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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1624-1625   OF  2013

HARBEER  SINGH …       APPELLANT(S)

:Versus:

SHEESHPAL  & ORS. …    RESPONDENT(S)

WITH

CRIMINAL APPEAL NOS.217-218   OF  2013

STATE OF RAJASTHAN …       APPELLANT(S)

:Versus:

SHEESHPAL  & ORS. …    RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These appeals, by special leave, are directed against the

judgment and order dated 25th November, 2011, passed by the

High Court of Judicature for Rajasthan, Jaipur Bench, Jaipur,

in  D.B.  Criminal  Appeal  No.290/1995  and  D.B.  Criminal

Appeal  No.375/1995,  whereby the  High Court  has  quashed

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and  set  aside  the  conviction  of  the  accused  respondents.

Criminal Appeal Nos.1624-1625 of 2013 are filed by the son of

the deceased and Criminal  Appeal  Nos.217-218 of 2013 are

filed by the State of Rajasthan challenging the acquittal order

passed by the High Court.   

2. The brief facts of the case as unfolded by the prosecution

are as follows: On 21.12.1993, at 7.55 P.M., Bhagwara Ram

(PW-8),  the  brother  of  the  deceased  Balbir  Singh,  gave  a

written  report  at  P.S.  Kotwali  Sikar,  stating  that  on

21.12.1993  in  the  evening  at  about  6.00  P.M.,  when  his

younger brother Balbir (deceased) was returning to his house,

two men were standing near the Dhaba of Shankar and he

started talking to them. In the meantime, Sheeshpal (son of

Khuba Ram) came from the side of Sikar driving his Jeep and

with an intention to kill, hit Balbir and dragged him upto the

Dhaba of Suresh as a result of which Balbir died on the spot.

The owner of the Dhaba – Suresh Kumar chased them on his

motorcycle.  It was further stated that the act was committed

by Sheeshpal in furtherance of his old enmity with Balbir in

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connivance with Bhanwarlal, Dhanvir, Mangal (sons of Khuba

Ram)  and Bhanwarlal’s  brother-in-law Nemichand and Shiv

Bhagwan of Village Gothura Tagalan. It is also mentioned in

the written report that at the time of the incident, Sheeshpal

was driving the jeep and Nemichand, Shiv Bhagwan, Rajendra

and  Prakash  were  with  him  in  the  Jeep  and  it  is  not

mentioned that Bhanwarwal was present in the jeep or at the

place of occurrence. The names of Dhanvir and Mangal were

dropped later on.  

3. The  Police  registered  a  case  under  Section  302 of  the

Indian Penal Code and began investigation. Formal FIR was

registered, place of  occurrence was inspected, site plan was

prepared,  post-mortem  of  the  dead  body  was  done,

Panchnama of  the dead body was prepared and the vehicle

used in the crime along with number plate of the vehicle and

broken parts  was  seized.  Statements  of  the  witnesses  were

recorded and during investigation accused persons were taken

into  custody.  After  completion  of  the  investigation,  accused

Bhanwar Lal was declared absconding. Charge sheet was filed

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against the accused persons before the learned Magistrate and

the case was committed to the Sessions Court for  trial.  On

Bhanwar Lal’s presence, his case was also committed as above

and both the cases were amalgamated and trial commenced.

Charges  under  Sections  149,  302,  120B  of  the  IPC  were

framed against all the accused persons except Bhanwar Lal.

Accused Bhanwar Lal was charged under Sections 302, 120B

of IPC. All the accused persons pleaded ‘not guilty’ and hence

they  were  tried  by  the  Court  of  Sessions.  The  Trial  Court

convicted  the  accused  persons  and  sentenced  them  to  life

imprisonment under Section 302 read with Section 149 of the

IPC.  They  were  also  sentenced  severally  under  various

sections.  

4. Aggrieved by the judgment and order dated 17.06.1995,

passed by the Trial Court, the accused persons filed appeals

before  the  High  Court  of  Judicature  for  Rajasthan,  Jaipur

Bench, Jaipur. The High Court allowed the appeals, set aside

the  judgment  and  order  passed  by  the  Trial  Court  and

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acquitted all  the accused persons.  Hence, these appeals,  by

special leave, are filed before this Court.  

5. We have  heard  the  learned  counsel  appearing  for  the

Appellant  as  also  the  learned  counsel  appearing  for  the

Respondents and perused the oral and documentary evidence

on record.

