Sunil Kr. in furtherance of your common intention committed murder by causing death of Amar Singh and thereby committed an offence punishable U/S. 302 IPC r.w. 34 IPC and within the cognizance of this court.

Secondly, on the said day time and place you along with your coaccd. Sunil Kumar in furtherance of your common intention voluntarily caused simple injuries with knive to Ranbir Singh and thereby committed an (sic) offence punishable U/S 324 r.w. 34 IPC and within the cognizance of this court.

And I hereby direct that you be tried by this Court on the aforesaid charge.

ASJ/9.1.96

The charge has been read over & explained to the accd. and he is questioned as under:-

Q. Do you plead guilty or claim trial?

A. I plead not guilty and claim trial.

RO&AC ASJ/9.1.96

Perusal of the above charges reveals that co-accused Kishan @ Laddu was also charged for an offence under Section 302 read with Section 34 IPC and Section 324 read with Section 34 IPC. Thus, both the accused persons were charged for harbouring a common intention of causing the death of deceased Amar Singh and causing hurt by dangerous weapon to Ranbir Singh. No substantive charge was framed against any of the accused under Section 302 IPC. It is a settled law that whenever accused persons are charged for harbouring common intention and all but one stand acquitted, the other accused cannot be convicted for the same charge. In the present appeal before this Court, there is no charge against the appellant that he had independently committed the murder of deceased Amar Singh. Since co-accused Kishan @ Laddu has been acquitted for the offence under Section 302/324/34 IPC, there is no question of convicting the appellant under Section 302/34 IPC for the simple reason that element of sharing the common intention by the co-accused was the core of the charge. The Co-ordinate Bench of this Court has also taken a similar view in Saddak Hussain v. State (NCT of Delhi), (2019) 260 DLT 523 (DB) In the said case, the accused namely Prateek, Prashant, Kamal & Saddak Hussain were charged for an offence under Section 302/34 IPC. However, learned Trial Court had acquitted all the other three accused persons except appellant Saddak Hussain and convicted him under Section 302 IPC. The Co-ordinate Bench after relying upon number of judgments of Hon'ble Supreme Court acquitted the appellant on the ground that since all the accused persons were charged for harbouring common intention and if three of them stood acquitted, the appellant cannot be convicted for the substantive offence as there was no independent charge framed against him for the substantive offence u/s. 302 IPC. The following decisions of Hon'ble Supreme Court were relied upon by the Co-ordinate Bench for arriving at the above conclusion:

(i) Nanak Chand v. State of Punjab, AIR 1955 SC 274

(ii) Suraj Pal v. State of U.P., AIR 1955 SC 419

(iii) Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413

(iv) Baul and Another v. State of U.P., AIR 1968 SC 728

(v) Subran @ Subramanian v. State of Kerala, (1993) 3 SCC 32

(vi) State of West Bengal v. Vindu Lachman Das Sakhrani @ Deru, 1995 SCC (Crl.) 175

(vii) Nallabothu Venkaiah v. State of A.P., (2002) 7 SCC 117

(viii) Koppula Jagdish @ Jagdish v. State of A.P., (2005) 12 SCC 425

The gist of the law laid down by the Hon'ble Supreme Court in the above cases is that if co-accuseds stand acquitted for an offence involving common intention, then other co-accused cannot be held guilty for the offences charged since common intention is basis of the charge.

Now coming to the present appeal, it is clear that co-accused Kishan @ Laddu stands acquitted for the offences under Section 302/324/34 IPC, the necessary corollary that follows is that the appellant, also cannot be held guilty for the offence under Section 302/34 IPC as well as under Section 324/34 IPC.

In view of the fact that it is the bounden duty of the prosecution to prove its case beyond reasonable doubt and it has failed to do so in the present case as there are major contradictions in prosecution version and moreover, co-accused stands acquitted for the offences under Section 302/34 IPC & under Section 324/34 IPC, the judgment dated 20th May, 1994 passed by the learned Addl. Sessions Judge cannot be sustained in the eyes of law.

The appeal, therefore, succeeds and is allowed. The impugned judgment and order on sentence both dated 20thMay, 1994, passed by the learned Trial Court, whereby the appellant was convicted for the offences charged, are hereby set aside. The appellant is acquitted for the offences charged. Bail Bonds and Surety Bonds executed by the appellant, stands discharged. The appellant shall fulfill the requirements of Section 437-A of the Cr.P.C.

The record of the learned Trial Court be returned forthwith along with a copy of this judgment. The copy of the judgment be also sent to concerned Jail Superintendent.

The judgment be uploaded on the website of this Court forthwith.