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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 635 OF 2006

KRISHNEGOWDA & ORS. ... APPELLANTS

VERSUS

STATE OF KARNATAKA BY ARKALGUD POLICE ... RESPONDENT

WITH

CRIMINAL APPEAL NO. 1067 OF 2006

NANJE GOWDA & ANR. ... APPELLANTS

VERSUS

STATE OF KARNATAKA BY ARKALGUD POLICE ...RESPONDENT

JUDGMENT

N.V. RAMANA, J.

These  two  appeals  arise  out  of  a  common  judgment  and  order

passed by the Division Bench of the High Court of Karnataka in Criminal

Appeal No. 763/1999 wherein the High Court has set aside the order of

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acquittal  passed  by  the  Trial  Court  and  convicted  the  accused  under

various sections of Indian Penal Code (for short ‘IPC’).

2. The Criminal Appeal 635/2006 is preferred by accused [A1, A4

and A10] who were convicted by the High Court for the offence punishable

under  Section  324  read  with  Section  149,  IPC and  sentenced  them to

undergo  imprisonment  for  a  period  of  one  year  and  to  pay  a  fine  of

Rs. 500/-, in default to undergo 2 months further imprisonment. A10 was

further convicted for the offence under Section 323, IPC and imposed fine

of Rs 500/- and in default to undergo imprisonment for a further period of 2

months.

3. The Criminal Appeal 1067/2006 is preferred by accused Nos. 2

& 5 who were convicted by the High Court  for  the offences punishable

under Section 302 read with 34, IPC and Section 324 read with 149, IPC.

Under Section 302 they were sentenced to undergo life imprisonment and

to pay fine of Rs 10,000/-, in default to undergo further imprisonment for

one year. Under Section 324 the punishment imposed was imprisonment

for a period of one year and fine of Rs 500/- and in default  to undergo

imprisonment for a further period of 2 months.

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4. Brief  facts  as  unfolded  by  the  prosecution  are  that

Chennegowda (deceased), the resident of Mudugere Village, had 12 acres

of land near Masarangala Village out of which eight acres were consisting

of coffee plantation and four acres were wet land. Due to construction of

bridge  over  Hemavathi  river  which  caused  submersion  of  some

surrounding lands in the backwaters, Channegowda and his sons used to

pass through the cart track in Survey No. 42 and other lands in Survey No.

43 belonging to  the accused persons since they were located between

coffee estate of Chennegowda and the road to Kendenne village, to have

access to his coffee estate, the deceased could get a road sanctioned from

the authorities. Accused No. 7, Rajappa got temporary injunction against

that sanction which led to the deceased to move the Court and got the

temporary injunction vacated. When a Court commissioner inspected the

disputed  lands,  a  quarrel  had erupted  between the accused and victim

parties. The Panchayat settled the issue by directing the deceased to pay

Rs.1000/- to the brother of Accused No. 13.  Accordingly the payment was

made but the enmity between the two groups continued.

5. In the backdrop of this factual scenario, on 27th February, 1991

at  about  8  am,  when  Sannegowda  (PW1),  Channegowda  (PW5)  and

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Swamygowda (PW6) - all belonging to victim party, were carrying milk to

the collection centre of Daarikongalale village, accused Nos. 1 to 7 and 9 to

13 formed into an unlawful assembly and restrained Sannegowda (PW1)

near Higher Primary School and assaulted him with clubs and stones. At

that point of time Channegowda (father of PW1), Mogannagowda (PW2)

and  Papegowda  (PW3)  came  and  interfered  questioning  the  accused

reasons  for  the  assault.  Then  Puttegowda  (A5)  and  Nanjegowda  (A2)

attacked Channegowda (father of PW1) seriously injuring him with chopper

and  club  respectively.  Sannegowda  (PW1),  Moganangowda  (PW2)  and

Papaegowda (PW3) were injured at the hands of A2 and A3. The injured

were shifted to hospital and the same was informed to police.