6. The Trial Court convicted the accused relying upon the

successful  establishment  of  the  following  facts  by  the

prosecution:

(a) Death  of  the  deceased  due  to  unnatural  reasons

vide the evidence of PW4 (medical jurist who conducted

the  post-mortem  of  the  deceased),  Ext.  P-12

(post-mortem report),  Ext.  P-15  (Panchnama),  and  the

evidence of PW8 (complainant);

(b) Hatching  of  criminal  conspiracy  to  commit  the

murder of the deceased by accused Bhanwar Lal along

with Sheespal, Nemi Chand, Shiv Bhagwan and Rajendra

Kumar vide the evidence of PW3 and PW9;

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(c) Existence of enmity between accused persons and

the deceased;

(d) Formation of an unlawful assembly by the accused

Sheeshpal, Nemichand, Shiv Bhagwan, Rajendra Kumar

and Prakash having  the  common object  of  committing

the  murder  of  the  deceased vide the evidence of  PW8,

PW1, PW5, PW6 and PW11;

(e) Use  of  force  and  violence  in  furtherance  of  the

common  object  by  using  vehicle  RJ–23-C-0203  of

Sheeshpal and commission of the offence defined under

Section 300, fourthly, of IPC.

7. However, the High Court gave the benefit of doubt to the

Respondents  and  acquitted  them  on  the  ground  that  the

prosecution  was  not  able  to  prove  its  case  beyond  all

reasonable doubt since the eye-witnesses were interested in

the  complainant  and  hence  unreliable,  while  most  other

prosecution witnesses were chance witnesses. The evidence of

the eye-witnesses both as to the fact of the alleged conspiracy

and the murder of the deceased, did not inspire confidence;

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there were inconsistencies and improvements in the deposition

of  the  prosecution  witnesses  made  over  their  statements

recorded  under  Section  161  Cr.P.C.  Further,  there  was

unexplained  delay  in  recording  the  evidence  of  certain

prosecution witnesses as well  as many important and basic

lapses  in  investigation  that  made  the  prosecution  case

suspicious.

8. Before proceeding with an analysis of various contentions

raised by the parties or expressing opinion on the appreciation

and findings of fact and law recorded by the Courts below, we

wish to reiterate the scope of interference by this Court in a

criminal  appeal  against  acquittal  under  Article  136  of  the

Constitution of India.  

9. In  Himachal  Pradesh  Administration  Vs.  Shri  Om

Prakash, (1972) 1 SCC 249, it was held by this Court:

“In  appeals  against  acquittal  by  special  leave under Article 136, this Court has undoubted power to interfere with the findings of  fact, no distinction being  made  between  judgments  of  acquittal  and conviction,  though in the case of  acquittals it will

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not  ordinarily  interfere  with  the  appreciation  of evidence  or  on  findings  of  fact  unless  the  High Court ‘acts perversely or otherwise improperly’.”

10. The above principle has been reiterated by this Court in a

number  of  judicial  decisions  and  the  position  of  law  that

emerges from a comprehensive survey of these cases is that in

an appeal under Article 136 of the Constitution of India, this

Court will not interfere with the judgment of the High Court

unless  the  same  is  clearly  unreasonable  or  perverse  or

manifestly illegal or grossly unjust. The mere fact that another

view could also have been taken on the evidence on record is

not a ground for reversing an order of acquittal. [See State of

U.P. Vs. Harihar Bux Singh & Anr., (1975) 3 SCC 167; State

of Uttar Pradesh Vs. Ashok Kumar & Anr., (1979) 3 SCC 1;

State of U.P. Vs. Gopi & Ors., (1980) Supp. SCC 160; State

of Karnataka Vs. Amajappa & Ors., (2003) 9 SCC 468; State

of Uttar Pradesh Vs. Banne @ Baijnath & Ors., (2009) 4 SCC

271; State of U.P. Vs. Gurucharan & Ors., (2010) 3 SCC 721;

State of Haryana Vs. Shakuntla & Ors., (2012) 5 SCC 171

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and Hamza Vs. Muhammadkutty @ Mani & Ors., (2013) 11

SCC 150].

11. It is a cardinal principle of criminal jurisprudence that

the guilt of the accused must be proved beyond all reasonable

doubt. The burden of proving its case beyond all reasonable

doubt  lies  on  the  prosecution  and  it  never  shifts.  Another

golden  thread  which  runs  through  the  web  of  the

administration of justice in criminal cases is that if two views

are possible on the evidence adduced in the case, one pointing

to the guilt of the accused and the other to his innocence, the

view which is favourable to the accused should be adopted.

[Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC

808;  State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180;

Chandrappa & Ors. vs. State of Karnataka,  (2007) 4 SCC

415;  Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC

124 and  Golbar  Hussain  & Ors.  Vs.  State  of  Assam and

Anr., (2015) 11 SCC 242].

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12. Keeping in mind the aforesaid position of law, we shall

examine the arguments advanced by the parties as also the

evidence and the materials on record and see whether in view

of the nature of offence alleged to have been committed by the

Respondents, the findings of fact by the High Court call for

interference in the facts and circumstances of the case.

