The learned
counsels appearing on behalf of both the parties have argued at
length on the merits of the case and the point of law in question. The said ambiguity
in the impugned point of law, caused by the conflicting decisions of the two
High Courts, has the potential to cause great harm to the fundamental rights
of accused persons presently dealing with similar litigations, and future
accused persons who might also have to deal with similar
litigations. In such a scenario, wherein such a length of time has been devoted
by the parties and the court, this court sits100 in a unique position wherein it
is equipped with all the necessary knowledge to clear the said ambiguity.
If such120 an opportunity to clear the said ambiguity is not exercised by
this court, it would so happen that, at some point in the future, this
court would again be tasked with answering the same question of law, for which,
a great length of time would again be spent by the court, to complete the same
task which could have been dealt with at an earlier time.
Such a lack of
exercise of its jurisdiction by the court would not only200 increase the burden on the pendency
of matters, but will also subject litigants from across the country to
further pendency. It is therefore imperative that this court, at this
instance, remedy such a mischief, to save the court and future240 litigants from multiplicity
of proceedings and mischief caused by such ambiguity.
In so far as maintainability
of the present writ petition on grounds of deviation from the initial
prayer is concerned, it has been held in a catena of judgments that
this Court, under writ jurisdiction, is not bound by the relief sought and
can go beyond the original relief300 in order to meet the ends of justice. Further, in such a
situation where there is a conflict of opinion on a legal issue between two
High Courts, mere technical objections cannot be allowed to stand in the way of
exercising our powers conferred by way of Article 32 of the
Constitution of India.
The present appeal
is by360 accused no. 2.
The appellant has challenged the judgment and order dated 12th January
2009 of the Punjab and Haryana High Court by which appeal preferred by the
appellant and accused No.1 against the order of conviction by400 the Sessions Court has been
dismissed.
The Sessions Court
convicted the appellant and accused no. 1 for the offences punishable under
Section 302 read with Section 34 of the Indian Penal Code and Sections
449 and 324 read with Section 34 of Indian Penal Code. The appellant and
accused no.1 were sentenced to suffer life imprisonment for the offence
punishable under Section 302 read with Section 34.
For the480 offence under Section 449 read
with Section 34, they were directed to suffer rigorous imprisonment for
seven500 years. For the
offence punishable under Section 324 read with Section 34 of Indian Penal Code,
they were sentenced to undergo rigorous imprisonment for one year. Both
the appellant and the accused no. 1 Rinku preferred appeal before the High
Court which has been dismissed by the impugned judgment.
First Information
Report was registered on the basis of the statement of PW1, Rahul who
was 11 years old at the relevant time. He is the youngest of three sons of the
deceased Renu and Satpal. According to the prosecution's case, on 30th
December 2002, Rahul600 and his mother were sleeping in their house by locking their
house from inside. Rahul's elder brother was staying in Ghaziabad for education
and his second brother had gone to stay with his maternal uncle. Rahul's father
Satpal was working as priest of a temple, and he was residing near the
temple. He was not residing with the deceased. According to the
prosecution's case, at about 1 am, PW1 Rahul heard the noise of his mother. When
he woke up, he saw that accused nos. 1 and 2 were grappling with his mother.
Accused no.1 Rinku by knife inflicted 6700 to 7 blows on the stomach and chest of the deceased. At that
time, accused no. 2 was holding the720 hands of his mother. When Rahul tried to rescue his mother,
accused no. 1 inflicted injuries on him with the same knife.
Thereafter, both
the accused fled away. They had entered the house through a window and they
went back through the same window. According to Rahul, he was hiding in the
house due to fear. At about 5 am, when a milkman, who is described as Golu
by PW6, came to the house, Rahul came out and disclosed to800 the said milkman that the
accused had murdered his mother with a knife. The said milkman reported the
incident to Rahul's uncle Rajan Singh who came to the site. Thereafter, Rahul's
father Satpal also came. An injured Rahul was taken840 to hospital where his statement
was recorded. Based on his statement, First Information Report was registered.
The learned
counsel for the appellant has taken us through the
evidence of the material prosecution witnesses. He submitted that evidence of Rahul
will have to be tested very carefully, as he is a minor witness.
He pointed out that there is absolutely no900 corroboration to the testimony of
the minor witness which is full of material contradictions and improvements.
He submitted that evidence of PW1 Rahul is not reliable. He pointed out that according
to the prosecution's case, Rahul did not disclose the incident till early
morning to anyone. He disclosed it for the first time to the milkman
Golu who came to his house around 5 am. In fact, PW6 also claims that he
heard the said milkman saying that the deceased has been murdered. He submitted
that the prosecution has not examined the milkman, which is fatal to the
prosecution case.1000 He has submitted that the presence of Rahul at the time of
the incident is extremely doubtful. He submitted that there was
complete darkness in the house at the relevant time and therefore, it
was not possible for the witness Rahul to see the accused. He urged that
there is every possibility that the witness Rahul was tutored. In
any event, he submitted that a very limited role has been ascribed to the
appellant of holding the hands of the1080 deceased while accused no.1 assaulted her with a knife.
The learned
counsel appearing for the State while supporting the impugned1100 judgments submitted that there is
no rule that for maintaining a conviction on the sole testimony of a
minor witness, corroboration is necessary. He submitted that alleged contradictions
and improvements in the testimony of minor witness Rahul are totally insignificant
which do not make his evidence unreliable. He would, therefore, submit
that no interference is called for with the view taken by both Courts.1164