6. The  Investigating  Officer,  Lakshmi  Prasad,  PSI  (PW19)

recorded the statement (Ex.P1) of Sannegowda (PW1) and registered the

case  against  Krishnegowda  (A1)  and  five  others  for  the  offences

punishable under Sections 143, 147, 148 and 324 read with Section 149,

IPC. Meanwhile, the seriously injured Channegowda (father of PW1) was

treated in S.C. Hospital at Hassan for two days, thereafter he was shifted to

NIMHANS, Bangalore, from there to Victoria Hospital, Bangalore and finally

again to S.C. Hospital at Hassan where on 6th March, 1991 he succumbed

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to the injuries. Consequently, charge under Section 302, IPC was added

against  the  accused,  inquest  report  prepared,  postmortem  conducted,

statements of witnesses have been recorded and Investigating Officer got

prepared sketch of scene of occurrence and seized choppers and clubs

from the place of occurrence and sent it to Forensic Science Laboratory at

Bangalore.

7. The Principal Sessions Judge at Hassan took cognizance of the

offence and framed charges. Before framing charges, accused No. 8 died.

Hence charges were framed against remaining 12 accused for the offences

punishable under Sections 148, 302/149, 324/149 and 323/249 of IPC. In

order  to  bring home the guilt  of  the accused,  prosecution examined 22

witnesses, PWs 1 to 6 and 11 being eyewitnesses, marked Ext. P-1 to P-41

and MOs 1 to 6 were produced at trial. However, in defence no witness was

examined on behalf of the accused.

8. The  Trial  Court  after  a  full  fledged  trial  has  acquitted  the

accused as the Court came to the conclusion that the prosecution could not

prove  the  guilt  of  the  accused  beyond  reasonable  doubt.  The  whole

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emphasis and basis for the Trial Court to come to such a conclusion is on

the following:

(a) The  evidence  of  the  eyewitnesses  is  inconsistent  and  not

trustworthy. The first information report did not contain the names

of accused and this would lead to the inference that the evidence

given by PW1 before the Court is an obvious improvement. (b) The  evidence  of  PW2 is  that  A11 &  12  hit  the  deceased  with

stones on his  chest  which is  not  spoken by PW1 and also not

supported  by  medical  evidence.  When  there  is  inconsistency

between  medical  evidence  and  ocular  evidence,  the  benefit  of

doubt should be given to the accused.  (c) The omission on the part of the prosecution to explain the injuries

on the person of the accused assumes greater importance. In view

of  the  inherent  improbabilities,  the  serious  omissions  and

infirmities, the prosecution miserably failed to prove the case. (d) The police suppressed the factum of the direction given to police

to seize the gun held by the deceased and to include an offence

punishable under relevant Sections of the Arms Act. (e) Accused Nos. 7-13 were implicated in the case after 06-03-1991

as their names do not find place in the first or second FIR. (f) The prosecution has not stated PW4 as witness and PW 1 & 2 had

not mentioned about his presence at the time of occurrence. (g) The evidence of PW5 is not consistent with other witnesses.

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(h) The evidence of the Investigation Officer and PW 1 & 2 with regard

to the arrest is inconsistent with others and appears to be tainted. (i) The blood found on MO4 is of ‘O’ group and both the blood groups

of the deceased and A5 are of same group. (j) The  statement  given  by  PW1  is  inconsistent  with  previous

statement recorded by police u/sec 171, CrPC. (k) PW2  who  was  injured  on  27-02-1991  went  to  hospital  on

08-03-1991  for  examination  and  treatment  which  creates  an

amount of doubt.

9. Basing  on  the  above  inconsistent  evidence  of  prosecution

witnesses  with  that  of  medical  evidence  and  other  probable

circumstances,  Trial  Court  came  to  the  conclusion  that  the

prosecution  could  not  prove  the  guilt  of  the  accused  beyond

reasonable  doubt  and  therefore  acquitted  the  accused  from  the

offences charged against them.

