Mahavir Singh Vs State of Madhya Pradesh

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CORRIGENDUM

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1141 OF 2007

MAHAVIR SINGH … APPELLANT

VERSUS

STATE OF MADHYA PRADESH … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

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1. This appeal arises out of the judgment and order dated 19th March,

2007 passed by the High Court of Madhya Pradesh, Bench at

Gwalior in Criminal Appeal No. 36 of 1996 whereby the High Court

has partly allowed the appeal preferred by the State by confirming

the judgment of the Trial Court for the offence under Section 148

of IPC and convicted the appellant herein for the offence under

Section 302, IPC and sentenced him to undergo imprisonment for

life.

2. The brief facts of the case as culled out from the case of the

prosecution are that on 26th December, 1987 at about 1 p.m. while

Gambhir Singh (PW 7) (brother of the deceased) was having lunch

at his home, the appellant along with a group of co-accused

persons, each armed with deadly weapons rushed to his house

hurling abusive filthy words and picked up a quarrel with his

brother Jagannath Singh (deceased) who was sitting outside on a

platform (Chabutara) along with his nephew Bir Singh (PW 11).

When Jagannath Singh (deceased) raised objection to their

behavior, the appellant fired a gunshot in the abdomen of the

deceased as a result of which he fell down on the ground and

succumbed to the injuries.

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3. Gambhir Singh (P.W. 7) carried the body of the deceased to the

police station, Lahar on a bullock cart and lodged the FIR

(Annexure P-1) at 4.15 PM on the same day. Dilip Singh Yadav

(PW-13) prepared inquest memo and Dr. A. K. Upadhyay (P.W. 12)

conducted autopsy on the dead body. On the next day, Dilip Singh

Yadav (PW 13) seized blood stained soil and plain soil from the

place of occurrence, as per seizure memo. He also seized a gun,

12 live cartridges and 9 empty cartridges from the possession of

appellant Mahavir Singh, an axe from Sobaran (co-accused) and a

lathi from Kanched Singh (another co-accused) as per seizure

memo and sent them to the Forensic Science Laboratory at Sagar.

Consequently, statements of witnesses were recorded under

section 161 of Cr.P.C., spot map was prepared and Charge-sheet

was filed against the appellant under sections 302, 147, 148 and

149 of the IPC in the Court of Judicial Magistrate First Class,

Lahar who committed the case to Court of Sessions for Trial. The

Trial Court framed charges u/s 302 and 148 of IPC against the

appellant and under sections 148, 302/149 of IPC against

co-accused. All the accused pleaded not guilty and claimed to be

tried. To prove the guilt of the accused, the prosecution has

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examined 13 witnesses and marked several Exhibits while the

accused examined none in defence and no exhibits were marked

on his behalf.

4. The Trial Court by its judgment and order dated 30 th November,

1994 acquitted the appellant from the alleged offences mainly on

the ground that there are contradictions in the evidence of

eyewitnesses to that of medical evidence, prosecution has failed to

prove beyond reasonable doubt formation of unlawful assembly

with a motive of committing murder of the deceased and also

failed to establish that the bullet had been fired with the firearm

seized from the appellant.

5. Dissatisfied with the Judgment of the Trial Court, the State

preferred an appeal before the High Court claiming that the

judgment of the Trial Court is perverse and illegal inasmuch as it

did not appreciate the prosecution evidence in right perspective

and ignored the evidence of the eyewitnesses. The High Court, on

a reanalysis of evidence of prosecution witnesses and other

material available on record came to the conclusion that the Trial

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Court was right in acquitting the other co-accused persons but

found fault with the acquittal of the appellant under Section 302

IPC. The High Court, therefore, partly allowed the appeal by

confirming the judgment of the Trial Court in respect of the charge

under Section 148 and convicted the appellant herein for the

offence under Section 302, IPC and sentenced him to undergo

imprisonment for life. Aggrieved by the Judgment of the High

Court, the appellant approached this Court in appeal.

6. Learned counsel for the appellant submitted that the Trial Court

rightly acquitted the appellant, after elaborately considering the

evidence on record, upon coming to the conclusion that there is

lack of credibility in the testimony of the prosecution witnesses,

and, in particular, the medical and ocular testimonies are

conflicting; there was considerable delay on the part of

Investigating Officer in recording the evidences of alleged

eyewitnesses inasmuch as statements by none of the

eyewitnesses were recorded on the day of occurrence of the

incident.

