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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1148 OF 2007

Joginder Singh … Appellant

Versus

State of Haryana …Respondent  

J U D G M E N T

Dipak Misra, J.

The present appeal under Section 379 of the Code of  

Criminal  Procedure,  1973  (for  short  “CrPC”)  is  directed  

against  the judgment of  conviction and order  of  sentence  

dated  9.5.2007  passed  by  the  High  Court  of  Punjab  and  

Haryana at Chandigarh in Criminal Appeal No. 702-DBA of  

1997  whereby  the  High  Court  has  partly  reversed  the  

judgment  of  acquittal  dated  9.6.1997  recorded  by  the

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learned Additional  Sessions Judge,  Kaithal  in Sessions Trial  

No.  15  of  1993  instituted  for  offences  punishable  under  

Sections  302 and 307 read with  Section  34 of  the Indian  

Penal Code (IPC) and under Sections 25 and 27 of the Arms  

Act against the appellant and two others and convicted the  

appellant alone under Section 302 IPC and sentenced him to  

undergo rigorous imprisonment for life.

2. Filtering  the  unnecessary  details  the  broad  

essential facts, as put forth by the prosecution, are  

that there was a dispute about the vacant plot of  

shamlat  land  where  the  complainant  and  his  

family  members  used  to  store  their  respective  

kurris (heap of rubbish). The said land was given  

to Guru Ravidass Mandir by the Gram Panchayat  

vide  resolution  dated  22.03.1989.  Accused  

Joginder  Singh  and  Mohinder  Singh,  both  real  

brothers  kept  on  asserting  their  ownership  over  

the said land and were not prepared to surrender  

it.  Both  the  accused  were  booked  twice  under  

sections 107 and 151 of CrPC relating to the said

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land.  On  15.11.1991  about  4:00  pm.,  Joginder  

Singh  parked  his  combine  harvester  on  the  

disputed land which was objected to by deceased  

Kamla wife of Chander, Murti, wife of Dharambir,  

Bala,  daughter  of  Sita  Ram  and  other  ladies  

present at  that time. But  Joginder  Singh did not  

pay  any  heed  to  the  objection  raised  by  the  

women,  and  abused  them.  In  the  meantime  

Chander, Dharambir, PW-3, and Mithan Singh, PW-

2, came outside and asked accused Joginder Singh  

not to park his combine harvester on the disputed  

land. At that juncture, Mohinder Singh and Anokh  

Singh,  nephew  of  the  accused,  arrived  at  the  

scene  and  all  of  them  started  abusing  the  

complainant  and  other  women.   The  initial  

altercation took a violent turn and both the parties  

grappled  with  each  other.   During  the  fight  

accused  persons  ran  away  to  their  houses  and  

returned  with  weapons.  Joginder  Singh  came  

armed with a DBBL .12 bore gun while the other

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two accused did not  bring any weapon.   As the  

prosecution story proceeds, both of them raised a  

‘lalkara’ in filthy language to kill the members of  

other side.  Accused Joginder Singh fired two shots  

from his gun pellets of which hit in the chest of  

Kamla and Bala and also in the chest and mouth of  

Mithan  Singh,  PW-2.   Accused  Mohinder  Singh  

snatched the  gun from Joginder  Singh and fired  

two  shots  that  hit  the  back  of  Bimla  and  the  

stomach  region  and  thigh  of  Murti.  The  injured  

persons  fell  down  on  the  ground  on  receipt  of  

gunshot  injuries.  After  hearing  the  gunshot  

number  of  villagers  came  to  the  place  of  

occurrence whereafter  the accused persons took  

to their heels.  Kamla succumbed to her injuries on  

the spot and her husband was asked to stay back  

to guard the dead body of his wife.  Pritam Singh,  

PW-1, Karambir,  Mamu Ram and others took the  

other injured persons in a vehicle to Civil Hospital,  

Kaithal.   Pritam Singh  went  to  Police  Station  to

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lodge the FIR and his statement was recorded by  

the Inspector of Police, Prem Chand, PW-16, and  

an FIR was registered at 8:30 pm.  

3. After  the  criminal  law  was  set  in  motion,  the  

investigating agency commenced the investigation  

and in course of investigation,  Prem Chand, PW-

16, prepared the inquest report, got the site plan  

done,  collected  the  blood-stained  earth  and  the  

pellets lying at the spot, sent the dead body for  

the post mortem and forwarded the articles to the  

Forensic  Science  Laboratory  for  examination,  

arrested the accused persons, recovered DBBL .12  

bore  gun  and  live  cartridges,  recorded  the  

statements  of  other  witnesses  and  after  

completing  all  other  formalities  laid  the  charge  

sheet for the offences punishable under Sections  

302 and 307 read with Section 34 IPC and Sections  

25 and 27 of the Arms Act before the competent  

court which, in turn, committed the same to the

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Court of Session.   The accused persons pleaded  

not guilty to the charges and claimed to be tried.