10. Aggrieved by the judgment passed by the Trial Court, the

State of Karnataka carried the matter to the High Court. The Division

Bench  of  the  High  Court  being  conscious  of  the  powers  of  the

appellate  Court  in  an  appeal  against  acquittal  observed  that,

appellate Court should not interfere with the order of the acquittal, if

the view taken by the Trial Court is also a reasonable view of the

evidence on record and the findings recorded by the Trial Court are

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not  manifestly  erroneous,  contrary  to  the  evidence  on  record  or

perverse proceedings. The High Court went ahead to scrutinize the

legality or otherwise of the order of acquittal.

11. The High Court has compartmentalized the reasons given

by the Trial Court and thereafter dislodged the same one by one on

the following grounds: (a) PW1 to PW3 who are sons of deceased consistently deposed

about  the injuries inflicted by A2 & A5 and their  evidence is

consistent  and  unshaken.  The  evidence  of  PW1 establishes

factum of happening of the incident. Even though there were

contradictions  in  the  evidence  of  eye  witnesses  it  does  not

affect the pith and substance of eye witnesses. Hence need not

be considered. (b) Though  these  witnesses  are  interested  witnesses  they  are

natural  witness  and  nothing  contra  is  elicited  as  such  their

evidence has to be taken into consideration. (c) Though the evidence with regard to injuries on the chest of the

deceased allegedly inflicted by A11 & 12 is contrary to medical

evidence, still the reliable testimony of the eyewitnesses cannot

be disregarded and these contradictions will not go to the root

of the matter.

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(d) The  medical  evidence  of  PW10  fully  corroborates  with  the

evidence of eyewitnesses with regard to the injuries sustained

by the deceased at the hands of A 2 & 5. (e) The  motive  for  the  commission  of  offence  is  successfully

established. (f) The  investigation  by  the  police  is  fair  and  genesis  of  the

incident is not suppressed as everything is in black and white. (g) The presence of PSI (PW 19) at the place of occurrence before

recording the complaint (Ex-P1) is not a serious infirmity in the

prosecution  case  when  the  evidence  of  eyewitnesses  is

straightforward and there is  nothing to show that  Ex-P1 was

concocted. (h) The other aspects such as initially arresting Sannegowda and

Mogannagowda,  sons  of  deceased and later  on  transposing

them as PWs 1 & 2, medical examination of PW 2 taking place

on 08-03-1991 when he was injured on 27-02-1991, the MOs 1,

2 and 4 stained with blood and the blood group of deceased

and A5 being same ‘O’ group, inconsistency in the evidence of

PW1 relating to non mentioning of the names of A2 and A5 are

not at all ‘fatal’ to the case of the prosecution. (i) The seizure of weapons from the place of occurrence and later

at police station, are not serious defects.

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(j) The High Court found only A2 & A5 had common intention in

taking away the life of the deceased and others did not have

common intention. (k) A1 to A5, A9 and A10 have common object of assaulting PW1.

The  High  Court  felt  that  Trial  Court’s  view  was  perverse,

erroneous and contrary  to  the evidence available  on record,

hence it is a fit case where the appellate Court has to interfere

with the order of acquittal passed by the Trial Court.

12. The High Court found A2 and A5 guilty of committing the

offence  under  Section  302/34,  IPC  and  sentenced  them  to  life

imprisonment and to pay a fine of Rs.10,000/- each, in default,  to

suffer further imprisonment of one year. A1 to A5, A9 and A10 were

convicted  under  Section  324/149,  IPC  and  sentenced  to  suffer

imprisonment for a period of one year and to pay fine of Rs.500/-, in

default, to suffer further imprisonment of two months. Whereas A6,

A7, A9, A10 and A13 were convicted under Section 323, IPC and they

were  directed  to  pay  a  fine  of  Rs.500/-,  in  default,  to  suffer  two

months imprisonment.  The substantive sentences were directed to

run concurrently.

13. That is how A 1, 3, 4 and 9 are before this Court by way of

special leave petition. On 11th May, 2006 this Court granted leave to

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accused Nos. 1, 3 and 4 making them appellants in Criminal Appeal

No. 635 of 2006. The Court however dismissed the S.L.P. of accused

No. 9, Ramesha, as he has not surrendered. Accused Nos. 2 and 5

have preferred Criminal  Appeal  No.  1067 of  2006 challenging  the

order of the High Court.