13. It  has  been  submitted  by  the  learned  counsel  for  the

Appellant  that  the  High  Court  had  erred  in  ignoring  the

prosecution evidence which conclusively proved the guilt of the

accused persons who had conspired to kill the deceased in a

garb of accident.  Further, the High Court had also erred in

reversing  the  conviction  of  the  accused  persons  despite

presence of sufficient evidence which indicated involvement of

all the accused persons and a complete chain of incriminating

circumstances proved by the prosecution.

14. Per contra, the learned counsel for the Respondents has

primarily  reiterated  the  reasons  that  found favour  with  the

High Court in recording an order of acquittal in favour of the

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Respondents  viz.  failure  of  prosecution  to  prove  beyond

reasonable  doubt  that  the  accused  persons  Bhanwarlal,

Sheeshpal,  Nemichand and Shiv  Bhagwan hatched criminal

conspiracy at the Dhani of Sheeshpal at around 7-8 p.m. on

19.12.1993  and  that  the  prosecution  case  suffered  from

contradictions,  discrepancies  and  inconsistencies  and,  in

particular, that the testimony of eye witnesses did not inspire

confidence due to the reasons recorded by the High Court.

15. We have given careful consideration to the submissions

made by the  parties  and we are inclined to  agree with the

observations of the High Court that PW3 and PW9 were not

witnesses  to  the  alleged  conspiracy  between  the  accused

persons since not only the details of the conversation given by

these two prosecution witnesses were different but also their

presence  at  the  alleged  spot  at  the  relevant  time  seems

unnatural in view of the physical condition of PW9 and the

distance  of  Sheeshpal’s  Dhani  from Sikar  road.  Besides,  it

appears that there have been improvements in the statements

of PW3. The Explanation to Section 162 Cr.P.C. provides that

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an omission to state a fact or circumstance in the statement

recorded by a police officer under Section 161 Cr.P.C.,  may

amount to contradiction if the same appears to be significant

and otherwise relevant having regard to the context in which

such omission occurs and whether any omission amounts to a

contradiction in the particular context shall be a question of

fact. Thus, while it is true that every improvement is not fatal

to  the  prosecution  case,  in  cases  where  an  improvement

creates a serious doubt about the truthfulness or credibility of

a witness, the defence may take advantage of the same. [See

Ashok Vishnu Davare Vs. State Of Maharashtra,  (2004) 9

SCC  431;  Radha  Kumar  Vs.  State  of  Bihar  (now

Jharkhand), (2005) 10 SCC 216; Sunil Kumar Sambhudayal

Gupta (Dr.) & Ors. Vs. State of Maharashtra, (2010) 13 SCC

657 and  Baldev Singh Vs. State of Punjab, (2014) 12 SCC

473].  In our view, the High Court had rightly considered these

omissions as material omissions amounting to contradictions

covered by the Explanation to Section 162 Cr.P.C. Moreover, it

has also come in evidence that there was a delay of 15-16 days

from the date of the incident in recording the statements of

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PW3 and PW9 and the same was sought to be unconvincingly

explained by reference to the fact that the family had to sit for

shock meetings for 12 to 13 days. Needless to say, we are not

impressed by this  explanation and feel  that  the High Court

was right in entertaining doubt in this regard.

16. As regards the incident of murder of the deceased, the

prosecution has produced six eye-witnesses to the same. The

argument raised against the reliance upon the testimony of

these witnesses pertains to the delay in the recording of their

statements by the police under Section 161 of Cr.P.C. In the

present case, the date of occurrence was 21.12.1993 but the

statements of PW1 and PW5 were recorded after two days of

incident,  i.e.,  on  23.12.1993.  The  evidence  of  PW6  was

recorded  on  26.12.1993  while  the  evidence  of  PW11  was

recorded  after  10  days  of  incident,  i.e.,  on  31.12.1993.

Further,  it  is  well-settled  law  that  delay  in  recording  the

statement of the witnesses does not necessarily discredit their

testimony. The Court may rely on such testimony if they are

cogent  and  credible  and  the  delay  is  explained  to  the

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satisfaction  of  the  Court.  [See Ganeshlal  Vs.  State  of

Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of

W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors.,

(2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma

vs. State (NCT of Delhi), (2010) 6 SCC 1].

17. However,  Ganesh  Bhavan  Patel  Vs.  State  Of

Maharashtra,  (1978)  4  SCC  371, is  an  authority  for  the

proposition that  delay  in  recording  of  statements  of  the

prosecution  witnesses  under  Section  161  Cr.P.C.,  although

those  witnesses  were  or  could  be  available  for  examination

when the Investigating Officer visited the scene of occurrence

or soon thereafter, would cast a doubt upon the prosecution

case.  [See also Balakrushna  Swain  Vs.  State  Of  Orissa,

(1971)  3  SCC  192;  Maruti  Rama  Naik  Vs.  State  of

Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State

of  Punjab,  (2005)  3  SCC  68].  Thus,  we  see  no  reason  to

interfere with the observations of the High Court on the point

of delay and its corresponding impact on the prosecution case.