4. To  substantiate  the  charges  the  prosecution  

examined  as  many  as  16  witnesses.  The  main  

witnesses  are  Pritam  Singh,  PW-1,  the  

complainant, Mithan Singh, PW-2, Dharambir, PW-

3,  the eye witnesses to the occurrence,  Dr.  B.B.  

Kakkar, PW-4, who examined the injured,   Dr. A.K.  

Leel, PW-8, who had conducted the post-mortem  

and  also  had  examined  the  other  injured  

witnesses;  Zile  Singh,  PW-11,  Sarpanch  of  the  

Gram Panchayat and Inspector Prem Chand, PW-

16,  the  investigating  officer  of  the  case.   The  

prosecution had exhibited number  of  documents  

which  included  the  report  of  the  Chemical  

Examiner,  Ex.  P.TT  and  report  of  Serology,  Ex.  

P.TT/1 and report of Ballistic Expert, Ex. P.UU.    

5. The accused in  their  statements  recorded under  

Section  313  CrPC  denied  the  incriminating

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evidence appearing against them. They admitted  

that Joginder Singh and Mohinder Singh are real  

brothers  and  Anokh  Singh  is  their  sister’s  son.  

Accused Joginder Singh took the plea that he had  

been using the land where the combine harvester  

was  installed  since  long  and  the  Harijan  

community  wanted  to  forcibly  occupy  the  said  

land.  On the date of occurrence, people belonging  

to  Harijan  Community,  both  men  and  women,  

armed with fire-arms and other weapons came to  

his house and fired and he was compelled to hide  

himself in his house to save his life.  Persons of  

Harijan  community  started  firing  indiscriminately  

at his house where he was hiding.  In that process  

the injured and deceased received injuries.  He did  

not use his gun at all  nor was his gun taken by  

Mohinder  Singh at  any time.   Accused Mohinder  

Singh and Anokh Singh took the plea that they had  

no  concern  with  the  land  or  with  the  combine  

harvester and they were not present at the spot.  

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6. Learned Addl. Sessions Judge, Kaithal, considering  

the evidence brought on record, acquitted all the  

accused of  the  charges  under  sections  302  and  

307 read with Section 34 IPC and Sections 25 and  

27  of  the  Arms  Act  on  the  ground  that  the  

prosecution  had failed  to  prove its  case  against  

the  accused  beyond  all  reasonable  doubt.   To  

come to such a conclusion the learned trial Judge,  

after  due  perusal  of  the  evidence  and  material  

brought on record, took note of various aspects,  

namely,  a  litigation  was pending  as  regards  the  

possession  between  the  Guru  Ravidass  Mandir  

Sabha  and  the  accused  persons  and  the  

complainant had nothing to do with the land; that  

there had been dispute between Joginder Singh on  

one hand and Harijan community on the other with  

regard to the plot which is situate in front of the  

house  of  Joginder  where  the  alleged  occurrence  

had taken place; that after coming from Pakistan  

the  father  of  the  accused  Joginder  Singh  had

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settled in the village at the very site; that a Civil  

Suit  No.  191  of  1990   titled  as  “Guru  Ravidass  

Sabha  Sangan  vs.  Joginder  Singh  and  Mohinder  

Singh” was filed in the Court of Civil Judge, Senior  

Division, Kaithal and an interim order of stay was  

passed in favour of the Sabha which was vacated  

by order dated 15.3.1991 directing the parties to  

maintain  status  quo  till  the  decision  of  the  suit  

and,  eventually,  the  suit  was  dismissed  on  

24.10.1994 for  want  of  prosecution;  that  though  

some  resolutions  were  passed  by  the  Gram  

Panchayat in favour of the Guru Ravidass Sabha,  

yet the land was in possession of Joginder Singh  

and  there  was  no  record  that  Panchayat  had  

delivered  possession  to  anyone;  that  the  

complainant, Pritam Singh, PW-1, was concealing  

the truth from the court inasmuch as he denied  

the obvious fact reflectible at a mere glance of the  

photographs,  Exts.  DA  to  DC,  to  the  effect  that  

there were pellets marks on the wall of the house

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of  the accused;  that  Mithan Lal,  PW-2,  who had  

stated that he had received injury on his left eye  

and had lost  his  eye sight   though was able  to  

identify other things yet expressed his inability to  

identify the photographs Exts. DA to DC that show  

the house of the accused; that Zile Singh, PW-11,  

was an interested witness as Joginder Singh had  

got an enquiry conducted against him while Zile  

Singh was the Sarpanch of the village and he had  

deliberately  not  identified  the  house  of  the  

accused in  the photographs,  Exts.  DA to DC, on  

the ground that his eye sight was weak.   These  

findings  were  recorded  to  highlight  that  the  

accused-appellant was in possession of the land in  

dispute  and  the  members  of  the  Harijan  

community came armed with weapons to forcibly  

take possession.