14. We have heard the learned counsels appearing on either

side and perused the material available on record.

15.  Learned  counsel  appearing  for  the  appellant  has

submitted that the Court below has failed to appreciate the case and

counter  case.  There  are  several  contradictions  in  the  evidence  of

prosecution  witnesses  on  several  material  aspects  and  the  same

goes to the root of the matter. It is urged that the medical evidence is

not in consonance with the ocular evidence. The prosecution witness

has concealed the genesis of the incident and did not place the true

facts before the Court. Because the prosecution party was politically

influential,  the  complaint  lodged  by  the  father  of  A5  was  not

investigated properly by the police. Even the injuries on A5 were not

properly explained and these are latches on the part of investigation

and fatal to the case of prosecution. In support of the same senior

counsel  relied  on  the  judgment  of  Takhaji  Hiraji  V.  Thakore

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Kubersing Chamansing & ors, (2001) 6 SCC 45 and also placed

reliance on  State of MP V. Mishrilal (dead) & Ors., (2003) 9 SCC

426. Non- mentioning of the names of A2 & A5 at the earliest point of

time  is  lapse  on  the  part  of  investigation  and  the  High  Court

committed  a  serious  error  of  law  in  not  taking  these  factors  into

consideration. The learned senior counsel finally submitted that the

High Court based its conclusion by ignoring several material factors

and hence the impugned judgment needs to be set aside. 16.    Learned counsel appearing for  the State supported the

impugned judgment.    

17. Now the  issue  that  falls  for  consideration  before  us  is

whether the High Court was justified in reversing the order of acquittal

passed by the Trial Court.

18. In view of the voluminous evidence placed on record and

the  divergent  views  taken  by  the  Courts  below,  it  has  become

imperative for us to evaluate the material on record in detail to come

to a just conclusion. First and foremost we would like to analyze the

oral evidence adduced by the prosecution in support of its case.

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Oral  Evidence:  (i)  PWs  1  to  3  are  sons  of  the  deceased.  As  rightly

observed by the High Court their evidence is consistent about one aspect

that is with regard to the injuries sustained by the deceased at the hands of

accused, but the evidence on record makes it clear that there are several

contradictions in the evidence of the witnesses which creates doubt in the

mind of the Court as rightly observed by the Trial Court.

(ii) According  to  PW1  on  27-02-1991  he  took  milk  to  the  milk

collection centre at Parikongalale Village along with PW5 & PW6 at 07:30

a.m. At that time A1, A3, A5, A6 held him and assaulted him with clubs and

stones  and  fisted  him.  Then  he  has  narrated  how A1,  A2,  A3  and  A4

assaulted him.  Then the deceased,  PW2 & PW3 came to  the place of

occurrence and asked him why they are assaulting PW1. A5 & A2 with

chopper and club again assaulted their father and he fell down and became

unconscious. Then PW6 carried his father to the veranda of the school and

laid him down. After that again A2, A3, A10 assaulted his brother. At that

time  police  came  to  the  scene  of  offence  at  10  a.m.  and  shifted  the

deceased and PW1 to the hospital and then he wrote a complaint and gave

it to the police. Police recorded the statement and it is attested by him.  

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(iii)  Again at the time of inquest his statement was recorded by the

police.  Then  in  the  cross  examination  PW1  has  deposed  altogether  a

different version with regard to the injuries inflicted by the accused on him

and PWs 2 & 3 and added A5 & A10 for the first time. It is stated by him

that his statement was recorded by police at 12 pm and he has not given

any complaint in writing. He further states that he has not given the names

of  accused  to  the  police.  He  denied  the  fact  that  father  of  A5  gave  a

complaint to the police against their family at 10 a.m on 27-02-1991 and

police seized the gun. Then for the first time he stated the names of the

accused who assaulted at the time of inquest.