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7. In the background of this factual matrix, learned counsel for the

appellant has advanced his arguments that since the appellant

and victim parties have prior enmity over some pending criminal

cases, the family members of the deceased, i.e., Gambhir Singh

(PW 7), Shanti Devi (PW 8), Bir Singh (PW 11) in connivance and

with the help of a pocket witness Madho Singh (PW 9) concocted

the story, by projecting himself as an eyewitness, and falsely

implicated the appellant. According to him, this fact is clearly

established with the contradictions in the medical evidence and the

unreliable evidence of the alleged interested eyewitness. The

presence of Gambhir Singh (PW 7), at the time of occurrence, as

heavily relied upon by the prosecution, proves to be false in the

light of evidence of Bir Singh (PW 11) who nowhere in his

testimony mentioned that Gambhir Singh (PW 7) alone came out

of the house and witnessed the incident and Madho Singh (PW 9)

claimed that soon after the shooting, Gambhir Singh (PW 7), Bir

Singh (PW 11) and Shanti Devi (PW 8) came out of the house and

therefore the accused fled away from the spot. It is also contended

that the alleged eyewitnesses Gambhir Singh (PW 7), Bir Singh

(PW 11) and Shanti Devi (PW 8) made material improvements in

their testimonies before the Court in order to connect the case of

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prosecution with the medical report. Thus, the presence of the

eyewitnesses at the place of occurrence is doubtful.

8. Learned counsel further urged that as per the site plan prepared

by the Investigation Officer and also as per the medical evidence,

the deceased Jagannath Singh was standing when he was shot.

According to the medical report, the injuries sustained by the

deceased are possible only when the assaulter stands at a height

above the victim. Contrary to this, the case advanced by the

prosecution, coupled with the evidence of alleged eyewitness, is

that the appellant was standing on a lower level and the deceased

was standing on a higher level i.e. on the platform. In his

statement Madho Singh (PW 9) categorically mentioned that the

deceased was sitting on the platform (Chabutara) and the

appellant was standing on the ground, when he was shot. While

the medical report indicated that the margins of the wounds were

inverted and the bullet must have been fired from a distance of

within 6 feet, and as per the testimonies of the direct

eyewitnesses, the said distance varied between 12 to 22.5 feet.

The absence of human blood at the alleged place of incident i.e.

on the platform and presence of blood on the ground in front of the

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platform further renders the prosecution’s case even more

doubtful. This blood also could not be matched with that of the

deceased and therefore, recovery of weapons is of no relevance.

Simply for the reason that the post-mortem report indicated that

the deceased had died due to one single gunshot, and mere

recovery of nine empty cartridges from the appellant does not in

any way connect him with the crime, when the empty cartridges

were not recovered from the place of incident and also in the

absence of authenticated proof that the bullet shot at the

deceased was fired from the gun owned by the appellant. Learned

counsel thus submits that the statements of eyewitness are not

trustworthy. Considering the facts in their entirety, such as delayed

recording of statements of the eyewitnesses and an unsuccessful

attempt to reveal as to where the bullet had struck the victim and

the unmatched statements by prosecution witnesses with that of

the medical expert, the learned Trial Court was pleased to record

the order of acquittal of the appellant.

9. The learned counsel finally submitted that the High Court, on the

other hand, failed to appreciate the evidence in true legal

perspective and wrongly interfered with the well reasoned

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judgment of acquittal passed by the Trial Court based on a cogent

and detailed reasoning and that the High Court committed a grave

error by convicting the accused for the offence under Section 302

IPC. The impugned judgment is contrary to the settled legal

principles as it did not give due weightage to the medical evidence

and rejected the same without ascribing any reason. Thus,

interference by the High Court with the reasoned judgment of

acquittal passed by the Trial Court is unwarranted. Learned

counsel submits that in the light of settled legal principles, the

conviction of the appellant by the High Court is vague and

uncalled for and the same requires to be set aside by this Court.