7. The learned trial Judge thereafter addressed to the  

injuries sustained by various injured persons and  

found that the case that was put forth initially by

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the  prosecution  and  the  medical  report  were  

different and he did not think it prudent to believe  

such evidence.  He also noticed that there were  

irreconcilable discrepancies  between the weapon  

used and the injuries sustained.  He also noticed  

that Dr. Leel, PW-8, had sent a report, Ext. P2 by  

which he had sent two pellets recovered from the  

body of Murti in a sealed parcel to the SHO, Police  

Station, Sadar, but the serology report Ext. P.TT/1  

showed that there was no blood on the pellets and  

further the said witness had deposed that he had  

not put any identification mark on the pellets.   

8. Thereafter, the learned trial Judge, relying on the  

ballistic report, Ext. P.UU, opined that the .12 bore  

fired cartridges cases C1 to C4 were fired from a  

fire-arm but not from DBBB gun W/1, Ext 15, the  

weapon that was seized from the custody of the  

accused Joginder Singh.  He also took note of the  

fact that the ballistic report though referred to the  

mutilated pellets  that  had hit  the deceased,  yet

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did  not  give  any  opinion.   These  findings  were  

recorded to form an opinion that the members of  

Harijan  community  armed  with  weapons  were  

present at the spot and the injuries inflicted upon  

the deceased occurred in a different way than the  

one projected by the prosecution.   Being of  this  

view he found that the prosecution had failed to  

establish  its  case  beyond  reasonable  doubt  

against  the  main  accused  Joginder  Singh  and  

resultantly against the other accused persons also  

and, accordingly, acquitted all of them.

9. The  High  Court,  in  appeal,  enumerated  the  

reasons  of  acquittal  given  by  the  learned  trial  

Judge and thereafter came to hold that rejection of  

the  version  of  the  eye witnesses  was  not  valid;  

that  factum of  motive was of  no significance as  

there  was  direct  evidence  on  record;  that  the  

discrepancies  which  were  taken  note  of  by  the  

learned trial Judge were incorrect; that the learned  

trial Judge had misdirected himself by relying on

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the medical opinion when the account of the eye  

witnesses was credible and trustworthy; that the  

learned trial  Judge had not kept himself  alive to  

the principle that while appreciating the evidence  

that injuries when caused by fire-arms there can  

be variety of wounds depending upon the nature  

of fire-arm used, distance, direction, manner and  

other  factors;  that  the  trial  Judge  had  also  

erroneously  appreciated  the  nature  of  gunshot  

injuries,  for  such  appreciation  is  contrary  to  the  

medical  jurisprudence;  that  there  was  a  serious  

dispute  with  regard  to  possession  and  the  trial  

court  had  wrongly  presumed  the  factum  of  

possession; that the reason given that when the  

accused persons had left the place of occurrence it  

is a normal conduct of a person to go back to his  

house  is  contrary  to  the  acceptable  norms  of  

appreciation of evidence; that the pellet marks on  

the  wall  shown  in  the  photographs  do  not  

improbablise the version of the prosecution, more

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so,  when  none  of  the  accused  persons  were  

injured; that the discrepancy noted in the injuries  

sustained  by  Pritam  Singh,  PW-1,  was  

inconsequential; that there was no justification to  

reject the testimony of Zile Singh, PW-11, on the  

ground  that  he  was  inimically  disposed  towards  

the accused; that the nature of injuries sustained  

by  Dharambir,  PW-3,  should  not  have  been  

disbelieved  on  the  ground  that  the  nature  of  

weapon described was different; that the report of  

ballistic  expert  showed that  the  cartridges  were  

fired  from the  same weapon  but  not  from W-1,  

would not belie the prosecution version; and that  

the discrepancy of range of gun and distance of  

the injured as found by the learned Judge was not  

material.   After  unsettling  the  said  reasons  the  

High Court opined that the view expressed by the  

learned trial Judge was not a plausible one and the  

case  of  the  prosecution  stood  fully  established  

against the appellant, as far as causing the death

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of Kamla is concerned and, accordingly, convicted  

him under Section 302 IPC and sentenced him to  

suffer life imprisonment and also to pay a fine of  

Rs.5000/-, in default of payment of fine, to further  

undergo  rigorous  imprisonment  for  one  year.  

However, the High Court gave benefit of doubt to  

Mohinder Singh and Anokh Singh.

10. We have Heard Mr. Neeraj Jain, learned senior  

counsel appearing for the appellant and Mr. Rajeev  

Gaur ‘Naseem’, learned counsel appearing for the  

State of Haryana.