(iv) A close look at the evidence of PW2 reveals that according to him

they reached the scene of offence along with deceased at 9 a.m. A1-7 and

A 9-13 were present there by the time they reached the place. His evidence

was consistent with regard to injuries inflicted by A2 and A5 but stated that

A11  and  A12  inflicted  injuries  on  the  deceased  with  stones  which  is

contrary  to  the  medical  evidence.  He  stated  that  the  weapons  were

recovered from the drain. According to PW1 he left the place at 07:30. As

per PW2’s version, PW1 left the place at 06:30 and PW3 gave a different

version with regard to reaching the place. According to him they reached

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the place at 07:30 or 08:00 a.m and very interestingly he deposed that his

father fell into the drain and later he was lifted from there and laid him in the

school veranda.

(v)  Later police reached the place of occurrence at 09:00 a.m. and

Police have arrested PWs 2 & 3 and released them at 05:00 p.m. He has

specifically  stated  that  police  have  not  seized  and  sealed  the  chopper

marked  as  MO 4.  According  to  PW3,  when  they  reached  the  place  of

occurrence, only 4-5 persons were there. According to PW2 all accused

persons were present and even with regard to injuries also he took a contra

stand. As per his version the whole incident has taken place for 15 minutes

i.e. between 08:30-08:45 a.m. PW4 was not cited as a witness but was

examined as a witness. Whereas PW5 gave altogether a different version.

According to him,  incident  took place at  07:00 a.m.  and A6 & A2 were

standing near the culvert. He released PW1 from clutches of the accused.

According to  him,  police  came at  09:00 a.m.  This  aspect  was also not

deposed by PW1. PW6 states that A6 holding PW1’s collar which was also

not  deposed by  PW1.   According  to  him,  he  has  attended  the  seizure

mahazar but the MOs were not shown to him nor, any seal was affixed on

them at the time of seizure.

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(vi)  The  next  important  evidence  is  that  of  Doctor  i.e.  PW10.

According to PW10 the weapons were not sent to him for opinion. PW10 in

his cross examination has categorically deposed that the injuries 1 & 4 are

possible if a person were to fall on the curve stone of a drain.

(vii) PWs 13 and 15 are the Head Constables and PW 19 is  the

Inspector  of  Police  (I.O.).  According  to  PW13,  SI  has  registered  the

complaint at 11:30 a.m. and 2nd FIR was registered altering the Sections on

06-03-1991. PW15 deposed that ‘galata’ was informed to them at 09:15 am

and they reached the scene of offence at 10 a.m. PW1 had not sustained

any  visible  injuries.  PW1  took  the  SI  near  to  the  drain.  In  the  cross

examination he said that at 08:00 a.m. ‘galata’ took place and he does not

know how they came to know about the information.  When they reached

the scene of offence 50-60 persons were present there. SI (PW19) reached

the place of occurrence at 10:15 am and enquired PW1 and others. The

evidence of PW19 in the chief is that at 08:00 a.m. he came to know about

the incident,  went to the scene of occurrence along with PWs 15 & 18.

Chopper, stones, club were lying near the place. By the time they reached

the place at 08:15 a.m., 10 to 15 persons were present. He has not made

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any enquiry and, he has recorded Ex. PI in police station at 10:30 a.m. on

the  same  day.  He  returned  to  the  police  station  at  09:45  a.m.  It  is

specifically  stated that  he has not  arrested PWs 1,  2 & 3 and has not

produced sample seal.

19. Having  gone  through  the  evidence  of  the  prosecution

witnesses and the findings recorded by the High Court we feel that

the High Court has failed to understand the fact that the guilt of the

accused has to be proved beyond reasonable doubt and this is a

classic case where at each and every stage of the trial, there were

lapses on the part of investigating agency and the evidence of the

witnesses  is  not  trustworthy  which  can  never  be  a  basis  for

conviction.  The basic principle of  criminal  jurisprudence is that  the

accused is presumed to be innocent until his guilt is proved beyond

reasonable doubt.

20. Generally  in  the  criminal  cases,  discrepancies  in  the

evidence  of  witness  is  bound to  happen because there  would  be

considerable  gap  between  the  date  of  incident  and  the  time  of

deposing evidence before the Court, but if these contradictions create

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such serious doubt in the mind of the Court about the truthfulness of

the  witnesses  and  it  appears  to  the  Court  that  there  is  clear

improvement, then it is not safe to rely on such evidence.