10. On the other hand, learned counsel appearing for the State,

argued that the judgment of the Trial Court acquitting the appellant

was wholly erroneous as it was passed without taking into account

the prosecution evidence in its right perspective. There was no

inconsistency in the evidence of eyewitnesses who were very

much present at the scene of offence and the Trial Court was not

justified in ignoring their evidences. The High Court, after

re-appreciating the entire evidence on record, took a justifiable

stand in convicting the accused under Section 302 of the IPC by a

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well reasoned judgment and that there is no illegality or perversity

in the conviction of the accused calling interference by this Court.

11. We have heard the learned counsel on either side at length and

perused the material available on record. Now it is imperative to

look into the scope of interference by the appellate Court in an

appeal against acquittal and whether the High Court was justified

in convicting the accused under Section 302, IPC by reversing the

order of acquittal passed by the Trial Court.

12. In the criminal jurisprudence, an accused is presumed to be

innocent till he is convicted by a competent Court after a

full-fledged trial, and once the Trial Court by cogent reasoning

acquits the accused, then the reaffirmation of his innocence places

more burden on the appellate Court while dealing with the appeal.

No doubt, it is settled law that there are no fetters on the power of

the appellate Court to review, reappreciate and reconsider the

evidence both on facts and law upon which the order of acquittal is

passed. But the court has to be very cautious in interfering with an

appeal unless there are compelling and substantial grounds to

interfere with the order of acquittal. The appellate Court while

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passing an order has to give clear reasoning for such a

conclusion.

13. It is no doubt true that there cannot be any strait jacket formula as

to under what circumstances appellate Court can interfere with the

order of acquittal, but the same depends on facts and

circumstances of each case. In the case on hand, we have to

examine the rationale behind the conclusion of the High Court in

convicting the accused and the compelling reasons to deviate from

the order of acquittal passed by the Trial Court.

14. On a thorough analysis of the judgment impugned, it is evident

that the High Court has not recorded any reasons for partly setting

aside the judgment of the Trial Court which has acquitted all the

accused persons from the same set of facts before it. The High

Court which has set aside the acquittal order of the Trial Court has

observed that the Trial Court has based its reasoning on guess

work. We find it that even the High Court has committed the same

mistake and basing on the same facts and guess work has arrived

at the conclusion that the appellant is guilty.

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15. It is specifically urged by the learned counsel for the appellant that

as per the medical evidence, the injuries sustained by the

deceased are possible only when the assaulter stands at a height

above the victim. In this process, the court has guessed that

Mahavir Singh (accused-appellant) and Jagannath (deceased)

were of similar height which is nobody’s case and no evidence is

available on record to come to a conclusion that the height of the

two is same. The evidence available on record in this regard is a

statement of Dr. A.K. Upadhyay (PW 12) that the deceased was of

average Height. Now in order to establish that the bullet traveled in

a downward direction, they have explained that the position of the

gun usually kept in a downward position resting on the chest. Now

the logical fallacy is to have assumed the height of the platform

whose height has not been recorded due to sloppy investigation

by the Investigating Officers. There exists a reasonable doubt

because of the fact that the height of the platform was not

recorded and the same cannot be guessed at this point of time.

Further, the deposition of the Doctor is very clear that the shooter

might have been at a lower level. While some of the witnesses

have suggested that the deceased was on the ground while others

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have pointed out to the fact that he was standing on the platform.

Therefore, from the same set of facts, the Trial Court as well as

the High Court have arrived at different conclusions, such an

exercise cannot be undertaken by the High Court in an Appeal

unless the conclusion drawn by the Trial Court cannot be

sustained based on the facts and circumstances and when two

conclusions are possible based on the evidence available on

record, the appellate court should be all the more reluctant to

interfere with the findings recorded by the Trial Court.

16. It appears to us that the difference of opinion between the Courts

below in deciding whether or not the appellant has committed the

offence with which he is charged, mainly revolves around the

presence of alleged direct eyewitnesses at the spot, possibility of

appellant’s inflicting firearm injury to the deceased in view of the

positioning of the injury sustained by the deceased, the material

infirmity, if any, and contradiction in the ocular and medical

evidence. It is, however, clear that though, at the outset, the

accused/appellant absolutely rejected the allegation and pleaded

not guilty by taking the defence of alibi that, on the date of

incident, he was irrigating his field, but his claim has not been

supported by any evidence.