11. Mr.  Neeraj  Jain,  learned  counsel  for  the  

appellant, has submitted that the High Court has  

fallen  into  grave  error  by  opining  that  the  view  

expressed by the learned trial Judge was perverse  

and not a plausible one though the learned trial  

Judge has scrutinized the evidence in  a detailed  

manner  and  the  opinion  expressed  is  a  well  

reasoned one.  It is urged by him that though the

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High Court has enumerated the reasons given by  

the trial court and thereafter unsettled them, yet  

the reasons ascribed by the High Court for taking a  

different view is not sound inasmuch as there has  

been  really  no  proper  consideration  of  the  

evidence  which  is  obligatory  on  the  part  of  the  

appellate court to do while dislodging the findings  

recorded by the trial  court.   It  is urged that the  

major discrepancies in the statement of three star  

witnesses  of  the  prosecution,  namely,  Pritam  

Singh, PW-1, Mithan Singh, PW-2, and Dharambir,  

PW-3, with regard to the genesis of occurrence has  

been overlooked by the High Court.  He has further  

put  forth  that  the  photographs  of  the  site  plan  

were  taken  by  the  investigating  agency  and  

nothing  had  come  on  record  that  the  accused  

persons  had  caused  the  pellet  marks  and,  

therefore, when the witnesses deliberately did not  

identify the photographs despite being proven and  

brought  on  record  makes  the  version  of  the

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defence  that  the  complainant  party  was  also  

armed with weapons and attacked on the house of  

the  accused-person  cannot  be  ignored.   The  

learned counsel would emphatically argue that the  

High  Court  has  cryptically  ignored  the  ballistic  

report  which  clearly  showed  that  the  empty  

cartridges recovered from the spot were found not  

to have been fired from the gun of the accused-

appellant which fortifies the defence version that  

the accused never fired.  That apart, submitted Mr.  

Jain,  that  the  ballistic  report  has  not  been  

discussed by the High Court,  for  the said report  

does not connect the mutilated pellets found from  

the body of the deceased with the weapon seized  

from the  appellant.   He  also  canvassed  that  an  

important aspect has not been taken note of by  

the High Court, as is evincible from the evidence  

of Inspector Prem Chand, PW-16, the Investigating  

Officer, that he was pressurized to proceed against  

the  appellant  and  his  relations  and  it  is  further

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obvious  as  the  prosecution  has  not  examined  

Chander,  husband  of  the  deceased,  and  three  

other women, namely, Bala, Murti and Bimla who  

were  alleged  to  have  sustained  injuries  in  the  

occurrence.   To  bolster  his  contentions,  he  has  

commended us to the decisions rendered in Sheo  

Swarup & others v. King Emperor1,Chandu v.  

State of Maharashtra2, Murugesan S/o Muthu  

and  others  v.  State  through  Inspector  of  

Police3,  Rathinam  @Rathinam  v.  State  of  

Tamilnadu and another4, Ram Narain Singh v.  

State  of  Punjab5,  Brijpal  Singh  v.  State  of  

1

AIR 1934 PC 227

2

(2002) 9 SCC 408

3

2012 (10) SCALE 378

4

(2011) 11 SCC 140

5

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Madhya Pradesh6 and Mahendra Pratap Singh  

v. State of Uttar Pradesh7.

12. Mr.  Rajeev  Gaur  ‘Naseem’,  learned  counsel  

appearing for the State, supporting the judgment  

of the High Court, submitted that though there is a  

discrepancy  in  the  ballistic  report,  yet  the  

substantive evidence of the three eye witnesses,  

including  one  injured  eye  witness,  cannot  be  

rejected.  He has relied on the authority in  Ram  

Bali v. State of Uttar Pradesh8.  It is his further  

submission  that  the  High  Court  has  correctly  

opined that the judgment of acquittal rendered by  

(1975) 4 SCC 497

6

(2003) 11 SCC 219

7

(2009) 11 SCC 334

8

AIR 2004 SC 2329

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the learned trial Judge was perverse and deserved  

to be interfered with.