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18. Further,  the High Court has also concluded that these

witnesses were interested witnesses and their testimony were

not  corroborated  by  independent  witnesses.  We are  fully  in

agreement  with  the  reasons  recorded  by  the  High Court  in

coming to this conclusion.

19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 =

1964 (7) SCR 397, this Court was of the opinion that a related

or interested witness may not be hostile to the assailant, but if

he is, then his evidence must be examined very carefully and

all  the infirmities must be taken into account.  This is what

this Court said:

“There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the  evidence  of  the  interested  witnesses,  like  the relatives of the victim, very carefully........But where the witness is a close relation of the victim and is shown  to  share  the  victim’s  hostility  to  his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness  very  carefully  and  scrutinise  all  the infirmities  in  that  evidence  before  deciding  to  act upon  it.  In  dealing  with  such  evidence,  Courts naturally begin with the enquiry as to whether the

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said  witnesses  were  chance  witnesses  or  whether they were really present on the scene of the offence. …..If the criminal Court is satisfied that the witness who  is  related  to  the  victim  was  not  a chance-witness,  then  his  evidence  has  to  be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised.”   

20. However,  we  do  not  wish  to  emphasise  that  the

corroboration by  independent  witnesses  is  an indispensable

rule in cases where the prosecution is primarily based on the

evidence of  seemingly interested witnesses. It  is well  settled

that it is the quality of the evidence and not the quantity of the

evidence which is required to be judged by the Court to place

credence on the statement.  

21. Further, in  Raghubir Singh  Vs. State of U.P., (1972) 3

SCC 79, it has been held that the prosecution is not bound to

produce all the witnesses said to have seen the occurrence.

Material  witnesses  considered necessary  by  the  prosecution

for  unfolding the prosecution story alone need be produced

without  unnecessary  and  redundant  multiplication  of

witnesses. In this connection general reluctance of an average

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villager  to  appear  as  a  witness  and get  himself  involved  in

cases of rival village factions when spirits on both sides are

running high has to be borne in mind.

22. The High Court has further noted that there were chance

witnesses whose statements should not have been relied upon.

Learned  counsel  for  the  Respondents  has  specifically

submitted  that  PW5 and  PW6 are  chance  witnesses  whose

presence at the place of occurrence was not natural.  

23. The  defining  attributes  of  a  ‘chance  witness’  were

explained by Mahajan, J., in the case of Puran Vs. The State

of Punjab, AIR 1953 SC 459.  It was held that such witnesses

have  the  habit  of  appearing  suddenly  on  the  scene  when

something is happening and then disappearing after noticing

the occurrence about which they are called later  on to give

evidence.

24. In  Mousam Singha Roy and Ors.  Vs. State  of  W.B.,

(2003)  12  SCC  377,  this  Court  discarded  the  evidence  of

chance  witnesses  while  observing  that  certain  glaring

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contradictions/omissions in the evidence of PW2 and PW3 and

the absence of their names in the FIR has been very lightly

discarded  by  the  Courts  below.  Similarly,  Shankarlal  Vs.

State of Rajastahan, (2004) 10 SCC 632, and Jarnail Singh

& Ors. Vs. State of Punjab, (2009) 9 SCC 719, are authorities

for the proposition that deposition of a chance witness, whose

presence at the place of incident remains doubtful, ought to be

discarded.  Therefore,  for  the  reasons  recorded  by  the  High

Court we hold that PW5 and PW6 were chance witnesses and

their statements have been rightly discarded.

25. In the light of the above and other reasons recorded by

the High Court, we hold that the evidence of the eye witnesses

is  not  truthful,  reliable  and  trustworthy  and  hence  cannot

form the basis of conviction.  Their presence at the scene of

occurrence at the time of the incident is highly unnatural as

also their ability to individually and correctly identify each of

the accused from a considerable distance, especially when it

was dark at the alleged place of occurrence, is itself suspect.

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26. Besides these, the prosecution has also been unable to

convincingly connect the jeep of the accused Sheeshpal with

the incident beyond reasonable doubt. Further, owing to other

lapses in investigation, as recorded by the High Court, we are

convinced that the prosecution has been unable to prove its

case beyond all reasonable doubt. The view taken by the High

Court in the facts and circumstances of the case appears to be

a reasonably plausible one.  

27. Thus, in the light of the above discussion, we are of the

view that the present appeals are devoid of merits, and we find

no ground to interfere with the judgment passed by the High

Court. The appeals are, accordingly, dismissed.  

….....….……………………J (Pinaki Chandra  Ghose)

….....…..…………………..J (Amitava Roy)

New Delhi; October 20, 2016.