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17. Undoubtedly, Gambhir Singh (PW 7—brother of the deceased)

has accepted that certain criminal proceedings were pending

between the accused and his family members. He also admits that

one case had already been filed by the accused prior to the

incident. Admittedly, Shanti Devi (PW 8—wife of the deceased)

also has deposed that there was an altercation between her son

Vijender and Dhullu, on which they killed her husband. Thus, the

parties are admittedly in hostile terms and the incident in question

occurred in a broad day light at the residence of the deceased by

doing away his precious life. The prosecution, in support of its

version, has heavily relied upon the statements of eyewitnesses

Gambhir Singh (PW 7-complainant and also brother of the

deceased), Shanti Devi (PW 8-wife of the deceased), Madho

Singh (PW 9) and Bir Singh (PW 11-nephew of the deceased).

The learned Trial Judge disbelieved the presence of eyewitnesses

on the spot in view of delayed recording of their statements by the

Investigating Officer (PW 13) and also they remained unsuccessful

in revealing exactly as to where the bullet had struck the

deceased. We also find that nowhere in the First Information

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Report, the name or presence of eyewitness Shanti Devi (PW 8)

was mentioned as a witness to the incident.

18. The High Court has attached a lot of weight to the evidence of the

said Madho Singh (PW 9) as he is an independent witness. On

perusal of the record, it appears that the said person already had

deposed for the victim family on a number of previous occasions,

that too against the same accused. This being the fact, it is

important to analyze the jurisprudence on interested witness. It is

a settled principle that the evidence of interested witness needs to

be scrutinized with utmost care. It can only be relied upon if the

evidence has a ring of truth to it, is cogent, credible and

trustworthy. Here we may refer to chance witness also. It is to be

seen that although the evidence of a chance witness is acceptable

in India, yet the chance witness has to reasonably explain the

presence at that particular point more so when his deposition is

being assailed as being tainted.

19. A contradicted testimony of an interested witness cannot be

usually treated as conclusive. The said Madho Singh (PW 9) has

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admitted that he has been a witness in another case against the

accused for the deceased. Here it is to be seen that the said

Madho Singh (PW 9) has been acting as a pocket witness for

the family. Further, the credibility of this independent witness

can be challenged on the fact that the commotion was only

heard by the said Madho Singh (PW 9) whereas the rest of the

members of the locality did not come for help. As Madho

Singh (PW 9) is a chance witness as well as an interested witness

herein, causes suspicion and does not inspire confidence. This

admission by Madho Singh (PW 9) not only forces us to doubt the

veracity of his own deposition but also has created doubts on the

version of Gambhir Singh (PW 7).

20. We have thoroughly examined the evidence of expert witnesses

as well as other ocular witnesses. The evidence of Dr. A.K.

Upadhyay (PW 12) reveals that when the deceased sustained

bullet injury, he might have been in a standing position and the

bullet would have entered from left side and exited from right side

of the body. This fact, however, corroborated with the evidences of

PW 7 (Gambhir Singh) and PW 8 (Shanti Devi), but the

statements of PW 9 (Madho Singh) and PW 11 (Bir Singh) do not

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support it. Similarly, there were contradictions between the

statements of Dr. Upadhyay (PW 12) and that of the eyewitnesses

as to the distance and height of the assaulter while inflicting the

grievous injury to the deceased and whether the deceased was

standing on the platform (Chabutara) or came down from it while

receiving the bullet injury. We find from the statement of Dr.

Upadhyay (PW 12) that he was not clear and definite to say

exactly from what position and distance the assaulter could have

fired the gun.

21. Going by the seizure memo (Ex.P/3) apparently one gun, 12 live

and 9 empty cartridges were recovered from the appellant. The

evidences of eyewitnesses support this fact and no question was

put to the I.O. after the recovery of the gun and cartridges, that

whether he himself shot from the seized gun to create evidence.

The prosecution’s story is somewhat strengthened by the ballistic

expert’s report (Ex. P/12) which affirms that the gun seized from

the appellant was in perfect order, the empty cartridges bore the

same impression on pin as seized from the accused and the live

cartridges were actually fired by the gun seized from the appellant.

But nowhere it was mentioned that the death of the victim

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occurred by the bullet released from the seized gun. Merely the

seizure of gun and cartridges from the appellant, the ongoing

enmity between the parties on account of various criminal

litigations and the altercation and exchange of heated words

between the rival groups on the morning of the same day, cannot

establish the guilt of accused beyond reasonable doubt.