13. Before we proceed to consider the rivalised  

contentions raised at  the bar  and independently  

scrutinize  the  relevant  evidence  brought  on  

record,  it  is  fruitful  to  recapitulate  the  law  

enunciated by this Court pertaining to an appeal  

against acquittal.  In Sheo Swarup (supra), it has  

been stated that the High Court can exercise the  

power  or  jurisdiction  to  reverse  an  order  of  

acquittal  in  cases  where  it  finds  that  the  lower  

court has “obstinately blundered” or has “through  

incompetence,  stupidity  or  perversity”  reached  

such  “distorted  conclusions  as  to  produce  a  

positive  miscarriage  of  justice”  or  has  in  some  

other way so conducted or misconducted himself  

as to produce a glaring miscarriage of justice or  

has been tricked by the defence so as to produce a  

similar  result.   Lord  Russel,  authoring  the  

judgment for the Prevy Council, opined thus: -

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“Sections 417,  418 and 423 of the Code  give to the High Court full power to review  at large the evidence upon which the order  of acquittal was founded, and to reach the  conclusion  that  upon  that  evidence  the  order of acquittal should be reversed.  No  limitation  should  be  placed  upon  that  power, unless it be found expressly stated  in the Code.  But in exercising the power  conferred by the Code and before reaching  its  conclusions upon fact,  the High Court  should and will always give proper weight  and consideration to such matters as (1)  the  views  of  the  trial  judge  as  to  the  credibility  of  the  witnesses;  (2)  the  presumption of innocence in favour of the  accused,  a  presumption  certainly  not  weakened  by  the  fact  that  he  has  been  acquitted at his trial;  (3) the right of the  accused to the benefit of any doubt; and  (4) the slowness of an appellate court in  disturbing a finding of fact arrived at by a  judge  who  had  the  advantage  of  seeing  the witnesses.  To state this,  however,  is  only  to  say  that  the  High  Court  in  its  conduct of the appeal should and will act  in  accordance  with  rules  and  principles  well  known  and  recognized  in  the  administration of justice.”

14. The  said  principle  has  been  followed  in  

subsequent  pronouncements  in  Balbir  Singh  v.  

State of Punjab9, Khedu Mohton and others v.  

9

AIR 1957 SC 216

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State  of  Bihar10,  Ram Narain  Singh  (supra),  

Ganesh Bhavan Patel and another v. State of  

Maharashtra11,  Awadhesh  and  another  v.  

State  of  Madhya  Pradesh12,  Ram  Kumar  v.  

State  of  Haryana13,  Bhagwan  Singh  and  

others  v.  State  of  M.P.14,  State  of  Goa  v.  

Sanjay Thakran and another15, Puran Singh v.  

State  of  Uttaranchal16,  Mahendra  Pratap  10

(1970) 2 SCC 450

11

(1978) 4 SCC 371

12

(1988) 2 SCC 557

13

1995 Supp (1) SCC 248

14

(2002) 4 SCC 85

15

(2007) 3 SCC 755

16

(2008) 3 SCC 795

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Singh  (supra),  Murugesan  C/o  Muthu (supra)  

and  Shivasharanappa and others v.  State of  

Karnataka17.

15. It is also worth noticing that in Murugesan’s  

case the Court referred to the decision in State of  

Rajasthan  through  Secretary,  Home  

Department  v.  Abdul  Mannan18 wherein  

distinction between the statutory appeal and the  

legislative intent was dealt with.  The subsequent  

Division Bench reproduced a passage from Abdul  

Mannan’s case which is extracted below: -

“12. As  is  evident  from  the  above  recorded  findings,  the  judgment  of  conviction  was  converted  to  a  judgment  of  acquittal  by  the  High  Court.   Thus,  the  first  and  foremost  question that we need to consider is, in  what  circumstances  this  Court  should  

17

(2013) 5 SCC 705

18

(2011) 8 SCC 65

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interfere with the judgment of acquittal.  Against an order of acquittal, an appeal  by  the  State  is  maintainable  to  this  Court only with the leave of the Court.  On  the  contrary,  if  the  judgment  of  acquittal passed by the trial court is set  aside  by  the  High  Court,  and  the  accused is sentenced to death, or  life  imprisonment  or  imprisonment  for  more than 10 years,  then the right of  appeal of the accused is treated as an  absolute right subject to the provisions  of  Articles  134(1)(a)  and  134(1)(b)  of  the  Constitution  of  India  and  Section  379 of the Code of Criminal Procedure,  1973.  In light of this, it is obvious that  an  appeal  against  acquittal  is  considered  on  slightly  different  parameters  compared  to  an  ordinary  appeal preferred to this Court.”

16. In the case at hand, it is noticeable that the  

High  Court  has  compartmentalized  the  reasons  

ascribed by the learned trial Judge and thereafter  

dislodged the same one by one.  The approach of  

the High Court in this regard cannot be flawed, but  

a  pregnant  one,  it  is  required  to  be  examined  

whether  the  High  Court  while  dislodging  the  

reasons  and  substituting  the  findings  has  

appositely  reappreciated  the  oral  and  

documentary evidence brought on record to come

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to  the  conclusion  that  the  view  taken  by  the  

learned  trial  Judge  is  neither  a  plausible  nor  a  

reasonable one.  The learned trial Judge, analyzing  

the  evidence  on  record,  had  recorded  a  finding  

that  neither  the  complainant  nor  his  family  

members  nor  the  members  of  the  Harijan  

community had any right on the land inasmuch as  

the controversy in the civil suit was between Guru  

Ravidass Mandir Sabha and the accused persons.  