21. In the case on hand, the evidence of eyewitnesses is only

consistent on the aspect of injuries inflicted on the deceased but on

all other factors there are lot of contradictions which go to the root of

the matter.  

22. Even with regard to seizure of weapons it was observed

by the Trial Court that at one breath it was stated that the MOs were

seized from the scene of offence and another version was they were

seized in the police station and consistently it  was stated that  the

MOs were not sealed and the Doctor observed that those were not

sent to her for opinion. Then the immediate question which comes to

the mind of a prudent person is whether the MOs which are before

the Court were the ones seized from the scene of offence. Hence an

adverse  inference has  to  be drawn on  the prosecution  case.  The

witnesses gave different versions on how the weapons were seized.

Some of them indicated that they were in the drain and some other

witnesses said that  they were lying on the ground at  the place of

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occurrence.  The  High  Court  was  correct  so  far  as  not  attributing

importance to the injuries inflicted by A 11 and 12 as it did not go to

the root of the matter.

23. In the evidence of the prosecution witnesses in respect of

exact time when the incident had happened, who were the people

present at the scene of offence, the time of police reaching the scene

of  offence,  place  of  registering  the  complaint,  there  were  lot  of

variations. According to PW1 the complaint was recorded at hospital

at  12  p.m.  whereas  the  Investigating  Officer  deposed  that  he

registered the complaint at 10:30 a.m. at the police station. PWs 1-3

say that they were arrested by Investigating Officer but the I.O. gave

a contradictory statement that he has not arrested them. PW1 initially

gave a statement before the police saying A1, A5, A3, A4 had not

assaulted  him.  Later  he  gave  a  contradictory  statement  which  is

marked as Exhibit D1.

24. The  eyewitnesses  have  not  mentioned  the  names  of

accused 7 to 13 in any of the FIR and subsequent addition of their

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names  after  06-03-91  clearly  demonstrates  that  it  was  an

afterthought, only to implicate them.

25. It is to be noted that all the eyewitnesses were relatives and the

prosecution failed to adduce reliable evidence of independent witnesses for

the  incident  which  took  place  on  a  public  road  in  the  broad  day  light.

Although there is no absolute rule that the evidence of related witnesses

has to be corroborated by the evidence of independent witnesses, it would

be trite in law to have independent witnesses when the evidence of related

eyewitnesses  is  found  to  be  incredible  and  not  trustworthy.  The  minor

variations and contradictions in the evidence of eyewitnesses will not tilt the

benefit of doubt in favor of the accused but when the contradictions in the

evidence of  prosecution witnesses proves to be fatal  to the prosecution

case then those contradictions go to the root of the matter and in such

cases accused gets the benefit of doubt.

25. It is the duty of the Court to consider the trustworthiness

of evidence on record. As said by Benthem, “witnesses are the eyes

and ears of justice”. In the facts on hand, we feel that the evidence of

these  witnesses  is  filled  with  discrepancies,  contradictions  and

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improbable versions which draws us to the irresistible conclusion that

the evidence of  these witnesses cannot  be a basis to  convict  the

accused.

26. Latches in Investigation: (i) One of the major lacuna in the

case is non-mentioning of the names of A2 & A5 by PW1 to the police

at the earliest point of time. The High Court went wrong in observing

that this will not amount to latches and it will not go to the root of the

matter. These are the glaring defects which will virtually collapse the

case of the prosecution. It is no doubt true that the FIR need not be

an encyclopedia and also it need not contain all the details but when

the names of A2 & A5 were not figured in the FIR it casts a doubt on

the  whole  episode.  According  to  the  eyewitnesses,  accused  had

inflicted major injuries and that was the reason for the death of the

deceased. It is expected from a prudent man to disclose the names of

accused. If the accused cannot be identified or not known to the PWs

then it is not a serious thing to dwell upon but these people are very

much known to PW1’s family. It therefore creates a serious doubt in

the mind of the Court.