22. The position of law in cases where there is a contradiction

between medical evidence and ocular evidence can be crystallized

to the effect that though the ocular testimony of a witness has

greater evidentiary value vis-à-vis medical evidence, when

medical evidence makes the ocular testimony improbable, that

becomes a relevant factor in the process of the evaluation of

evidence. However, where the medical evidence goes far that it

completely rules out all possibility of the ocular evidence being

true, the ocular evidence may be disbelieved [See : Abdul

Sayeed v . State of M.P., (2010) 10 SCC 259]

23. In view of contradictory statements by the prosecution witnesses

coupled with the unmatched medical evidence, delay in recording

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of statements of witnesses by the I.O., non-availability of proper

site plan and in the absence of authenticated ballistic expert report

that the bullet had been fired with the seized gun of the appellant,

the Trial Court had to decide the case against the prosecution and

discharge the appellant from the charges. The High Court, upon

carrying the exercise of reappreciation of evidence, formed the

view that the reasons for delay in recording the statements of

witnesses have been properly explained; that as soon as the bullet

struck on the abdomen of the deceased, he immediately fell down

from the platform. It further observed that though the name of

Shanti Devi (PW 8) was not mentioned in the FIR, there is positive

evidence on record to establish her presence at the time of

incident along with other eyewitnesses and this fact has been

established by their corroborative statements and there is no

reason to disbelieve their statements. Here it is worthwhile to

mention that both the Courts below formed a common opinion that

the prosecution has failed to prove the charges under Sections

148 and 302/149 of IPC against the co-accused and discharged

them from those charges. The disagreement between the Trial

Court and the High Court is only in respect of the charge under

Section 302, IPC against the appellant.

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24. It is the duty of the Apex Court to separate chaff from the husk and

to dredge the truth from the pandemonium of Statements. It is but

natural for human beings to state variant statements due to time

gap but if such statements go to defeat the core of the prosecution

then such contradictions are material and the Court has to be

mindful of such statements [See : Tahsildhar Singh v. State of

UP, AIR 1959 SC 1012; Pudhu Raja v. State, (2012) 11 SCC

196; State of UP v. Naresh, (2011) 4 SCC 324]. The case in hand

is a fit case, wherein there are material exaggerations and

contradictions, which inevitably raises doubt which is reasonable

in normal circumstances and keeping in view the substratum of the

prosecution case, we cannot infer beyond reasonable doubt that

the appellant caused the death of the deceased.

25. Normally, when a culprit perpetrates a heinous crime of murder

and takes away the life of a human being, if appropriate

punishment is not awarded to that offender, the Court will be failing

in its duty. Such crime, when indulged by a criminal blatantly, is not

committed against an individual alone, but is committed against

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the society as well to which the criminal and victim are a part. It

needs no emphasis from this Court that the punishment to be

awarded for such a crime must be relevant and it should conform

to and be consistent with the atrocity and brutality with which the

crime has been carried out.

26. Here in the instant case, no doubt, an innocent man has lost his

life at the hands of another man, and looking at the way in which

the investigation was handled, we are sure to observe that it was

carried out in a lackluster manner. The approach of the

Investigating Officer in recording the statements of witnesses,

collecting the evidence and preparation of site map has remained

unmindful. The Investigating Officer, dealing with a murder case, is

expected to be diligent, truthful and fair in his approach and his

performance should always be in conformity with the police

manual and a default or breach of duty may prove fatal to the

prosecution’s case. We may hasten to add that in the present case

the investigation was carried out with unconcerned and uninspiring

performance. There was no firm and sincere effort with the needed

zeal and spirit to bring home the guilt of the accused. We feel that

there are no compelling and substantial reasons for the High Court

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to interfere with the order of acquittal when the prosecution has

miserably failed to establish the guilt of the accused. Added to this,

the accused has already undergone nine years’ of imprisonment

and we feel that it is a fit case inviting interference by this Court.

27. Resultantly, the appeal is allowed and the judgment of conviction

and order of sentence passed by the High Court is set aside.

Consequently, the appellant shall be set at liberty forthwith if not

required in any other case.

……………………………..J. (A.K. SIKRI)

…………………………….J. (N.V. RAMANA)

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NEW DELHI,

NOVEMBER 09, 2016

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