The  trial  court  had  observed  that  no  document  

was brought on record to show that possession of  

the  disputed  land  was  handed  over  to  the  

complainant or his family members in pursuance  

of the alleged resolution of the Gram Panchayat.  

The learned trial Judge had also observed that the  

plea of the accused persons that they had settled  

there  since  the  time  of  their  predecessors-in-

interest  who  had  migrated  from  Pakistan  was  

acceptable.  Thus, the learned trial Judge returned  

a finding in favour of the accused persons.  This

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finding, needless to say, has been arrived only to  

nullify  the allegation of  the prosecution that  the  

accused  persons  forcibly  put  their  combine  

harvester on the disputed land.  The High Court,  

as  is  perceptible,  has  observed  that  there  is  a  

serious  dispute  with  regard  to  possession.   The  

High Court has failed to appreciate that on earlier  

occasion there was an order  of  injunction which  

was vacated and the suit stood dismissed. It may  

be noted that even if there was a serious dispute  

relating to possession, the learned trial Judge on  

the  analysis  of  the  material  on  record  had  not  

accepted the prosecution version that the accused  

persons  forcibly  entered  upon  the  land  and  

installed the combine harvester.   In  fact,  as the  

evidence would reveal, the combine harvester was  

installed  much  prior  to  the  date  of  occurrence.  

The view taken by the learned trial Judge in this  

regard  for  the  aforesaid  limited  purpose  is  a  

plausible one.  The said finding by itself is of no

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consequence but it has been recorded to support  

and sustain the finding that the accused-appellant  

and his relations did not by force enter upon the  

disputed land and put the combine harvester.  The  

learned trial Judge, on the aforesaid base, had held  

that  there  was  no  intention  on  the  part  of  the  

accused persons and the High Court  has opined  

that  the  question  of  motive  or  intention  is  

inconsequential when there is direct evidence on  

record.  It is settled in law that when there is direct  

evidence, the proof of intention is not necessary.  

However,  the analysis  of  the  learned trial  Judge  

would  go  a  long  way  to  show  that  he  had  

meticulously  scrutinized the evidence relating to  

factum of possession to highlight that the accused  

persons had no intention to forcibly enter upon the  

land and assert their right.  True it is, it has come  

on record that both the parties were fighting over  

possession,  the  complainant  and  others,  on  the  

ground that it was given to them by Guru Ravidass

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Mandir Sabha to construct a temple thereon and  

the  accused  persons  were  resisting  the  

construction of temple.  The said controversy was  

the subject-matter of the civil lis.  As is evincible  

from  the  deposition  of  the  witnesses  that  the  

combine harvester was there on the disputed land  

and the accused persons had not encroached upon  

the land to assert their possession.  To that extent  

the  finding  of  the  learned trial  Judge cannot  be  

found fault with.

17. At this juncture, we are obliged to state that  

though  there  has  been  compartmentalization  of  

the  reasoning,  basically  there  are  three  aspects  

which require scrutiny.  The learned trial Judge had  

not  accepted  the  credibility  of  the  prosecution  

witnesses about the involvement of the accused in  

firing as a result of which the deceased and the  

injured persons sustained injuries.  For supporting  

the  same  he  had  given  emphasis  on  certain  

discrepancies,  which the learned counsel  for  the

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State  would  submit,  are  absolutely  minor  in  

nature.  It is worthy to note that the learned trial  

Judge had recorded the discrepancies and referred  

to the ballistic report to support his conclusion that  

the prosecution had not established the case and  

in  all  possibility  had  tried  to  protect  the  real  

assailants.   To  test  the  justifiability  of  the  said  

finding and the ultimate conclusion it is necessary  

to evaluate the evidence brought on record.  PW-

16, the investigating officer, had clearly deposed  

that he had seized four empty cartridges – C-1 to  

C-4  from  the  spot  where  he  arrived  in  quite  

promptitude.  On a perusal of the ballistic report, it  

is  manifest  that  ]they  were  not  fired  from  the  

weapon,  Ext.-15,  seized  from  the  house  of  the  

accused-appellant.   The  learned  trial  Judge  had  

taken note of the fact that the pellets marks were  

there on the walls of the house of the appellant,  

which were visible from the photographs, Ext.-DA  

to DC.  These aspects show that there were also

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other persons present at the spot who had come  

with arms.  It is demonstrable from the material  

brought on record that there were people from the  

Harijan community who had come to the disputed  

land  and  fired  at  the  house  of  the  accused  

persons.  The said conclusion is buttressed from  

the fact that the empties found from the spot were  

not fired from the gun of the accused.     