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(ii) The other glaring defect in the investigation is when A1 has

sustained injuries and admittedly a complaint was given by his father, a

duty is cast upon the prosecution to explain the injuries. The doctor has

also  categorically  deposed  about  the  injuries  sustained  by  A1.  These

lapses on the part of Investigating Officer assume greater importance and

prove to be fatal to the case of the prosecution. When the Investigating

Officer deposed before the Court that the complaint given by A5’s father

was  investigated  and  he  filed  ‘B  form’  and  the  case  was  closed,  not

marking  the  document  is  fatal  to  the  case  of  prosecution.  Investigating

Officer further suppressed the fact that there was a direct evidence to seize

the  gun  used  by  the  deceased  and  register  a  complaint  against  the

deceased under the relevant provisions of the Arms Act which is evident

from the endorsement made on Exhibit P22.  

(iv)  The Investigating Officer himself deposed that he had not

seen the MOs and as per the punch witnesses also they were not seized.

The Doctor (PW10) deposed that those articles were not placed before her

and no opinion was sought.

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(v)  PW2  was  also  an  injured  witness.  According  to  the

prosecution he was injured on 27-02-1991. But he went to the hospital on

08-03-91 and the reasons for delay were left unexplained.   

27. It  is  settled  law  that  mere  latches  on  the  part  of

Investigating  Officer  itself  cannot  be  a  ground  for  acquitting  the

accused. If  that is the basis,  then every criminal  case will  depend

upon the will and design of the Investigating Officer. The Courts have

to  independently  deal  with  the  case  and  should  arrive  at  a  just

conclusion  beyond  reasonable  doubt  basing  on  the  evidence  on

record.  

28. Medical Evidence:  When we look at the medical evidence, the

Doctor (PW10) has categorically stated that the weapons were not

sent to her. In the chief examination, it was stated that the injuries 1 &

4 on the body of the deceased are possible with chopper and club.

But in the cross examination it  was deposed that even if  a person

falls  on  a  sharp  object  these  injuries  could  happen.  According  to

PW3, the deceased fell into the drain.

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(i) As  per  the  evidence  of  prosecution  witnesses,  accused  by

using the sharp edge of the weapon assaulted on the right side

of the forehead but the Doctor’s evidence in this regard is that

the  deceased  has  not  sustained  incised  wound  on  the

forehead. PW10 further stated that if a person is assaulted with

an object like MO4 it would result in fracture of frontal bone.   

(ii)  The other  ground is,  when the father  of  A5  gave  a  complaint

against the deceased’s family as the police filed ‘B form’ the same was

closed and not filed before the Court. Apart from that, the direction of the

Court to seize the gun of the deceased and file a case under the relevant

provisions of the Arms Act was not brought to the notice of the Court. Non

explanation of injuries on A5 is another major defect.

29. Once there is a clear contradiction between the medical

and the ocular evidence coupled with severe contradictions in the oral

evidence, clear latches in investigation, then the benefit of doubt has

to go to the accused.

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30. Going by the material  on record,  we disagree with  the

finding of the High Court that the ocular evidence and the medical

evidence are in conformity with the case of prosecution to convict the

accused. The High Court has brushed aside the vital defects involved

in the prosecution case and in a very unconventional way convicted

the accused.

31. The Court should always make an endeavor to find the

truth. A criminal offence is not only an offence against an individual

but  also  against  the  society.  There  would  be  failure  of  justice  if

innocent man is punished. The Court should be able to perceive both

sides  i.e.  the  prosecution  as  well  as  the  defence  and  in  our

considered  opinion  the  judgment  of  the  High  Court  suffers  from

several defects as discussed in the preceding paragraphs.  

32. Hence we deem it appropriate to set aside the judgment

of the High Court and re-affirm the order of acquittal passed by the

Trial Court. The accused shall be set at liberty provided they are not

required in any other case. Accordingly the appeals are allowed.  

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..................................J (N. V. RAMANA)

.................................J (PRAFULLA C. PANT)

NEW DELHI DATED:  March 28, 2017