18. Quite  apart  from  the  above,  cross-

examination of the eye-witnesses it  is  also clear  

that the members of the Harijan community had  

licensed  guns  and  they  hearing  the  shout  had  

gathered  at  the  spot.    The  High  Court  while  

lancinating the finding of the learned trial Judge on  

this score has only given a cryptic opinion without  

any reason that it does not create a dent on the  

prosecution case.  In our considered opinion, such  

unsettling  of  a  reasonable  finding  in  a  cryptic  

manner  is  not  acceptable.   We  are  of  the

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considered view that it creates a grave dent on the  

version advanced by the prosecution.

19. Another aspect needs to be addressed.  The  

learned trial Judge has disbelieved the version of  

the prosecution relating to firing by the appellant  

on deceased Kamla and other injured persons on  

two counts, namely, the range from which it was  

fired on deceased Kamla, and there is no material  

on record to connect the injuries with the seized  

fired  arms.   The High  Court  has  overturned  the  

distance part but has not really dwelled upon the  

other aspect.  As far as the facet of the distance is  

concerned, the opinion of the High Court seems to  

be sound.  But the fact remains that there is no  

material  on  record  to  connect  that  the  gunshot  

injuries suffered by the deceased are due to the  

shots fired from the gun of the appellant.  It is also  

discernible that though the pellets were recovered  

but the same have not been connected with the  

weapon.   Thus,  we  find  there  is  a  material

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contradiction in the oral evidence adduced by the  

prosecution on one hand and the ballistic report on  

the other.   

20. In  Brijpal Singh’s case, the High Court had  

affirmed the conviction of the appellant therein.  It  

was the case of the prosecution that A-1 at the  

exhortation of A-3 shot the deceased from point  

plank range on the head of the deceased from a  

mouser gun which shattered the right side of the  

head causing death on the spot.  This Court, after  

examining  the  ballistic  report,  opined  that  on  a  

perusal  of  the  said  report  it  was  clear  that  the  

weapon alleged to have been used in causing the  

fatal injury would not have been the mouser gun  

carried by A-1 because the definite report of the  

ballistic  expert  that  the  discharged  empties  of  

cartridge found near the dead body were not that  

fired from the mouser gun.  The Court also took  

note  of  the  fact  that  A-2  therein  who  had  fired  

which missed him but got embedded in the wall of

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the  house,  according  to  the  ballistic  report  the  

embedded cartridges could have been fired from  

the mouser gun and not from a .12 bore gun which  

was used for firing.  This was treated as a serious  

contradiction between the oral evidence and the  

ballistic  report.   Be  it  noted,  a  contention  was  

advanced by the learned counsel for the State that  

if the oral evidence is found to be acceptable by  

the court any contradiction to the ballistic reports,  

the  acceptable  oral  evidence  should  always  be  

preferred.  Dealing with the contention the court  

agreed  with  the  argument  by  stating  that  

normally,  if  the  eye  witness’s  evidence  is  

acceptable,  the argument of  the State would be  

accepted but as the factual position revealed the  

witnesses  were  interested  persons  and  

independent  witnesses  had  not  been  examined  

and further there was inter se contradiction in the  

evidence of certain eye witnesses.  Eventually, the

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Court  while  acquitting  the  appellant  therein  

observed thus: -

“Then, we notice the prosecution has  not  bothered to clarify  the report  of  the ballistic  expert  even though the  same  was  contradictory  to  the  oral  evidence which creates a very serious  doubt in our mind as to the presence  of  eye-witnesses  at  the  place  of  incident.   Keeping  in  mind  the  partisan nature of eye-witnesses and  contradictions  in  their  evidence,  we  think this appellant is also entitled to  benefit of doubt.”    

21. In the instant case, the ballistic report,  Ext.  

P.UU, though refers to the mutilated pellets stated  

to  have  been  recovered  from  the  body  of  the  

deceased Kamla and also the two different leads  

pellets from the body of Murti, but is not definite  

that .12 bore DBBL gun, Ext. W/1, that was seized  

from  the  appellant,  was  used  for  firing  such  

gunshots.   This fact has been totally ignored by  

the High Court in an extremely cryptic manner.

22. At  this  juncture,  we  may  note  with  profit  

another aspect that has been highlighted by the

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learned  counsel  for  the  respondent.   The  

prosecution has not examined Chander, husband  

of  the  deceased,  a  relevant  eye  witness,  Bala,  

Murti and Bimla, three other injured witnesses.  No  

explanation  has  been  given  by  the  prosecution.  

Though  there  have  been  certain  suggestions  to  

PW-16 in the cross-examination, but his answer is  

evasive.   It  is  well  settled  in  law  that  non-

examination  of  the  material  witness  is  not  a  

mathematical formula for discarding the weight of  

the  testimony  available  on  record  howsoever  

natural,  trustworthy  and  convincing  it  may  be.  

The charge of withholding a material witness from  

the court levelled against the prosecution should  

be examined in the background of the facts and  

circumstances of each case so as to find whether  

the witnesses are available for being examined in  

the  court  and  were  yet  withheld  by  the

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prosecution.   (See:  State  of  H.P.  v.  Gian  

Chand19)

23. In this context, we may also note with profit a  

passage  from  Takhaji  Hiraji  v.  Thakore  

Kubersing Chamansing20: -

“19… It is true that if a material witness,  who  would  unfold  the  genesis  of  the  incident  or  an  essential  part  of  the  prosecution  case,  not  convincingly  brought  to  fore  otherwise,  or  where  there  is  a  gap  of  infirmity  in  the  prosecution case which could have been  supplied or made good by examining a  witness  who  though  available  is  not  examined, the prosecution case can be  termed  as  suffering  from  a  deficiency  and  withholding  of  such  a  material  witness would oblige the court to draw  an  adverse  inference  against  the  prosecution  by  holding  that  if  the  witness  would  have  been  examined  it  would  not  have  supported  the  prosecution case.  On the other hand if  already  overwhelming  evidence  is  available  and  examination  of  other  witnesses would only be a repetition or  

19

(2001) 6 SCC 71

20

(2001) 6 SCC 145

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duplication  of  the  evidence  already  adduced, non-examination of such other  witnesses may not be material.  In such  a case the court ought to scrutinize the  worth  of  the  evidence  adduced.   The  court of facts must ask itself – whether  in  the  facts  and  circumstances  of  the  case, it was necessary to examine such  other witness,  and if  so,  whether such  witness  was  available  to  be  examined  and  yet  was  being  withheld  from  the  court?   If  the answer be positive then  only a question of drawing an adverse  inference may  arise.   If  the  witnesses  already  examined are  reliable  and the  testimony  coming  from their  mouth  is  unimpeachable the court can safely act  upon it, uninfluenced by the factum of  non-examination of other witnesses.”

24. Recently in Manjit Singh and Anr. v. State  

of Punjab and Anr.21, this Court, after referring to  

earlier decisions, has opined thus: -

“…it  is  quite  clear  that  it  is  not  the  number  and  quantity  but  the  quality  that  is  material.   It  is  the  duty  of  the  Court to consider the trustworthiness of  evidence  on  record  which  inspires  confidence  and  the  same  has  to  be  accepted and acted upon and in such a  situation no adverse inference should be  drawn from the fact of non-examination  of other witnesses.  That apart, it is also  

21

JT 2013 (11) SCALE 394

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to  be  seen  whether  such  non- examination  of  a  witness  would  carry  the  matter  further  so  as  to  affect  the  evidence of  other  witnesses and if  the  evidence  of  a  witness  is  really  not  essential  to  the  unfolding  of  the  prosecution  case,  it  cannot  be  considered  a  material  witness  (see:  State  of  U.P.  v.  Iftikhar  Khan  and  others22).”

25. In the case at hand, non-examination of the  

material  witnesses  is  of  significance.   It  is  so  

because  PW-11  is  really  an  interested  witness  

though the  High  Court  has  not  agreed  with  the  

same.   It  appears  from the material  brought  on  

record  that  he  had  an  axe  to  grind  against  the  

appellant.  That apart, Chander, who was present  

from the beginning, would have been in a position  

to disclose more clearly about the genesis of the  

occurrence.  He is the husband of the deceased  

and we find no reason why the prosecution had  

withheld  the  said  witness.   Similarly,  the  other  

three  witnesses  who  are  said  to  be  injured  

22

(1973) 1 SCC 512

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witnesses when available should have come and  

deposed.   Therefore,  in  the  obtaining  factual  

matrix  that  their  non-examination  gains  

significance.

26. In this regard, another aspect requires to be  

taken note of.   The case of the prosecution was  

that Mohinder Singh had snatched away the gun  

and fired at Mithan Singh and Bimla.  The learned  

trial  Judge  disbelieving  the  prosecution  version  

had acquitted him.  The High Court has given him  

benefit of doubt.  We are of the considered opinion  

that regard being had to the totality of evidence,  

both oral and documentary, there was no reason  

to  extend  the  said  benefit  of  doubt  to  the  

appellant.  The High Court has fallen into error on  

that score.

27. In view of the aforesaid analysis, the appeal  

is allowed, the judgment passed by the High Court  

is set aside and that of the learned trial Judge is

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restored.  As the appellant is in custody, he be set  

at liberty forthwith unless his retention is required  

in connection with any other case.   

……………………………….J. [K.S. Radhakrishnan]

……………………………….J. [Dipak Misra]

New Delhi; October 24, 2013.